2001814 (Refugee)

[2020] AATA 4531

2001814 (Refugee) [2020] AATA 4531 (25 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2001814

COUNTRY OF REFERENCE:                   South Sudan

MEMBER:Jason Pennell

DATE:25 August 2020

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 25 August 2020 at 3.48pm

CATCHWORDS

REFUGEE – Protection Visa – South Sudan –claims to be stateless – race – ethnic Dinka– national of South Sudan – particular social group –person suffering from physical and mental health issues – father is a rebel fighter – mental health issues – extensive criminal record – carrier of hepatitis B – not culturally assimilated as a Dinka tribal member – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499, 501

Migration Regulations 1994, Schedule 2

CASES

Calado v MIMA (1998) 81 FCR 450
Chan Yee Kin v MIEA (1989) 169 CLR 379
Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120
MIAC v SZQRB [2013] FCAFC 33
MIMA v Darboy (1998) 52 ALD 44
SZRTC v MIBP [2014] FCAFC 43

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 January 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant, who claims to be stateless, applied for the visa on 3 November 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act).

3.The applicant appeared before the Tribunal on 4 June 2020 to give evidence and present arguments. The hearing was held by via video conferencing facilities using the Microsoft Teams application.

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

CRITERIA FOR A PROTECTION VISA

5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

6.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.

7.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).

8.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.

1. 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

1. 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

1. The issue in this case is whether the applicant is a refugee as defined by s 36(2)(a) of the Act or whether he is at a real risk of significant harm, as required by s 36(2)(aa), if he were to be removed from Australia and returned to South Sudan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

The Applicant’s Identity

1. The applicant claims that he was born on [Date 1] in [Area 1] Displaced Person Camp (‘[Area 1]’), Sudan.[1] He a member of the Dinka ethnic group and his family are of the Christian faith. The applicant’s family left [Area 1] in 1992 and over the next two and half years spent time at several internally displaced persons camps in [Sudan].[2] In 1995, when the applicant was [age] years old, he and his family travelled to Kenya and spent eight years living in [a] refugee camp.[3]

   [1]    Applicant’s submission to the Tribunal dated 28 May 2020

   [2]    Applicant’s submissions dated 28 May 2020

   [3]    ibid

2. The applicant travelled to Australia [in] December 2004 when he was [age] years old, with his eldest sister Ms [A] and her five children. The applicant is dependent on [Ms A]’s Class XB Subclass 202 Global Special Humanitarian visa.[4] The applicant provided the department with a copy of a [Ms A]’s travel document/entry permit for Australia (incorporating an Australian Visa label) issued in Nairobi, Kenya[5] which confirms that the applicant is her brother and that he was born on [Date 1]. In addition, Humanitarian visa applications by his sister and his mother, [Ms B],[6] both confirm that the applicant was born on [Date 1] in [Area 1] as claimed.[7]  

   [4]    ibid

   [5]    [Ms A] ‘Document for Travel’ [No].

   [6]    [Ms B] Class XB Subclass 202 Global Special Humanitarian visa submitted 8 September 2008. Applicants Protection Visa Decision 30 January 2020 @ p.4

   [7]    [Application] for an Offshore Humanitarian Visa by [Ms A] dated 20 May 2005. Applicants Protection Visa Decision 30 January 2020 @ p.4

3. In his application the applicant claims that he was born in a refugee camp in Kenya. The applicant provided to the Tribunal a statutory deceleration for [Name 1] dated October 2019 (‘the [Name 1] declaration’) which claimed that the applicant was born in [a] Refugee camp in Kenya. In addition, the applicant provided unsigned letters dated 30 October 2019 and 17 October 2019 from his sister and mother respectively which stated that his family fled Sudan when the applicant’s mother was pregnant and as a result, he was born in [a] Refugee camp in Kenya. The Tribunal notes that the [Name 1] declaration and the letters dated 30 October 2019 and 17 October 2019 are contrary to the signed Humanitarian visa applications by his mother and sister and his mother’s letter to the department dated 1 April 2017 that state the applicant was born in Sudan. As such, based on the signed Humanitarian visa applications by his sister and his mother, [Ms A]’s travel document/entry permit for Australia and the applicant’s submissions dated 28 May 2020 the Tribunal does not accept that the applicant was born in Kenya, but finds that he was born on [Date 1] in [Area 1]. As such, the Tribunal finds that the applicant’s identity is [applicant’s name] and that he was born on [Date 1] in [Area 1], Sudan.

4. Finally, the Humanitarian visa applications by the applicant’s mother and sister both state that the applicant is an ethnic Dinka and a Christian.[8]  The Tribunal notes the country information which states that the Dinka’s are the largest ethnic group in South Sudan.[9]

   [8]    [File number deleted] ([applicant’s name] [Ms B] Class XB Subclass 202 Global Special Humanitarian visa submitted 8 September 2008. Applicants Protection Visa Decision 30 January 2020 @ p.4  

   [9]    DFAT Report @ p.10.

5. Therefore, based on the applicant’s evidence and the Humanitarian visa applications of his mother and sister, the Tribunal finds that the applicant is ethic Dinka and a Christian.

Applicant’s Nationality

1. In his application for a protection visa the applicant claims that he is stateless. The U.S. State Department reports that:[10]

   [10]  U.S State Department 2018 Country Reports on Human Rights Practices: South Sudan

   ‘Citizenship is derived through the right of blood (jus sanguinis) if a person has a South Sudanese parent, grandparent, or great-grandparent on either the mother’s or the father’s side, or if a person is a member of one of the country’s indigenous ethnic communities. Individuals also may derive citizenship through naturalization. Birth in the country is not sufficient to claim citizenship.'

2. The Tribunal has found that the applicant was born in [Area 1], Sudan. Prior to the applicant travelling to Australia, Sudan and South Sudan were one country. South Sudan was established in 2011 following protracted conflicts between the northern and southern regions of Sudan which itself had gained independence from the United Kingdom and Egypt in 1956.[11] The area in which the applicant was born, [Area 1] Displaced [Camp], is now part of the Republic of South Sudan after it declared independence from Sudan on 9 July 2011.[12]

   [11] DFAT Country Information Report South Sudan 5 October 2016 (DFAT Report) @ p.4

   [12] DFAT Report @ p.4; Delegates decision dated 30 January 2020

3. The Citizenship Rights in Africa website states that ‘[C]itizenship in South Sudan is governed by the Transitional Constitution of 2011, the Nationality Act 2011 and the Nationality Regulations 2011, all adopted following the country’s secession from Sudan.’[13] Nationality is automatically granted to a wide range of people born before or after the secession of South Sudan on the basis that any parent, grandparent or great-grandparent was born in South Sudan, or that the person is a member of an “indigenous ethnic community” of South Sudan. In addition, a person is considered South Sudanese by birth if, on the date of secession of South Sudan, he or she, or his or her parents or grandparents had been domiciled in South Sudan since the date of Sudan’s independence in 1956.[14]

   [13] Citizenship Rights in Arica, UHNCR Study of Statelessness in South Sudan 2017 published 29 May 2018

   [14] ibid

4. Article 8 of the South Sudan Nationality Act 2011[15] states that:

   [15]   citizenshiprightsafrica.org/south-sudan-nationality-act-2011/ South Sudan Nationality Act, 2011: Citizenship Rights in Africa Initiative

   (1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements—

   (a)     any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or

   (b)     such person belongs to one of the indigenous ethnic communities of South Sudan.

