1935965 (Refugee)
[2024] ARTA 491
•23 October 2024
1935965 (Refugee) [2024] ARTA 491 (23 October 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs
Tribunal Number: 1935965
Tribunal:General Member R Lee
Date:23 October 2024
Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 23 October 2024 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – Sudan – ethnicity and political opinion – returned failed asylum seeker – born and mainly lived in another country, with no current right of entrance and residence there – minority, non-Arab ethnicity – father believed to be donating to opposition politician – siblings missing – two return visits, with police attention and unlawful departure the second time – increasing political views and activities – spontaneous and credible claims and evidence – genuine political opinions and activities not for purpose of strengthening claim – country information – humanitarian crisis and civil war – arbitrary detention and torture of civilians – return on emergency document and interrogation by intelligence service – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (6), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [In] May 2016.[1]
[1] Movement record – 26 July 2024.
The applicant, who claims to be a citizen of Sudan, applied for the visa on 9 June 2016.[2]
[2] The applicant signed the application on 8 June 2016; it was received by the Department on 8 June 2016. The delegate referred to the date of the application as 9 June 2016. Nothing turns on this.
The applicant appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. The Tribunal hearing was to be conducted with the assistance of an interpreter in the Arabic and English languages, but at the request of the applicant at the start of the hearing, the hearing proceeded without an interpreter.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
BACKGROUND
Evidence before the Department
According to information contained in his protection visa application, the applicant is a [Age]-year-old Sudanese citizen who was born in [City, Country 1]. Further, the applicant:
· belongs to [an ethnic group], and was born to Sudanese and [Country 2] citizens;
· is Sunni Muslim;
·had lived in [a] Refugee Camp, Western Sudan, Fasher run by the UNHCR;
·obtained his passport [in] 2015 from the Sudanese Embassy in [Country 1];
· can speak, read, and write in both the Arabic and English languages;
· left Sudan by ship [in] November 2015 and arrived in Australia [in] May 2016; and
·was making his own claims for protection and received assistance from an interpreter and a migration agent to complete the application.
In relation to his claims for protection, the applicant claimed he left Sudan because he is [Ethnicity], and the Sudanese government believes the applicant’s father was sending money to [an] opposition politician ([Mr A]). He has travelled to Sudan twice, once in 2004 and another in November 2015.
In 2004, the applicant was staying with his sister in Darfur, when Arab militia men attacked the village, and no one has heard from the sister since. The applicant walked to a refugee camp in Sudan and was then smuggled back to [Country 1]. In 2013, his brother was deported from [Country 1] to Sudan and the family have lost contact with the brother. Two days after arriving in Khartoum, Sudan in 2015, the police arrived at the applicant’s aunt’s house looking for him. The applicant was smuggled out of the country that night. Further, he would now be a person returning to Sudan from a western country after seeking asylum.
On 22 March 2018, the applicant provided a statutory declaration to the Department.
Protection visa application interview
The Department invited the applicant to attend an interview on 25 October 2019.
After the interview, the applicant provided written submissions; copies of 2017-2018 correspondence between himself and the Red Cross, regarding his attempts to locate his siblings through their tracing program; and a translated copy of the applicant’s 2009 passport.
The applicant claimed protection on the grounds individually or cumulatively:
(a)his non-Arab Darfuri race and [Ethnicity]/tribe;
(b)his actual or imputed political opinion against the government due to his father’s imputed support for the opposition during the conflict and his race as a non-Arab Darfuri; and
(c)his membership of a particular social group being either failed asylum seeker returnees or asylum seekers who have lived in a Western country.
Delegate’s decision
The applicant did not provide the Tribunal with a copy of the delegate’s decision.
The delegate refused to grant the visa on the basis that there was no real chance of serious harm for reasons of the applicant’s [Ethnicity] or membership of a particular social group ‘Sudanese from Darfur’ or ‘[Ethnicity] non-Arab ethnicity with Darfurian origins’, based on the then country information.
Evidence before the Tribunal
The review application
On 20 December 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 11 August 2022, the applicant advised that his father passed away in July 2022, and that he originally came to Australia on a [Specified] visa in May 2016.
On 23 July 2024, the Tribunal sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete.
On 25 July 2024, the applicant provided the Tribunal with a copy of the completed pre-hearing information form.
On 25 July 2024, the Tribunal sent the applicant an invitation to attend a hearing.
On 30 July 2024, the applicant sent an email to the Tribunal saying he would provide written submissions and a statutory declaration.
On 8 August 2024, the Tribunal wrote to the applicant asking the applicant to confirm whether the claims under the heading ‘Part 4: Protection Claims’ are correct, and if not to update the Tribunal as to the applicant’s claims.
On 14 and 15 August 2024, the applicant provided a statutory declaration from the applicant, responding to the Delegate’s decision and updating his protection claims, with additional supporting documents.
On 20 August 2024, the applicant also provided written submissions.
The hearing: supporting documents and oral evidence
At the start of the hearing, the applicant confirmed that all the documents which had been sent to the Tribunal as part of the review process constituted all the necessary documents before the Tribunal. The applicant said there were no other documents.
The applicant gave the following oral evidence.
The applicant confirmed that he generally does not tell people he has a protection visa application on foot, because together with his political views he believes it effects his standing within the Sudanese community. He asked to proceed without an interpreter, because he had met the interpreter who had been booked by the Tribunal for the hearing through his [work] with the [Organisation]. The people who do know of the application are some of the applicant’s friends in Melbourne.
The applicant met his half-sister, living in [Village], North Darfur, for the first time when he went to Sudan in 2004. [Village] is to the north of the capital of North Darfur, El Fasher. He travelled there to complete his last year in high school, because if he did so he would be able to apply to attend university in Sudan. He was about [Age]. His father had wanted him to be [an occupation], but because of the father’s legal dispute in [Country 1] with his former sponsor, he had no source of income and was unable to put the applicant through school in that country. Moving to Sudan was the only way for the applicant to complete his study.
As he grew up, the applicant met a number of people who travelled from Sudan to [Country 1] for religious or business purposes, because they visited and stayed at his family’s house. He grew up knowing his heritage and his people, his tribe but his family did not discuss the political and security situation of Sudan. None of his [brothers or sisters] had been back to Sudan before the applicant went in 2004. North Darfur is where his family relates to the earth.
In 2004, the applicant said he knew nothing of the political situation in Sudan when he was about [Age] years of age. He just wanted to finish his education. He flew into Khartoum, stayed at his paternal aunties’ house, and then drove to [Village]. The applicant was at his half-sister’s house when the village ‘was attacked by the Janjaweed, causing the applicant to flee to a place which became a refugee camp during the dark of night. The family has not heard from the half-sister again.
The applicant does not speak Sudanese dialect, and so he was easily identifiable as someone different because of his accent. He arranged to speak with his father via an elder in the camp, and it was arranged the applicant would be taken by a shepherd to Khartoum, from where he flew back to [Country 1]. At that time, the applicant had an exit visa from Sudan.
In 2013, one of the applicant’s brothers was deported from [Country 1] to Sudan, and he was never heard from again. The applicant does not know but presumes that he was returned to Khartoum.
In 2015, the applicant was unlucky to have an issue with the [Country 1] sponsor, when he worked as [an occupation]. The applicant did not have the permission to transfer sponsors within [Country 1], and so thought that if he returned to Sudan at the age of about [Age], he could buy a new visa and find a new sponsor. He expected the process to take a month or two, and he was to stay with his aunt in Khartoum. The aunt was more like a cousin than a sister to the applicant’s father. The father’s brother and sisters were in [Country 1].
At that time, the applicant was concerned that he was not deported. Whilst he had experienced the 2004 situation, he knew what was happening in Darfur, and he had known about the vote for the President in about 2010, he did not know much about the Sudanese situation because he had been living in [Countries 1 and 3].
The applicant’s father is big in the community, and he paid money to the person in the camp in 2004 to pay the shepherd to escort the applicant, and remitted money back to Sudan regularly to help people, including the aunt in Khartoum and the [Ethnicity] community.
In 2015, after the applicant landed about 10pm at night on his Sudanese passport, nothing of significance happened at Khartoum airport. He stayed with the aunt and attended the market the next night with the aunt’s son to look for people with the visa to work in [Country 1]. His aunt told him people came to the house whilst he was out and asked about his presence, whether the son of the applicant’s father was there, which she denied and told the applicant he had to leave the country. The second night he slept somewhere other than his aunt’s, and then he took several buses to the seaport some twelve hours away, arriving about 4pm. He was worried about leaving Sudan. He handed his passport to a person, as arranged by his aunt, and he did not have a visa to leave Sudan. After sunset, he was ushered to the boat and then he was handed back his passport. He himself did not speak with any immigration official. The stamp in his passport is a date which does not exist (being 37 November 2015).
The applicant does not know any family in Sudan now. He has been told that his aunt and her family have fled to [Country 4]. He speaks Arabic, with a [Country 1] accent and dialect. He is referred to in the Australian Sudanese community, by putting ‘the [Country 1 nationality]’ after his first name. He is a proud Sudanese, was brought up as Sudanese and loves his country, the country where his father came from.
The applicant holds a strong political view about the current situation, which he believes started in 2019 when President al-Bashir was overthrown by the people. The applicant began to be more involved in politics, supporting the revolution and believing in a change of regime. The war erupted in Sudan in 2023 between the SAF and the RSF, for which the applicant said he was known for saying was just to stop the change from happening. The RSF is the same militia as the Janjaweed, which was used by the SAF to attack the people of Darfur in 2004, and they are now fighting to control the country for their own interest. It is the people of Sudan and the future of the country who suffer, and this led to the applicant’s involvement in the [Organisation]. Members of the Sudanese diaspora had been choosing one side or other of the conflict, which was polarising, and the [organisation] held a rally to say they were against the war. The applicant said there was a responsibility of the diaspora to not bring the conflict into Australia, and they were working with [Australian authorities]. They were also involved in meeting [a Public figure] to discuss the Sudanese situation and supporting humanitarian needs. They have been collecting money for Sudanese hospitals. The applicant is against the war and the current regime. The [organisation] was formed in [Year], and the applicant was involved from the start. There is a communication team, a working group of about ten people.