   (2) A person shall be considered a South Sudanese National by birth, if at the time of the coming into force of this Act—

   (a)     he or she has been domiciled in South Sudan since 1.1.1956; or

   (b)     if any of his or her parents or grandparents have been domiciled in South Sudan since 1.1.1956.

   (3) A person born after the commencement of this Act, shall be a South Sudanese National by birth if his or her father or mother was a South Sudanese National by birth or naturalization at the time of the birth of such a person.

   (4) A person who is or was first found in South Sudan as a deserted infant of unknown Parents shall, until the contrary is proved, be deemed to be a South Sudanese National by birth.

5. It reported[16] that in the wake of South Sudan’s independence, Sudan’s decision to revoke any person’s nationality who may have qualified for South Sudanese citizenship left many stateless. South Sudan is not party to either the 1954 Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness. As a result, ambiguities in South Sudan’s 2011 Nationality Act (including the use of terms such as “indigenous”) increased the risk of statelessness in South Sudan.[17]

   [16] Citizen Rights in Africa Initiative, UHNCR Study of Statelessness in South Sudan 2017 published 29 May 2018.

   [17] Citizen Rights in Africa Initiative, UHNCR Study of Statelessness in South Sudan 2017 published 29 May 2018.

6. In addition, as a result of a lack of capacity in the South Sudan’s Directorate of Nationality, Passports and Immigration (DNPI) misinterpretations of the Nationality Act and its Regulations by DNPI officers has occurred undermining access to nationality documentation. In particular, some DNPI Officers interpret the alternative conditions set in Section 8(1)(a) and 8(1)(b) as cumulative conditions to acquire nationality by birth and thus, requiring both conditions to be fulfilled despite the clear use of the word ‘or’ in the Nationality Act.[18]

   [18] ibid

7. To obtain a nationality certificate, an applicant is required to provide a birth certificate or alternatively an age assessment, two passport size photos, a photocopy of a witness’s identity document, and a signed application form.[19]  Although not clearly stated in the legislation, applicants in practice are required to provide a residence certificate and specification of blood group. The applicants are additionally required to pay for the issuance of the nationality certificate and undergo a formal interview by the DNPI before the nationality certificate can be issued.[20]

   [19] ibid

   [20] ibid

8. In this case the Tribunal has accepted that applicant’s submission that he was born in [Area 1], an area that is now located in South Sudan. The applicant’s mother, [Ms B], stated in her application for a Humanitarian visa[21] that she was born in [Village 1] together with her parents and siblings. In addition, she stated that the applicant’s father, [Mr C], and his family were born in [Village 2]. The Tribunal notes that both [Village 1] and [Village 2] are villages located within the Jonglei State, South Sudan.[22]      

   [21] [File number deleted], ([Humanitarian] Visa application by [Ms B] dated 11/01/ 2008). Humanitarian Visa application by [Ms A] dated 20 May 2003.

   [22] Delegates decision dated 30 January 2020 @ p.3; [source deleted]

9. In addition, the applicant’s father applied for an Australian Tourist visa [in] June 2019.[23] For the purposes of making his application for the tourist visa the applicant’s father provided a copy of his South Sudanese passport and South Sudanese identity card which states his place of birth as [Village 3]. The Tribunal notes that [Village 3] is also located within the Jonglei State, South Sudan.[24]  In circumstances where his father was able to obtain such documentation, there was no evidence to suggest that the applicant would not be able to obtain a South Sudanese passport and identity card.   

   [23] [File number deleted] ([Mr C] visa application and identity documents).

   [24] Delegates decision dated 30 January 2020.

10. Therefore, based on the applicant’s evidence and the documentation provided by the department, the Tribunal accepts and finds that the applicant’s parents and both his maternal and paternal grandparents were born in South Sudan.

11. Accordingly, by operation of article 8 of the Nationality Law 2011, the Tribunal finds that the applicant is a national of South Sudan and not stateless as claimed in his application. Accordingly, the applicant’s protection claims will be assessed against South Sudan as the country of reference and ‘receiving country’ respectively. 

12. The Tribunal is also satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country and, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s. 36(3).

Applicant’s Migration History

1. The applicant’s migration history is detailed in the delegates decision[25] as follows:

   [25] Delegates decision dated 30 January 2020 @ p.2

Date	Event details
16 August 2004	Granted a subclass XB-202Global Special Humanitarian visa
[December] 2004	Departed Kenya via Nairobi Airport
[December] 2004	Arrived in Australia on Humanitarian Visa
28 November 2016	Humanitarian Visa cancelled under s501 of the Act.
7 December 2016	Lodged an appeal for the cancellation of his Humanitarian visa to be revoked.
[April] 2018	Released from criminal custody and detained under section 189(1) of the Act.
7 August 2018	Department’s decision not to revoke the cancellation of his Humanitarian visa.
13 August 2018	Lodged an application for review to the AAT against the Department’s decision to cancel his Humanitarian visa.
31 October 2018	AAT affirmed the Department’s decision to  cancel the applicant’s Humanitarian visa.
[November] 2018	Application for judicial review at Federal Court in respect of the cancellation of this Humanitarian visa
[July] 2019	The Federal Court ruled in favour of the Minister in respect of the review of the decision to cancel his Humanitarian visa.
[August] 2019	Application for judicial review of the cancellation of his Humanitarian visa with the Full Federal Court.
3 November 2019	Application for protection visa

Applicant’s claims for protection

1. The claims detailed in his application for a protection visa were:[26]

   [26] Applicants Application for a Protection Visa dated 3 November 2019.

   Provide reasons why this applicant left that country or those countries:

   The applicant has never been to Sudan. He was born in a Refugee camp in Kenya, their family fled as their father was fighting with the Militia against the Government.

   Did this applicant experience harm in that country or those countries?

   ‘No’

   Did the applicant move or try to move to another part of that country or those countries to seek safety?

   No. The applicant’s mother fled Sudan whilst the applicant was still in her stomach, he was born in the refugee camp.

   Explain what the applicant thinks will happen to them if they return to that country or those countries.

   Kidnappings, Torture, Death. 

   Does the applicant think they will, be harmed or mistreated if they return to that country or countries?