The applicant fears for his life if he returns to Sudan, because or the war in Sudan and his politically activity in Australia against the war and against both parties. The applicant said that the regime has been there over thirty years, it just changes its face, and the 2019 hopes for Sudan have not been realised. The [Sudanese community] are connected with people back in Sudan and the applicant fears that with his [Ethnicity] ethnicity having been targeted by the regime from 2024 to 2009 and with his dialect, he would be an easy target. The Sudanese authorities would know he was his father’s son. The [Organisation] is on social media, so known within the Australian Sudanese diaspora as well as in Sudan, and the donations to Sudan are known to come from the [Organisation]. The applicant believes his dialect will prompt more questions and investigations as to who he is.
When asked if he would be perceived as being for or against any faction, in 2004 he was targeted by RSF, and would continue to be now as a witness to what happened in 2004, and as a [Ethnicity] (non-Arab). If he goes to the SAF, his heritage and the fact of being a witness and his stand against the regime and his ideas about the democratic system, he would be an easy target. The applicant could not imagine he would fight if he returned to Sudan, even though he would be perceived as fighting fit. He hopes that the change that started in 2019 succeeds, and the whole regime is overturned.
When the Tribunal raised its concern about any fear based on the payment made by the applicant’s father to get the applicant out of Sudan in 2004 because of the passage of time and the remarkable things which have happened in Sudan since at least 2019, the applicant said this payment started the whole situation between his father and the Sudanese consulate in [Country 1]. The consulate made it difficult for the family to renew their passports and the father had to give his allegiance to the Sudanese government. As the father and the applicant are of the [Ethnicity] community, the government targeted them because they wanted to replace the African people with Arabic people in Darfur.
Country information
The Tribunal is mindful of its obligation to consider information provided by the Australian Department of Foreign Affairs (‘DFAT’), but in this situation the DFAT Country Information Report Sudan (27 April 2016) is significantly out-of-date.
A current summation of the country’s situation, according to the Department of Foreign Affairs and Trade, is that the Republic of the Sudan gained its independence from the United Kingdom on 1 January 1956. South Sudan seceded following a referendum in 2011. After the ousting of long-term president, Omar al-Bashir, in April 2019, a joint civilian-military government took on a power-sharing agreement. In October 2021, the Sudan military seized power. The UN took on a mediation role to keep Sudan on track to hold elections. On 15 April 2023, a conflict broke out between the Government and the Rapid Support Forces (RSF) which led to an outbreak of civil war. The ongoing conflict has caused the death and displacement of millions of people.
In Sudan - Country Focus - Security situation in selected areas and selected profiles affected by the conflict by the European Union Agency for Asylum (26 April 2024), it is stated that what started as a pure ‘power struggle’ between two military leaders morphed into a full-fledged nationwide war, spanning large portions of the country: most notably, as of January 2024, Khartoum, Darfur, the Kordofans, and Al Jazirah. Both sides have been accused of indiscriminate attacks against civilians, as well as war crimes and crimes against humanity. Ethnically motivated killings have been perpetrated in Darfur, and notably in West Darfur, ever since the outbreak of the war in April 2023. Non-Arab/African groups, and notably Masalit, have been targeted by the RSF and allied Arab militias, however Masalit were not the only target, rather ‘all ethnicities that did not join the Janjaweed are targeted… including Arab tribesmen.’[3]
[3] 'Sudan - Country Focus - Security situation in selected areas and selected profiles affected by the conflict', European Union Agency for Asylum (EUAA), 26 April 2024, 20240510083832 at [1.1.1] and [2.4.2].
Further, against this general backdrop, the UN Panel of Experts on Sudan reported, in its January 2024 report, that RSF, and ‘sometimes’ the Sudanese Armed Forces (SAF), ‘harassed, arbitrarily arrested, detained, and tortured civilians’ in various Darfur capitals ‘upon suspicion’ that they were aligned with the opposing warring party due to their ethnicity. This impacted both African and Arab communities.[4]
[4] Ibid at [2.4.2].
In the International Crisis Group’s ‘CrisisWatch 2024, July Trends and August Alerts’, it is stated that:
Clashes continued in western North Darfur and central West Kordofan states. RSF’s siege of North Darfur capital, El Fasher, persisted as battles raged across state; all sides targeted civilians allegedly supporting their opponents, threatening to exacerbate intercommunal conflict. Humanitarian crisis remained dire, with World Health Organization official 16 July saying fighting had made access to El Fasher “impossible”. In West Kordofan, RSF 3 July seized strategic town of al-Meiram near South Sudanese border as it consolidated control over almost entire state except Babanussa city.