   ‘Yes’

   Kidnappings, Torture, Death, Due his fathers fighting against the government, the applicant being the eldest /only son will be killed

   Does the applicant think the authorities of that country or those countries can and will protect this applicant of they go back?

   No.

   The authorities will be the ones killing him.

   Does this applicant think they will be able to relocate within that country or those countries to an area where they would not be harmed?

   ‘No’

   Nowhere in South Sudan is safe, please see attached documents.

1. The applicant’s claims were summarised in the delegates decision[27] as follows:

   [27] Protection Visa Decision record dated 30 January 2020 @

   (a)He is a member of the Dinka tribe and a practicing Christian.

   (b)His father became a prominent figure in the militia fighting against the government in Sudan.

   (c)He fled Sudan with his mother and siblings, because his father’s position in the militia put his family’s lives at risk.

   (d)His mother had a brief telephone conversation with his father in 2015 and his father said his whole family will be tracked down and slaughtered if they return to Sudan due to his father’s involvement in the fighting.

   (e)He is the only male child of his father and therefore inherits the danger and threat of immediate death if he is discovered in South Sudan.

   (f)It is not known whether his father is alive or deceased, although to the best of his knowledge his father is still a rebel fighter.

   (g)His life will be in danger in South Sudan because Muslim clerics have declared war on Christians.

   (h)There is racial, tribal and religious conflict in South Sudan resulting in widespread torture, rape, sexual assaults, beatings and murders.

   (i)Members of the Dinka tribe are in immediate danger in South Sudan from rebel fighters from the north.

   (j)He speaks fluent Dinka, but he has an accent which will draw attention to him as being an outsider and put him at further risk of persecution.

   (k)He has developed mental health issues because of his upbringing in refugee camps and the things he witnessed. The treatment he receives for his mental health problems would not be available in [South] Sudan.

2. The delegate’s decision refers to the fact that the PV interview claimed that he feared returning to South Sudan as an ethnic Dinka. During the interview the applicant asserted to the department that the government in South Sudan are killing Dinkas, and the Dinkas are also killing each other.[28]

   [28] Op Cit @ p.8

3. In addition, the applicant raised a claim in relation to his health. He stated that he has Hepatitis and feared that he would not be able to receive treatment for this illness in South Sudan. [29]

   [29] ibid

4. In addition, the applicant claimed to the Tribunal that as a result of his experiences in the refugee camps prior to arriving in Australia the applicant has sought and received Torture and Trauma counselling [while] in detention. He claims that he would suffer serious harm as a result of not being able to access mental health services in the event he is returned to South Sudan.

Applicant’s documentation

1. The applicant provided the following evidence to the department to support his claims:

   (a)Corrigendum to the submissions dated 19 August 2020.

   (b)Submission by applicant’s representative dated 15 June 2020

   (c)Submissions by the applicant’s representative dated 28 May 2020 (the submissions).

   (d)A statement made by the applicant dated 27 May 2020.

   (e)A statement of claims made by the applicant accompanying his protection visa application submitted to the department on 3 November 2019.

   (f)A letter dated 17 October 2019 where the applicant seeks to correct details previously provided relating to the place of his birth.

   (g)A copy of the ‘Document for travel to Australia’ used by the applicant when he travelled to Australia as a dependent on his sister’s Humanitarian visa.

   (h)A letter dated 17 October 2019 from the applicant’s mother.  

   (i)A statutory declaration by [Name 1], dated 8 October 2019.

   (j)A letter dated 30 October 2019 from [Ms A].

   (k)[Torture] and Trauma Assessment Report, September 2018 to October 2019 by [Ms D].

   (l)Applicants letter dated 30 November 2019.  

   (m)Certificates of Attendance and Participation of three workshops on parenting [on dates].

   (n)Certificate of Participation in a weekly Men’s Group between June and July 2019

   (o)UNHCR Position on Returns to South Sudan – Update II, dated April 2019.

   (p)A statement made by the applicant addressed to the National Character Consideration Centre within the department dated 14 January 2019.

   (q)A copy of the Decision and Reasons for Decision made by the General Division of the AAT on 31 October 2018.

   (r)[A qualification], awarded to the applicant [in] December 2017 by the [School 1].

   (s)[A qualification] awarded to the applicant [in] November 2017 by the [School 1].

   (t)Certificate of Program Completion in a Talking Change program held at [a] Prison in July 2017.

   (u)Applicant’s ‘memoir.’

   (v)An email from the applicant stating that he has hepatitis B and liver issues.

   (w)A letter dated 11 April 2017 from [Organisation 1].

   (x)Letter dated 1 April 2017 for [Ms B].

   (y)A medical certificate dated 5 January 2016 by [a clinic].

   (z)A Certificate of Completion of a Withdrawal Unit program conducted by drug health services [in] February 2016.

   (aa)A hospital summary dated 2 November 2015 by [a clinic].

   (bb)Copy [Mr C]’s Republic of South Sudan passport

COUNTRY INFORMATION

1. The Tribunal in accordance with the Ministerial direction No 56 made under s.499 of the Act the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the DFAT report on South Sudan dated 5 October 2016 (‘the DFAT Report’).[30]

   [30] DFAT Country Information Report South Sudan dated 5 October 2016

THE APPLICANTS CLAIMS

Credibility

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant may answer questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[31]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[32]

   [31] s.5AAA Migration Act 1958.

   [32]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[33] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [33]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[34] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [34]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

Applicant’s Refugee Claim

Relevant Grounds

1. The applicant submits that he falls within the scope of s.5J(1)(a) of the Act by reason of his race as an ethnic Dinka and his religion by as a Christian. Finally, the applicant claims that he is a member of a particular social group as a person suffering from physical and mental health issues and as result his father becoming a prominent figure in the militia fighting against the government in Sudan.

2. The question of a person’s race is generally considered a broad concept and not particularly contentious. In Calado v MIMA[35] the Court, noted that that ‘there can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins.’ In this case, based on the applicant’s evidence and the supporting documentation, the Tribunal has accepted the applicant’s claim and found that he is an ethnic Dinka. As such the Tribunal finds that applicant’s claim falls within the scope of s.5J(1)(a) of the Act by reason of his race as an ethnic Dinka.

   [35] Calado v MIMA (1998) 81 FCR 450 @ p.455.

3. As to the applicant’s claim of his religion, as a Christian, as a refugee ground, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’ as a refugee ground. It states:[36]

   [36] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]-[73]  

   ‘72.   Persecution for ‘reasons of religion’ may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   73. Mere membership of a particular religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

4. The scope of ‘religion’ within the context of the Convention was considered by the Federal Court in MIMA v Darboy[37]  in light of the High Court’s judgment in Church of the New Faith as follows:

   [37] MIMA v Darboy (1998) 52 ALD 44 at 50, quoting Mason CJ and Brennan J in Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120 @ p.135.

   ‘The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.’