In May 2023 Department of Home Affairs had issued the following update on the situation in Sudan (without references):
Armed conflict between the Sudanese Armed Forces (SAF) and Rapid Support Forces (RSF) erupted on 15 April 2023. Led by General al-Burhan and General ‘Hemedti,’ respectively, fighting between the two forces initially concentrated in and around the capital, Khartoum. This involved heavy artillery fire and shelling particularly around strategic locations such as the Presidential Palace, Khartoum International Airport, the state broadcaster, and bridge over the Nile River. Heavy weapons and explosives have been deployed in densely populated areas. The SAF have conducted targeted air strikes on RSF locations. Clashes have spread to other major towns particularly in the West Darfur region… however some regions have reportedly stabilised since this initial fighting. At the time of publication, fighting between the two forces in Khartoum has lasted 27 consecutive days. Ceasefire agreements have frequently been violated by both the SAF and RSF. An initial 24-hour ceasefire agreed by the two forces effective from 18 April 2023 did not hold, as did a ‘series of short ceasefires’ throughout the week including those intended over the Eid period. A United States and Saudi Arabia mediated 72-hour ceasefire with effect from 25 April 2023 and a further 72-hour extension agreed by the parties on 30 April 2023 also failed. South Sudan mediated a week-long ceasefire agreement with effect from 4 May 2023, however that has also not quelled the fighting. The RSF and SAF have each blamed the other for truce violations. However, both sides appear to have continued fighting to achieve an outright victory or otherwise build a strategic advantage for future negotiations. A protracted conflict situation is predicted. Open-source intelligence reporting indicates the RSF and SAF ‘differ significantly in capability and strength,’ with the SAF having more personnel and equipment including air support. Neither party are currently considered to be in reach of a military victory. Both forces control territory and strategic locations with one source estimating the RSF holds approximately 80 per cent of Khartoum. Envoys from the RSF and the army attended ‘pre-negotiation’ discussions on 6 May 2023 in Jeddah, Saudi Arabia which international mediators hope will commence negotiations to end the conflict. However, reportedly the parties are only considering a humanitarian truce, rather than a cessation of hostilities. While talks have continued through early May, with the agenda focussing on a ceasefire and humanitarian aid corridor, no outcome was reported at the time of publication.
Hundreds of civilians have been killed and thousands injured in the conflict. According to the Sudan Federal Ministry of Health as of 1 May 2023, at least 550 individuals have been killed and over 4,900 injured. The World Health Organisation advised on 9 May 2023, estimates indicated 604 deaths and more than 5,000 injured. The actual death toll is likely to be higher. Civilians have been trapped in urban areas by heavy fighting and shelling. Hospitals and other medical facilities have been targeted by air strikes or otherwise damaged in the fighting, and in some cases occupied and looted by armed groups. Hospitals in Khartoum have been largely unable to deliver medical treatment to civilians with makeshift medical clinics established to assist the sick and injured where possible. Outside Khartoum, civilians have been affected by fighting between the two forces, as well as violence between other ethnic or tribal groups.
Human rights violations against civilians are reported. The RSF are accused of raiding, looting, and occupying civilian homes, primarily to embed themselves in residential areas for strategic purposes, however there are reports of residents being assaulted and questioned regarding their political or military affiliations. The RSF have reportedly established checkpoints across Khartoum where they search civilians and check mobile phones for contact with the army. Armed groups, primarily RSF soldiers, have been more broadly implicated in robberies, extortion, and assaults of civilians particularly across Khartoum. Foreign diplomats, United Nations staff and other aid workers have also been targeted by armed groups.
Emerging reports indicate medical staff have been targeted for perceived RSF affiliation. Doctors and activists delivering services to civilians have been accused of assisting or cooperating with the RSF. Doctors have reportedly received death threats from the military, or pro-government supporters. The SAF arrested two members of ‘resistance committees’ driving an ambulance on 7 May before releasing them two days later, raising concerns of a further crackdown on civil society groups even amidst the conflict…
Hundreds of thousands of civilians have been forcibly displaced since the start of the conflict. According to the United Nations High Commissioner for Refugees (UNHCR), as of 6 May 2023, approximately 123,000 people have departed Sudan…and on 9 May 2023, the International Organisation for Migration (IOM) advised 700,000 people have been internally displaced. 860,000 individuals are projected to leave Sudan by October 2023...Refugees have crossed into neighbouring countries of South Sudan, Chad, Ethiopia, Egypt and Central African Republic. Khartoum airport is closed, and civilians have struggled to depart the city safely with high demand for transport including buses and cars. Some have fled on foot. Civilians have travelled to the Port of Sudan to escape by boat, where conditions are reportedly deteriorating due to the thousands of displaced persons awaiting evacuation, and lack of supporting services and infrastructure for such numbers. Others have travelled to the Egyptian border where there are significant backlogs, particularly for Sudanese men aged 16 and 50 who require visas to enter.
The United Nations High Commissioner for Refugees (UNHCR) has urged countries to cease forced returns to Sudan. In a Position Paper issued 5 May 2023, the UNHCR called on countries to allow all civilians fleeing Sudan non-discriminate access to their territories, suspend negative decisions on asylum applications, and consider sur place claims. UNHCR advises a non-return policy, noting that a ‘bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.’ UNHCR further advises that in light of the volatile situation across Sudan, it ‘does not consider it appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative.’ No specific groups have been identified as in need of international protection, however the position paper outlines the risk to all civilians in Sudan.
Foreign governments have evacuated their citizens including Sudanese dual citizens. Western countries including the United States, United Kingdom, Canada and Australia completed air evacuations of diplomatic staff and other citizens. Foreign nationals from ‘less resourced’ countries have faced greater difficulties leaving with the surging costs of fuel and transport, and a deteriorating security situation including the risk of being targeted by armed groups. Evacuations of foreigners have continued on a limited basis through early May. While neighbouring countries have continued to receive refugees with the assistance of international agencies, at the time of publication, there are no tailored international protection mechanisms available to Sudanese fleeing the conflict.
The UNHCR Position on Returns to Sudan of May 2023 states (without references):
1.On 15 April 2023, fighting broke out between the Sudanese armed forces (SAF), led by Abdelfattah al-Burhan, and the Rapid Support Forces (RSF), a paramilitary force led by Mohamed “Hemedti” Hamdan Dagalo, in multiple cities across the country, including the capital Khartoum. Hundreds of civilians are reported to have been killed, and thousands injured. The widespread fighting has led to shortages of food, water, medicine, fuel and electricity, and has left civilians without access to essential services.
2.Prior to the eruption of the current conflict, Sudan was already affected by a major humanitarian crisis, with 3.7 million IDPs and 15.8 million people in need of humanitarian assistance, including approximately 11 million people in need of emergency assistance. Concerns have been expressed about a significant increase in humanitarian needs as a result of the fighting, while humanitarian response operations face major challenges due to the security situation.
3.Despite calls by international and regional actors to end the hostilities, the fighting continues unabated. Large numbers of civilians have been forced to flee areas affected by the fighting, including people who were already internally displaced as a result of previous conflicts in Sudan, and refugees from other countries who had sought safety in Sudan. In addition to new internal displacement, significant flows of people fleeing Sudan to surrounding countries have been observed, including notably flows of Sudanese nationals to Chad and returning South Sudanese refugees to South Sudan, as well as outflows to the Central African Republic, Egypt, Ethiopia, Libya and Eritrea…
6.In view of the volatility of the situation in the entire territory of Sudan, UNHCR does not consider it appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative…
8.In light of the current volatility of the situation in Sudan, UNHCR calls on asylum States to suspend the issuance of negative decisions on applications for international protection by Sudanese nationals or by stateless persons who were former habitual residents of Sudan. The suspension should remain in place until such time as the situation in Sudan has stabilized and reliable information about the security and human rights situation is available to make a full assessment of the need to grant international protection
to individual applicants…13.As the situation in Sudan is volatile and may remain uncertain for some time to come, UNHCR calls on States to suspend the forcible return of nationals and stateless persons who were habitual residents of Sudan, including those who have already had their asylum claims rejected. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.
The Office of the Commissioner General for Refugees and Stateless Persons COI Focus Sudan Risk upon Return (6 February 2018) stated:
Several sources describe the procedure upon arrival at Khartoum Airport. Passengers first pass through an immigration check, followed by a security check by the intelligence service (NISS), which is strongly present at the airport. The British and other western embassies, as well as UNHCR, IOM, Landinfo and a number of NGOs interviewed by the British-Danish mission, declared that they were not aware of Sudanese returnees having been ill-treated by the Sudanese security services. The British embassy wrote that voluntary or forced returnees, including rejected asylum applicants, do not face a risk upon return. Nevertheless, several sources pointed out that returnees may be held for interrogation. According to the British embassy in Khartoum and IOM, these interrogations do not last long unless the person concerned is a “potential person of interest”. A number of non-governmental and international sources consulted by the CGRS stated however that voluntary or forced returnees, including rejected asylum applicants, are always interrogated by the NISS and, depending on their answers and on circumstances, they are free to go or detained and possibly tortured. The way a returnee is treated also depends on whether the media and civil society are informed of the return and on whether the returnee’s family is informed, according to Sudanese sources. According to IOM, holders of an emergency travel document (ETD) will be questioned more extensively or, according to a number of non-governmental sources, are at risk of being targeted, arrested and detained by the authorities. Persons without a compulsory exit visa will also attract attention upon their return to the airport and may be prosecuted, but not necessarily for political reasons, according to Landinfo.