5. In this case, the based on the applicant’s evidence and the supporting documentation, the Tribunal has found that the applicant is a Christian as claimed. As such the Tribunal finds that applicant’s claim falls within the scope of s.5J(1)(a) of the Act by reason of his religion as a Christian as claimed.

6. Finally, the applicant has claimed that he is a member of a particular social group by reason of his father’s involvement in the militia and his mental and physical health issues. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s.5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.[38] While the Tribunal has reservations  of his father’s involvement in the militia and his own mental and physical health issues unite the applicant with a group, and sets him and the group apart from society at large, it is prepared for the purposes of this decision to accept that he is a member of a particular social group pursuant to s.5J(1)(a) of the Act.

   [38]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

Applicant’s well-founded fear.

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.

2. The criterion in s.5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. In this case the applicant claims that there is a real chance he will be seriously harmed if he returns to South Sudan by reason of his race, religion and membership of a particular social group. For the reasons expressed below the Tribunal has accepts that he holds a subjective fear of returning to South Sudan. 

Applicant’s Background.

1. The applicant was born on [Date 1] in [Area 1], in what is now South Sudan.[39] After living in several internally displaced persons camps in Sudan the applicant and his family then lived in [a] Refugee camp in Kenya. At the age of [age] years old he migrated to Australia with his eldest sister, [and] her five children. On his arrival in Australia he settled in [State 2] with his sister and her children. He attended primary school and high school in [State 2] but ceased school in year [number].

   [39] Applicants submission to the Tribunal dated 28 May 2020

2. The applicant’s mother, [Ms B], and his other sisters migrated to Australia approximately five years after the applicant. The applicant initially joined them in [State 1] but returned intermittently to [State 2] and has resided briefly in other states.  Prior to being imprisoned in late 2016 the applicant was living with his younger sister and her [children].

3. The applicant has two children, [who] live with their mother, Ms [E], from whom he is now separated. The applicant claims that, despite him being in detention, his children continue to have contact with his sister’s family and that he is supported by Ms [E] to remain in Australia. 

4. The applicant has an extensive criminal record encompassing 21 court appearances in four states since 2009. Initial charges against him as a child were mainly public nuisance and property offences for which he received a reprimand, fine and without conviction being recorded. The applicant’s convictions as an adult between 2010 and 2016 are for increasingly serious offences. Many of the offences involve violence and were perpetrated against innocent citizens, police, emergency workers and a prison officer. The applicant has been convicted of several [offences]. The applicant has breached bail conditions, probation orders and failed to appear in accordance with undertaking made to the court. He has served custodial sentences on numerous occasions.

5. [In] December 2016 the applicant was sentenced to one year and three months in prison having been found guilty of [offences]. The applicant was released from prison [in] April 2018 but was immediately taken to immigration detention. The applicant has remained in immigration detention for a period of over two years (almost double his time in prison).

6. During the course of the hearing the applicant did not attempt to divert the Tribunal for his criminal record. He explained that he had committed the crimes for which he sentenced but expressed he is deep regret for his behavior and noted that he had served his full sentence in respect of the crimes. The Tribunal notes the issues concerning his behavior were determined by the Administrative Appeals Tribunal review decision dated 31 October 2018 of the applicants cancelation of his Global Special Humanitarian Visa.[40] In this case, the Tribunal’s obligation is to review the department’s decision to refuse the applicant’s protection visa application in accordance with Australia’s protection obligations pursuant to s.36(2)(a) and (aa) of the Act.

   [40] Administrative Appeals Tribunal File Number 2018/4512 dated 31 October 2018

Applicant’s Claim as a Refugee

Applicant’s father fighting with the Militia against the Government.

1. In his application the applicant states that his family fled as their father, [Mr C], was fighting with the Militia against the Government. The applicant claims that his father was a prominent figure in the militia and his position as a fighter against the government put the lives of his whole family in danger. As a result, they fled the country.

2. The applicant’s evidence to the Tribunal about his father’s involvement in the Militia was vague and lacking in any detail. Nevertheless, the Tribunal notes that it was part of his claim to the department that in or about 2015 his mother had a brief telephone conversation with his father in which he stated that, as a result of his fighting, the whole family would be tracked down and slaughtered if they returned to South Sudan.[41]  The applicant also claimed that in or about 2015 he had a telephone conversation with his father, in which he claimed his father stated that he was in the army and that the whole family would be in danger if they returned to South Sudan.[42] The applicant was not able to inform the department if his father was alive and, if so, if he was still a rebel fighter.[43] The applicant was not able to inform the Tribunal as to his father’s location.  Save to say that his father fought against the government, the applicant was not able to provide any evidence of his father’s military history.  

   [41] Applicants Protection Visa Decision Record dated 30 January 2020 @ p.9

   [42] ibid

   [43] ibid

3. The Tribunal notes the country information which states that the first civil war (1955-72) and second civil war (1983-2005) were rooted in the North’s economic, political and social domination of the South and led to the deaths of more than 1.5 million people.[44]  The Sudan People Liberation Movement (SPLM) had the strongest number of militia groups who struggled to free South Sudan and had strong links to Dinka Tribes.[45]

   [44] DFAT Report @ p.4

   [45] ibid

4. The delegate’s decision refers to department records which show that the applicant’s father submitted an application for an Australian tourist visa on 5 June 2019.[46] The application was linked to members of the applicant’s family and included a copy of the applicant’s father’s passport[47] and Nationality Certificate,[48] a copy of which were provided to the Tribunal. They indicated that he was born on [date] in [Village 3], and that he is a South Sudan. The Tribunal notes that the applicant’s father is also an ethnic Dinka and Christian.

   [46] Applicants Protection Visa Decision Record dated 30 January 2020 @ p.9

   [47] Republic of South Sudan passport of [Mr C] issued [2018]

   [48] Republic of South Sudan Nationality Certificate of [Mr C] disused [date] March 2012.

1. The Tribunal notes that the delegate’s decision refers to the fact that it was put to the applicant during his PV interview that the department had information which indicated that members of the applicant’s family had been sending money to his father in South Sudan to which the applicant claimed that he had no knowledge.[49] 

   [49] Applicants Protection Visa Decision Record dated 30 January 2020 @ p.9

2. In this regard, the applicant’s evidence in relation to his father’s background was consistent with his father being a member of the SPLM or some other militia who fought again the government of Sudan prior to South Sudan gaining its independence on 9 July 2011.  

3. Based on the evidence provided by the Department the Tribunal finds that the applicant’s father [Mr C] was a rebel militia fighting against the government of Sudan during the second civil war. In addition, based the copy of his passport and National Certificate provided, the Tribunal finds that the applicant’s father is a South Sudanese and retired.[50] 

   [50] Op Cit @ p.10

4. In circumstances where the Tribunal has found that the applicant’s father was aligned with the militia’s fighting the government of Sudan for an independent South Sudanese state and the fact that he has been issued with a South Sudanese passport and National Certificate, its difficult to see how the applicant’s father would have an adverse profile with the authorities of South Sudan as claimed. In the absence of any other evidence to support his claim, having fought to support an independent South Sudanese government the applicant’s father would not have an adverse profile with the government of South Sudan. As such, the Tribunal finds that the applicant would not have an adverse profile with the South Sudan authorities as a result of his father fighting with the Militia against the Government of Sudan. Accordingly, the Tribunal finds that there is no real chance the applicant would be seriously harmed by reason of his father fighting with the militia as claimed.

Applicant’s Mental Health

1. The applicant claims that, as a result of his experience in the refugee camps in Sudan and Kenya, he has developed mental health issues. The applicant claims that from the time he arrived in Australia he developed mental health issues including anxiety and flashbacks of his time in the refugee camps. The applicant states that as a result of his mental health issues he suffered from flashbacks and had trouble concentrating at school and turned to alcohol and drugs to mask the pain.[51] The applicant claims that he was diagnosed with the mental health issues  when he was in prison in 2016. He claimed that he was provided medication [while] he was in prison but ceased taking it upon him being placed in detention. He claims that he has been seeing a counsellor once a month.   

   [51] Applicants letter ‘Response to Letter to myself dated 29 November 2019’ dated 30 November 2019

2. By a letter dated 11 April 2017 from [Ms F] of [Organisation 1],[52] she reports that [Organisation 1] is a nonprofit organization that provides services and support to adults and children who have experienced torture and other related traumatic events in their country of origin before fleeing to Australia. [Ms F] advises that [Organisation 1] screened the [applicant’s] family in September 2003, in its early intervention program, and that its records indicate that the applicant was referred for assessment and counselling from December 2005 to July 2007.  The letter makes no mention of the applicant’s mental condition or of the services provided to the applicant by the organization. As such, while the Tribunal accepts that the applicant received counselling services from [Organisation 1] as reported in the letter, it places little weight on the letter in relation to the applicant’s mental health.

   [52] [Letter] for [Organisation 1] dated 11 April 2017)

3. The applicant provided [a] Torture and Trauma Assessment Report by [Ms D][53] for the interview period between September 2018 to October 2019. [Ms D] reported in relation to the applicant’s cognitive function that his thoughts were logical and coherent but that his cognitive functioning had been negatively impacted by prolonged detention. She states that he reported having frequent flashbacks, intrusive memories and impairment of memory and concentration. She noted that it was clear that the uncertainty and the length of his detention had impacted on the applicant’s mental health. He advises that as an emotional and physical safety precure for recovery, it’s her opinion that the applicant would benefit from being released into a supportive and safe environment within the community to best help him recover for his mental health issues.

   [53]  [Torture] and Trauma Assessment Report by [Ms D])

4. The Tribunal notes the observations made by the Administrative Appeals Tribunal (AAT) (differently constituted) in its review decision dated 31 October 2019 (‘the AAT Decision’) regarding the Department’s decision to cancel the applicant’s Humanitarian visa. In the AAT decision it notes that [Ms D] states in her letter that she is ‘a member of the Australian Association of Social Workers (AASW) and an AASW approved social workers…[having worked] [for] the past 10 years with extensive clinical experience..’ As such, it appears that [Ms D] does not hold any formal qualifications in psychology or psychiatry and as such the Tribunal places little weight on her opinion as to the mental health of the applicant.

5. The applicant did not provide any further reports to the Tribunal in relation to his mental health condition. However, the AAT decision refers to a psychological report prepared by a forensic psychologist Mr [G], ahead of the applicant’s sentencing in 2011.  While the Tribunal recognizes that the report is now over nine-year-old, insofar as the report related to any trauma experienced prior to his arrival in Australia it states:[54]

   [54] AAT decision (General Division) dated 31 October 2018 file No 2018/4512 @ p.29

   ‘[The applicant]’s mental state examination was unremarkable. He reported no depression and only mild anxiety in relation to his approaching plea. He said he was sleeping well and that his appetite was ‘okay.’’

   I observed no evidence of his frank mental illness such as psychotic ideation, hallucinations or delusions in [the applicant]’s speech or demeanor. [The applicant] also said that he has never suffered from problems of this type at any time in the past. He was oriented to time place and person and his immediate recall, short term memory and long-term memory appeared intact in clinical interview. He reported no psychomotor agitation or retardation and there was no evidence of cognitive impairment in clinical interview or history taking. I would estimate [the applicant]’s IQ to be in the normal range.

   [The applicant] impressed me as an immature and reckless young man who exercises generally poor judgment which further deteriorates when he is affected by drugs, alcohol or negative peers. He presents as lacking insight into his general psychological functioning, failing to learn for previous mistakes and failing to plan and execute behavior that is positive and self-sustaining.’ 

6. Mr [G] refers to the applicant’s abuse of alcohol and drugs and notes that from the age of [age] the applicant was a regular user of both substances until remanded in custody. As part of his diagnosis of the applicant Mr [G] stated:[55]

   [55] OpCit @ p.30

   ‘Based on [the applicant]’s clinical interview, personal and forensic history, I am of the opinion that [the applicant] satisfies the DSM-IV-TR diagnostic criteria for Substance [Dependence]- in Early remission – in a Controlled Environment.

   [The applicant] impressed me as a young, immature, reckless and impulsive young man from a Chaotic family of origin emanating from war torn Sudan. In the absence of a guiding father figure in his life he presents as being easily led by older or more assertive peers. To now these peers appear to have been antisocial substance abusing and violent.

   [The applicant]’s personality is still in its formative stages and he would benefit by ongoing contact with Centre for Multicultural Youth. He might also benefit for a referral to [an] agency that offers mentoring and support to young people form disrupted and disturbed backgrounds.’

7. While the Tribunal is mindful that Mr [G]’s assessment of the applicant was made in 2011, no other specialist evidence was presented to the Tribunal in relation to his mental health. The Tribunal accepts that the applicant’s mental health may have suffered while he was in prison and subsequently detention. It accepts that he suffered a degree of anxiety when in prison for which he took [medication]. However, it notes that he ceased taking the medication once released for prison in 2017. 

8. As such, having considered the applicant’s evidence and the available reports, the Tribunal is not satisfied that the applicant suffered any mental health condition that would constitute serious harm if he was returned to South Sudan. As such, it finds that there is no real chance the applicant will suffer serious harm if he is returned to South Sudan by reason of his mental health as claimed.