All sources consulted declared that there is no independent local or international agency or organization structurally and systematically monitoring forced returnees upon and after their arrival in Sudan. The British Waging Peace tries with limited means to conduct post-deportation monitoring. Lawyers and human rights organizations have very rarely access to persons detained by the NISS. The ECtHR established a non-exhaustive list of risk profiles: non-Arab Darfuris; persons who already had problems with the security services; persons who criticized the regime in the media; persons who had contacts with the opposition abroad; persons having personal or family ties with members of the opposition or with political opponents; Darfuris who travelled abroad. Various sources stated that Sudanese nationals from conflict zones such as Darfur, Southern Kordofan and Blue Nile are at serious risk upon return. Both the ECtHR and the UK Upper Tribunal have ruled against the repatriation of non-Arab Darfuris. A number of contacts consulted by the CGRA consider that the Fur, Massalit and Zaghawa are the ethnic groups which are most targeted. Other sources, including western embassies, the UK Home Office and IOM, stated that an ethnic profile does not pose sufficient risk and defended a more individualised approach which would also take into account the political profile. All governmental and non-governmental sources agreed that Sudanese opponents risk persecution upon return if they were politically active abroad, as the Sudanese diaspora is being monitored by Sudanese intelligence. The British Upper Tribunal considered that not all political opponents are persecuted, only those whose political activity is fairly high-level. According to some non-governmental sources, the mere fact of applying for asylum is enough to create a “political profile”. Finally, other sources, including a Sudanese professor, ICG and HRW, were of the view that ethnic and political profiles are often intertwined and that it is the combination of a person’s ethnic background and his political activities that create a risk. Human rights organizations and the media documented several cases where repatriated Sudanese have encountered problems with the authorities. Amnesty International interviewed a number of Sudanese repatriated from Jordan, mainly Darfuris, who were ethnically profiled upon their return and subjected to harsh and degrading treatment. Other sources mentioned the arrest, detention, ill-treatment and torture, and even the murder, of Sudanese who returned from Israel, and emphasized the existence of a heightened risk for returnees from Israel. HRW considered that a stay in Israel creates a situation of sur place refugee. A number of testimonies from Sudanese repatriated from EU countries, including Italy, France and the UK, mentioned arrest, detention, ill-treatment and, in some cases, torture. Waging Peace reported the ill-treatment of a number of Sudanese repatriated from the UK and stressed that not only Darfuris are at risk but also members of other ethnic groups. The British Home Office noted that most of these testimonies were given by Sudanese from conflict areas or by politically active Sudanese. Non-governmental sources reported some cases of returnees who entered Sudan without problems but were killed later on. The NISS, whose remit covers political, military, economic and social threats, has virtually unlimited immunity. Various governmental and non-governmental sources accuse the NISS of ill-treatment, torture and other human rights violations. According to various sources, the NISS also shadows the diaspora, although it does not have the means to monitor everyone.
On page 33, the report stated that in January 2017 Waging Peace published two testimonies from Sudanese who had been recognized as refugees by UNHCR in Jordan but were nevertheless forcibly repatriated. A.A.O., from Darfur and of Tunjur ethnicity, took part in the demonstrations in front of UNHCR office in Amman. He was detained for three days in Khartoum and interrogated about his ethnic background (tribal affiliation) and his contacts with the Christian community. He declared that he was beaten and showed traces of lashings.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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.
REASONS AND FINDINGS
The applicant travelled to Australia on a Sudanese passport and claims to be a Sudanese citizen. The delegate had no concerns about his claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a citizen of Sudan and has assessed his protection claim accordingly.
The delegate found that the applicant did not have a right to enter and reside in a country other than Sudan.[5] There is nothing before the Tribunal which suggests to the contrary, and the Tribunal finds that s 36(3) of the Act does not apply to the applicant.
[5] Delegate’s decision, page 7 (but cf page 11).
The applicant claims if he is returned to Sudan he will be detained, beaten, tortured and killed by members of the RSF and the SAF, members of the intelligence services and/or other government authorities on account of his [Ethnicity] and non-Arab Darfuri ethnicity, his association with his father and his imputed anti-government political opinion, his anti-war political activities in Australia and political opinion against the RSF and SAF, and because he would be returning to Sudan after living in Australia for a long time and as a failed asylum seeker.[6]
[6] Statutory Declaration signed 14 August 2024 at [4].
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal considers the applicant to be a credible witness who provided spontaneous and full responses to its questions at the hearing. The Tribunal accepts the applicant’s oral account at the hearing of his experiences and political opinions to be truthful. The applicant’s testimony at the hearing was also consistent with the two statutory declarations made by the applicant on 22 March 2018 and 14 August 2024, and the Tribunal accepts the contents of those statutory declarations to also be credible. The statutory declarations contain some speculation as to what happened to the applicant’s brother upon his forced deportation back to Sudan in 2013, but the Tribunal otherwise accepts the applicant’s evidence in the statutory declarations as to his own experiences, political opinions, and his beliefs as to why certain things happened to his father and his brother.