Applicant’s Physical Health

1. The applicant claims that he is a carrier of hepatitis B and that he was infected as a child in Sudan. Hepatitis B can lead to cirrhosis (scaring of the liver), liver cancer or liver failure if it is not managed.[56] The applicant claims that for people with Hepatitis B who consume alcohol the risk is increased in developing cirrhosis of the liver.[57]    The applicant claims that if he was removed  from Australia he could have difficulty in accessing treatment as severely limited access to treatment is a major  factor in hepatitis B management in Sub Saharan Africa.[58]

   [56] Hepatitis Australia, About Hep B,

   [57] Applicants submission dated 28 May 2020 @ p.26;

   [58] ibid

2. A report from [a] Clinic dated 6 July 2015 indicated that the applicant tested positive for hepatitis B core antibody (Hep B CoreAB) and negative for hepatitis B infection (HbsAg).[59]

   [59] [A medical clinic] dated 6 July 2015

3. Hep B CoreAB is produced by the immune system after infection by the hepatitis B virus, and it can persist for life. It is a sign that a person has an active (acute) hepatitis B infection or they have had hepatitis B in the past. It is an immune system response to a protein in the core of the virus, and it is only present if a person has been infected, rather than immunized.[60]

   [60] Very Well Health, HBcAb or the Hepatitis B Core Antibody Test >

   If a person’s blood is positive for HBsAg, it means they are infectious for the virus and can pass it to other people through their blood or body fluids.[61] The medical report notes that the applicant is a carrier of hepatitis B and that HBsAg negative carriers are usually of low infectivity.[62]  As such, based on the medical report, the Tribunal accepts that the applicant is a carrier of hepatitis B but is of low infectivity.

   [61] Very Well Health, Hepatitis B Surface Antigen Test (HBsAg) [A medical clinic] dated 6 July 2015

4. The Tribunal notes the following medical notes:

   [date]/01/2016 (Thu) with [a named doctorr]…
   general consult
   was in hospital [has] the habit of binge drinking……..
   HepB positive
   Advised to stop drinking as damages liver.   

   [date]/01/2016 (Tue) with [another named doctor]]….
   Stopped drinking and started again
   Unable to work today as has been drinking again
   Last drink was yesterday
   Had a binge drinking session….’

5. In addition, the Tribunal notes that the AAT decision[63] referred to a letter by [a] Hepatology Clinical Nurse Consultant dated 23 December 2017 that confirmed that the applicant was Assessed in prison to be suffering for ‘e-negative chronic hepatitis.’ The decision notes that he was found to have low levels of HBV DNA and normal liver function tests, putting him in the immune control phase of the disease. The applicant’s evidence to the Tribunal was that he does not take any medication for his Hepatitis which requires six monthly blood tests to ensure that the disease has not progressed.[64]

   [63] AAT decision (General Division) dated 31 October 2018 file No 2018/4512 @ p.31

   [64] Op Cit @ p.32

6. The country information reports that South Sudan[65] population has extremely poor access to health care and had stated that the health situation has deteriorated further as a result of the worsening conflict and economic situation. It’s reported that n South Sudan [66] has all forms of Hepatitis. Particularly, outbreaks of Hepatitis E Virus (HEV) have been reported in Lakes, Unity and Upper Nile states, especially among refugees and internally displaced populations. Nevertheless, despite the lack of facilities, a campaign to help eliminate viral hepatitis by 2030 and to help raise awareness of hepatitis in South Sudan has been launched by commemorating World Hepatitis Day under the theme “Eliminate Hepatitis” at the University of Juba, college of medicine.[67]

   [65] DFAT Report @ p.6

   [66] World Health organisation, South Sudan marks World Hepatitis Day 2017 dated 28 July 2017 ibid

7. While the Tribunal accepts that the medical facilities in South Sudan are far  from ideal and that he may face difficulty in obtaining his six monthly blood  test for the purposes of monitoring the disease, there is no evidence that the applicant would be systematically or discriminatorily denied access to medical services in South Sudan. As a result, the Tribunal finds that there is no real chance he would suffer serious harm by reason of him being a carrier of hepatitis B if he returned to South Sudan as claimed.

Applicant as a Christian

1. The Tribunal has accepted the applicant’s evidence and found that he is Christian.

2. The country information[68] reports that Christianity is the dominant religion in South Sudan that there are a number of different Christian denominations in the country including the African Inland Church, Episcopal, Presbyterian, Presbyterian Evangelical, Roman Catholic, Sudan Pentecostal and Sudan Interior.[69]  It’s reported that the prominence of the Christian Churches in particular areas, together with societal discrimination as a result of a person’s ethnicity, has led to some individuals being unwelcome at some Churches associated with particular ethnic groups. However, DFAT advises this is more likely as a result of a person’s ethnic background rather than their religious affiliation.[70]  While it’s acknowledged that there have been limited cases of Muslims experiencing official and social discrimination, DFAT has assessed that individuals are unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone.

   [68] DFAT Report @ p.5 & 11

   [69] Op Cit @ p.5

   [70] Op Cit @ p.11

3. The applicant did not provide any evidence of the basis upon which he claims that he would be persecuted based on his religion. Therefore, based on the country information the Tribunal finds that there is not real chance that the applicant would be seriously harmed if he returned to South Sudan based on being Christian as claimed.

Applicant as an ethnic Dinka.

1. The Tribunal has accepted the applicant’s evidence and found that he is an ethnic Dinka.

2. The country information[71] reports that the Dinka are a large group of several closely related sub-ethnic groups. Dinka are a branch of Nilotic people, who are indigenous to the Nile Valley and speak Nilotic languages. The Dinkas are the largest ethnic group in South Sudan. They are predominantly pastoralists located in the central and northern areas of South Sudan. There are several sub-ethnic groups, including the Abiliang, Agar, Aliab, Atwot, Bor, Ciec, Gok, Hol, Malual, Nyarweng, Padang, Rek, Ruweng, Twic-JS and Twic-WS. Dinka males are often distinguishable by facial scarification consisting of three parallel lines across the forehead, although different Dinka sub-ethnic groups use different patterns.[72]

   [71] DFAT Report p.10

   [72] ibid

3. It’s reported[73] that the Dinkas have been targeted by the Sudan People’s Liberation Army-In-Opposition (SPLA-IO) based on their ethnicity, particularly in conflict-affected areas. In January 2014, witnesses in the SPLA-IO-controlled town of Bor in Jonglei State reported large-scale targeting of Dinka civilians, including attacks against the local hospital where 14 bodies were found including two pregnant women. During the same period, the SPLA-IO killed at least 13 civilians hiding in a church in Bor, including several women.[74] Witnesses reported that the SPLA-IO also raped women seeking refuge in the church. It’s reported that incidents of violence directed at Dinkas continue, mainly in conflict-affected areas, although the Sudan People’s Liberation Movement-In-Opposition’s capacity has been weakened following the recent escalation of conflict in Juba in July 2016.

   [73] ibid

   [74] ibid

4. The Tribunal notes that DFAT[75] assesses that Dinkas living in conflict-affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict.

   [75] ibid

5. The Tribunal has accepted and found that the applicant’s mother and father originated from the Jonglei State in what is now South Sudan. Therefore, notwithstanding the fact that he left as an infant it would be reasonable to expect that, if he was returned to South Sudan, he would return to Jonglei State.  The applicant’s father remains living in Jonglei State, South Sudan. Even accepting the applicant’s evidence that he has not had any contact with his father and does not know where he lives, it would be reasonable to expect that he would return to the area of the country where he would have some family or other support. The Tribunal notes that the applicant’s father revisited Australia in 2019 as a tourist to visit his children. As such, it appears that his father has some contact with the applicant’s family, even if it is not directly with the applicant himself. Accordingly, it would be reasonable to expect that the applicant would return to the area of the country where at least he had some family connection. Therefore, based on the available country information which states that Dinka tribe members in conflict-affected areas face a high risk of societal discrimination and violence, the Tribunal finds that there is a real chance the applicant will be seriously harmed if he returns to Jonglei State, South Sudan by reason of being an ethnic Dinka.

6. The country information notes that Juba, the Capital of South Sudan, remains under the control of the government. It notes that Dinka’s face low risk of being targeted based on their ethnicity in Juba as the Dinka dominated government currently has control of the capital.[76]

   [76] DFAT Report @ p.11

7. However, The Tribunal notes that the applicant has no apparent communal or apparent familial links to Juba or irs surrounding area. While the applicant speaks the Dinka language, given the period of time he has been in Australia, the Tribunal accepts the applicant’s evidece that he has a western accent. Accordingly, while he is an athnic Dinka his time in Australia would make him culturally and behaviorally different from the Dinka community in Juba and South Sudan more generally. The Tribunal notes that the US Department of State[77] has reported that despite large scale conflict having decreased, there have been significant levels of general violence in the region in which Juba is located being Central Equatoria and the Greater Upper Nile. Its also reported that there is ongoing abuse and unlawful detention by security forces throughout the country. The UN Commission on Human Rights in South Sudan alleged that there is a continuing practice of unlawful or arbitrary detention followed by extra judicial secret killings.[78] Finally, it’s reported that there is continued incidents of general violence in Juba. On 3 June 2020, South Sudanese forces killed five civilians in Juba over a land dispute. This was followed by peaceful demonstrations which lead to police shooting and killing another man with multiple injuries and arrests.[79]

   [77] US Department of State Country Reports on Human Rights (2019) @ p.21; OpCit @ p.2

   [79] Human Rights Watch, ‘South Sudan: Soldiers Kill Civilians in Land Dispute’ (2020); type="1">

8. While the Tribunal accepts that Australia protection obligations do not extend to those fleeing generalized violence internal turmoil or civil war[80] in this case the applicant claims that he speaks with a western accent and is not culturally assimilated as an ethnic Dinka. He claims that due to the majority of his live having been spent in Australia he will not be fully assimilated into the Dinka community. As such there is a risk, he will face societal discrimination and violence not only as a ethinc Dinka but as a person who is not culturally assimilated as a Dinka tribal member. The Tribunal accepts the applicant’s evidence and find that there is a greater risk of him experiencing societal discrimination and violence as a result of him not being culturally assimilated as an ethnic Dinka. As a result, the applicant is at great risk of being a harmed as a result of the general violence in Juba.

   [80] MIMA v Haji Ibrahim (2000) 24 CLR 1 @ [141 per Gummow J, Gleeson CJ, and Hayne J agreeing

9. Finally, it’s reported by the United Nations Human Rights office that ethnic clashes are likely to increase as political leaders instigate ethnic tensions between the Dinka Bor, Lou Nuer and Murle communities. It’s reported that that the increased tension and fighting between these communities appear to have been instigated by political and traditional leaders who have allegedly mobilized armed youths and exploited pre-existing communal tensions over access to natural resources.[81]  Some 800 people are said to have died since February 2020.[82]  The escalating violence against the Dinka people  is said to be occurring in Jonglei State and Central Equatoria which incorporates the capital Juba.[83]  

   [81] UN News UN rights chief urges South Sudan authorities to address inter-communal violence dated 20 March 2020, BBC, ‘South Sudan clashes’kill300 in ’Jogeli State (21 May 2020, VOA News, ‘South Sudan mission chief warms more inter-communal violence could unravel peace deal’(2020) >

   Therefore, based on the available country information in relation to the level of general violence together with the level of violence as a result of ethnic tensions between the Dinka Bor, Lou Nuer and Murle communities in and around Juba, the Tribunal accepts and finds that there is a real chance the applicant will be seriously harmed in Juba, South Sudan as a result of him being an ethnic Dinka.

10. Accordingly, based on the Tribunal findings above, the Tribunal finds that there is a real chance the applicant will be seriously harmed if he returns to South Sudan as a result of being an ethnic Dinka.

The East African Community (EAC)

1. The Tribunal is required to consider if the applicant is entitled to reside in any other country other than Australia. In this case, South Sudan is a member of the East African Community (EAC).[84] The EAC is a regional intergovernmental organisation of 6 Partner States of which South Sudan is a member together with Republics of Burundi, Kenya, Rwanda, the United Republic of Tanzania, and the Republic of Uganda. The EAC has its headquarters in Arusha, Tanzania.

   [84] The East African Community (EAC) website; >

   The EAC is guided by its Treaty which was signed on 30 November 1999 and entered into force on 7 July 2000 following its ratification by the original three Partner States - Kenya, Tanzania and Uganda. The Republic of Rwanda and the Republic of Burundi acceded to the EAC Treaty on 18 June 2007 and became full Members of the Community with effect from 1 July 2007. The Republic of South Sudan acceded to the Treaty on 15 April 2016 and become a full Member on 15 August 2016.[85]

2. Article 104 of the Treaty provides that Partner States will adopt measures to achieve 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. As a result, by virtue of article 151 of the treaty the Partner States concluded the Protocol for Establishment of the East African Community Common Market which was ratified by all the Partner States on 1st July 2010.[86]

3. Article 7(1) of the Protocol provides that Partner Sates will guarantee the ‘free movement of persons who are citizens of the other Partner States, within their territories’  while article 7(5) indicates that ‘the free movement of persons shall be subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health.’ Article 7(8) of the Protocol provides that the ‘movement of refugees within the community shall be governed by the relevant international conventions.’

4. Residency rights for Partner States citizens in other Partner State countries are not automatically conferred. A residence permit linked to work permission is required to be applied for and issued before a person can remain.[87] Nevertheless, it’s reported that Partner States restrict the movement of workers within their regions. For example, Tanzania demands excess of USD 500 for a permit fee. In addition, while Kenya imposes a minimum age of 35 years and a monthly salary in excess of USD 2000 for a permit making it almost impossible for the youth to be the beneficiaries of the freedom of free movement of workers in Kenya.