Based on the two statutory declarations and his evidence at the hearing, the Tribunal accepts the following:
(a)the applicant was born in [Country 1]; his father was from North Darfur, Sudan and his mother was from [Country 2]; the applicant is from the [Ethnicity] tribe of the Darfurian region of Sudan and so is of [Ethnicity] (non-Arab) ethnicity. The applicant is a proud Sudanese man;
(b)the applicant had one-half sister living in North Darfur, Sudan, from the father’s former wife and with whom the applicant has no relationship; and the applicant’s other siblings were born and raised in [County 1] like himself, with one sibling now living in [Country 4]. The father’s relation, referred to by the applicant as an aunt, used to live in Khartoum with her family, but has now fled to [Country 4] and as far as the applicant is aware he does not have family in Sudan anymore;
(c)in 2004, the applicant was staying with his half-sister in North Darfur when their village was attacked by the Janjaweed, the applicant fled but the half-sister has not been heard from since. The applicant’s father paid money to someone in the refugee camp to have the applicant escorted back to Khartoum, from where he flew back to [Country 1];
(d)the applicant’s brother was deported from [Country 1] in 2013 to Sudan, presumably Khartoum, and the brother has not been heard from since;
(e)the applicant returned to Sudan in 2015 for the purposes of renewing his visa and sponsorship in [Country 1] but fled after his aunt warned that government agents had been looking for him;
(f)the applicant travelled to Sudan in 2004 and returned again in 2015, even after the events in 2004 and the disappearance of his brother after being deported to Sudan in 2013, because of difficulties with the father’s or the applicant’s visa and sponsorship in [Country 1], to further his education in 2004 and to obtain another sponsor in 2015;
(g)the applicant left Sudan in 2015 with the assistance of a third party, without an exit visa and with a stamp in his Sudanese passport of ’37 November 2015’;[7]
(h)having grown up in [Country 1], the applicant speaks Arabic with an accent and a [Country 1] dialect, resulting in his nickname of ‘the [Country 1 nationality]’ within [the Sudanese community].
[7] As legible in the applicant’s passport provided to the delegate.
Like the delegate, in accordance with s5J(1)(a) of the Act, the Tribunal is satisfied that the applicant fears persecution for reasons of his [Ethnicity] and his membership of a particular social group, a ‘Sudanese from Darfur’, to which the Tribunal adds ‘of non-Arab Darfuri ethnicity’, and a ‘Failed Asylum Seeker who resided in and returned from a western country.’ The Tribunal is further satisfied that the applicant fears persecution because of his own and the imputed political opinion of his father, based on what he said at the hearing.
The circumstances in Sudan have changed considerably since the delegate’s decision in December 2019. The Tribunal accepts the country information above, and based on that information finds Sudan is in the midst of a civil war, which broke out after a conflict between the Government and the Rapid Support Forces (RSF) from 15 April 2023 and a protracted conflict situation is predicted. Ethnically motivated killings have been perpetrated in Darfur, and notably in West Darfur, ever since. Non-Arab/African groups have been targeted by the RSF and allied Arab militias and ‘all ethnicities that did not join the Janjaweed are targeted.’ Both sides of the conflict, the RSF and the Sudanese Armed Forces (SAF) have ‘harassed, arbitrarily arrested, detained, and tortured civilians’ in various Darfur capitals ‘upon suspicion’ that they were aligned with the opposing warring party due to their ethnicity. This has impacted both African and Arab communities.
Based on the country information, the Tribunal further accepts that just prior to the hearing, the situation was that clashes continued in western North Darfur, with the RSF’s siege of the North Darfur capital, El Fasher, persisting as battles raged across state, with the fighting having made access to El Fasher ‘impossible’. All sides targeted civilians allegedly supporting their opponents, threatening to exacerbate intercommunal conflict and the humanitarian crisis remained dire. The Tribunal accepts that in light of the volatile situation across Sudan, it is not appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative.
Since the outbreak of war, the Tribunal finds that the applicant assisted in forming and has been involved in the [Organisation], based on the statutory declarations and his evidence at the hearing. The Tribunal accepts the applicant’s evidence that when he was about [Age] and travelled to Sudan in 2004, he knew nothing of the political situation in Sudan, and that at the age of about [Age] when he returned in 2015, he had known about the election in 2010 and what was happening in Darfur, but otherwise he did not know much about the Sudanese situation because he had been living in [Countries 1 and 3]. The Tribunal also accepts that in April 2019, after the applicant had arrived in Australia based on the movement records, the long-term president, Omar al-Bashir, was ousted, based on the country information, and the applicant is of the opinion that the hope for Sudan arising out of these events has yet to be realised, based on his evidence at the hearing.
As the Tribunal accepts that the applicant is a proud Sudanese man with genuine concerns for the people and future of Sudan and the war broke out in Sudan only after the applicant arrived in Australia, based on the movement records, the Tribunal is satisfied that the applicant engaged in the conduct of initiating and engaging in anti-war activities in Australia otherwise than for the purpose of strengthening his claim to be a refugee and is not satisfied that the applicant does not have a reasonable explanation as to why this claim or evidence was not presented earlier. The Tribunal is therefore not bound to disregard this conduct pursuant to s 5J(6) of the Act, nor is it bound to draw an adverse inference as to the claim.
The Tribunal accepts, based on his anti-war activities in Australia and his evidence, that if he returns to Sudan, although he may be perceived as a physically fighting fit adult male in his late [age range], the applicant will choose not to fight for any side because of his anti-war stance. The Tribunal finds that this political opinion would compound the real chance of serious harm to the applicant as a [Ethnicity] man, based on the country information above, that civilians are harassed, arbitrarily arrested, detained, and tortured in various Darfur capitals by the RSF and the SAF ‘upon suspicion’ that they are aligned with the opposing warring party due to their ethnicity.
The Tribunal further finds that the applicant, if he returns to Sudan, will be required to travel on an emergency travel document (ETD), because his Sudanese passport has expired, and the applicant has no Sudanese exit visa for the last time he left Sudan in 2015, because of the circumstances in which he fled, based on his evidence.
Based on the country information above, the Tribunal accepts that voluntary or forced returnees, including rejected asylum applicants, are always interrogated by the Sudanese intelligence service (NISS) at the border and, depending on their answers and on circumstances, they are free to go or are detained and possibly tortured. The Tribunal also accepts, based on the country information, that holders of an ETD will be questioned more extensively or are at risk of being targeted, arrested, and detained by the authorities. Persons without a compulsory exit visa will also attract attention upon their return to the airport and may be prosecuted, but not necessarily for political reasons. The country information makes it clear that non-Arab Darfuri’s, and non-Arab Darfuri’s who have travelled abroad, have a risk profile, and on this basis the Tribunal accepts that the applicant has a risk profile immediately upon returning to Sudan. The Tribunal accepts the country information that in 2017, a person from Darfur and of [Ethnicity] was detained upon his forced repatriation, claimed to have been beaten, and showed traces of lashings.
The Tribunal finds that when the applicant is interrogated upon his return to Sudan by the NISS as a rejected asylum seeker, with an ETD and no exit visa, his [Country 1] accent and dialect will be revealed, based on what the applicant said at the hearing. This is in addition to his non-Arab [Ethnicity] Darfurian ethnicity, the connection to his father, his personal experience in the 2004 events in Darfur which makes him a witness to those events and his own political opinions about the current situation in Sudan will be brought to the attention of the authorities and for which cumulatively the Tribunal considers that the applicant will not be free to go but that there is a real chance of him being detained and possibly tortured by the authorities.
The Tribunal notes the country information that the way a returnee is treated also depends on whether the media and civil society are informed of the return and on whether the returnee’s family is informed. The Tribunal has found that the applicant has no family in Sudan and so does not a have a family present in Sudan to advocate on his behalf. There is nothing before the Tribunal to suggest that the Sudanese media and civil society will be made aware of the applicant’s return or be willing to advocate on his behalf.
The Tribunal finds that there is a real chance of serious harm to the applicant on arriving in Sudan due to his race, and membership of particular social groups of ‘non-Arab [Ethnicity] of Darfurian origin’ and ‘returned failed asylum seeker’ and ‘person without a valid exit visa from Sudan’, based on these facts about the applicant which cannot be changed and which will be discovered during the interrogation which will occur based on the country information. Whilst the applicant maintains he will be also be targeted as his father’s son, the Tribunal considers this one factor on its own would not give rise to a real chance of harm, based on the passing of time, the passing of his father and the current conflict in Sudan, but accepts that it forms part of the factual matrix which contributes to the cumulative real chance of harm in the reasonably foreseeable future if the applicant returns to Sudan. The Tribunal also finds that the applicant’s own political opinion being against the current regime and being against the conflict being conducted by RSF and SAF, which it would be unreasonable for the applicant to modify, are likely to be discovered during the interrogation and add to the real risk of serious harm the applicant faces on arriving in Sudan.
Even if the applicant was eventually able to pass through the airport on the occasion of his return, the Tribunal finds that there is a real chance of serious harm in the reasonably foreseeable future, because the parts of Sudan to which the applicant would return, North Darfur or Khartoum, are the subject of ongoing conflict between the RSF and SAF, where the applicant faces serious harm because of his ethnicity as a non-Arab Darfurian of [Ethnicity] and his membership of the particular social group ‘fighting fit men who are anti-war’. The Tribunal accepts, based on the country information, there is no part of Sudan to which the applicant could travel safely or live safe from serious harm. The Tribunal finds that based on the country information there is no effective state protection, due to the history of the SAF and RSF, the ongoing conflict and the ethnic targeting, based on the country information.
On this basis, the Tribunal is satisfied that there is a real chance of serious harm in the reasonably foreseeable future, if the applicant returns to Sudan based on his [Ethnicity], his status as a Darfurian (non-Arab), as a holder of an ETD without a valid exit visa from Sudan and a rejected asylum applicant, and with political opinions that are anti-war and anti-the current regime. The Tribunal finds that those reasons would be the essential and significant reasons for the applicant’s persecution by the Sudanese authorities, including the SAF, and the RSF, and that the persecution relates to all areas of the country and would be systematic and discriminatory, based on the country information.
Conclusion
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 sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of Hearing: 21 August 2024
Representative for the Applicant: Ms Jennifer Anne Blakeman
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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