5. Finally, it’s noted that that the EAC regulations allow citizens of Partner States to enter, transit or exit the territory of another Partner State with a pass that allows them to stay up to six months.[88]

   [85] ibid

   [86] ibid

   [87] East African Community Common Market Protocol Simplifies’ East Africa Business Council 23 January 2014 CISEC96CF14112.

   [88] The East African Community Common Market (Free Movement of Persons) Regulations – Annex1, East African Common Market, 1 November 2009.

100.In SZRTC v MIBP [2014] FCAFC 43 the Court found that appellants’ right to enter any of the EAC countries and stay for up to six months constituted a ‘right to enter and reside’ for the purposes of s.36(3). Tracey and Griffiths JJ held that the correct approach for a decision maker is to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s.36(2). If the answer to that question is in the affirmative, it is necessary for the decision-maker then to turn to s.36(3) and determine whether the applicant is a person to whom that sub-section applies. If s.36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in subsections (4), (5) and (5A) limit the operation of s.36(3).

101.In this case, the Tribunal has found that the applicant does satisfy one or more of the criteria for a protection visa pursuant to s.36(2) of the Act and as such, it is necessary to consider if s.36(3) applies. Section 36(3) of the Act states:[89]

‘Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself if a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’

[89] Section 36(3) of the Act.

102.In SZRTC v MIBP [2014] FCAFC 43 Tracey and Griffiths JJ held that in the context of s.36(3), the word ‘temporarily’ does not introduce any temporal limitation. Such a limitation may be inherent in the word ‘reside’ because residence in a place suggests something more than a short or passing visit. Their honours held that any such inherent temporal limitation is not linked with protection obligations owed to an applicant. Such protection is provided by the qualifications which are to be found in subsections (4), (5) and (5A).[90] it was held that a stay of any length in a third country that involves ‘a pause in a person’s travel’ does not necessarily constitute temporary residence. Furthermore, it was held that in order to satisfy any ‘abode’ element of temporary residence, a person would not have to be able to stay in the third country for a period which would ordinarily require him or her to obtain accommodation.[91]

[90] SZRTC v MIBP [2014] FCAFC 43 @ [28]

[91] Op Cit @ [32]

103.Therefore, having considered the applicant’s circumstances, assuming that he voluntarily returned with a South Sudanese passport and legally entered a partner state, the Tribunal finds that in accordance with the EAC Treaty he would be able to enter any of the other Partner States as a visitor for up to six months. Accordingly, the applicant has not taken all possible steps to avail himself of his right to enter a Partner Sate pursuant to s.36(3) of the Act.

Non-refoulement in the East African Community

104.Having found that the applicant has not complied with his obligations under s.36(3) of the Act, then the Tribunal must determine whether one or more of the qualifications contained in subsections (4), (5) and (5A) limit the operation of s.36(3).  As such the Tribunal has considered whether the applicant has a well-found fear of being persecuted by other EAC Partner States[92] or alternately if there is a real chance, he will be returned to South Sudan by the other EAC Partner States.[93]

[92] s.36(4) of the Act.

[93] s.36(5) of the Act

105.The country information in relation the EAC and its Partner States notes that the main cause of migration in the EAC today are conflict, unemployment and poverty. For example, Kenya attracts migrants due to its strategic location as a regional hub in East Africa while Partner States such as Rwanda and Burundi have been affected by waves of conflict in the two countries.[94]  The Partner States currently host approximately 1.4 million refuges with approximately 30,000 of those being from other Partner States.[95]

[94]   Understanding intra-regional labour migration in the East African Community (EAC)- Literature Review Samuel Hall 15 June 2017; Ibid; Society for International Development, ‘The East African Community and the Refugee Question’ by Kenechukwu C. Esom, current migration situation in the EAC is complex and includes various forms of migration, such as flows of refugees, internally displaced persons (IDPs), and regular and irregular migrants. The labour force across the Partner States is concentrated in the agricultural sector with a high level of poverty being recorded in each State.[96]  Despite the lack of reliable data, it is generally assumed that human trafficking and smuggling constitute a large and increasing part of the migration flows in the East African Community.[97] While skilled labour migrants may move more freely between EAC countries, unskilled individuals to constitute the largest share of irregular migrants and tend to be concentrated in the in the domestic, service and hospitality sectors constitutes many victims of trafficking from the EAC.[98]

[96] Understanding intra-regional labour migration in the East African Community (EAC)- Literature Review Samuel Hall 15 June 2017; ibid

[98] ibid

107.The Tribunal notes that refugees are referred to only twice in the 'Treaty for the Establishment of the East African Community.'[99] Article 124 (4), (5)(h) which respectively provide that 'Partner states undertake to establish common mechanisms for the management of refugees'. Little or nothing more, has been done to give effect to this Treaty commitment.[100]  Rather the EAC has witnessed an increase in number of refugees being generated from Partner States due to poor governance, flagrant abuse and disrespect for human rights, political and ethnic persecution among others.[101] The region has an increased intolerance towards refugees with a greater willingness by Partner States  to deny asylum to citizens of other member states and to deport asylum seekers to situations where their safety from abuse and torture is less than guaranteed. In addition, it’s reported that political maneuvering by Partner States has occurred to frustrate efforts by their citizens to gain asylum in other states.[102] As a result, given the lack of initiatives towards the establishment of a refugee regime within the EAC there is a high level of skepticism in relation to the implementation of the Treaty and  formation of the Federation.[103]

[99] Society for International Development, ‘The East African Community and the Refugee Question’ by Kenechukwu C. Esom, ibid

[101] ibid

[102] ibid

[103] ibid

108.In circumstances where the EAC protocol does not remove the right of the states to expel or deport citizens for Partner States seeking refugee status, the right to freedom of movement within the EAC is unlikely to constitute a substitute for refugee protection or from refoulment.[104]  The country information states that while each EAC partner are signatories to the Refugee Convention[105] they have historically exhibited breaches of their non-refoulment obligations. For example, in 2002 Congolese refugees were forcibly repatriated to the Democratic Republic of the Congo (DRC).[106] More recently, Congolese refugees in Rwanda have feared being returned to DRC.  Despite Rwanda claiming that there are no barriers in theory to applying for citizenship the refugees have not been able to secure interviews with Rwanda officials and have lived in isolation for 14 years.[107] In 2005 Burundian authorities reportedly used physical force to return Rwandan asylum seekers back to Rwanda and in the same year Tanzania was accused of forcibly returning Burundians to their country.[108]

[104] Refugee Status Determination and Rights in Southern and East Africa: International workshop report University of Oxford Refugee Studies centre 1 December 2010, United Nations Treaty Collection, Chapter V Refuges and Stateless Persons. Reliefweb, ‘The forced repatriation of Congolese refugees living in Rwanda,’ 16 December 2002, rwanda#:~:text=During%20September%20and%20early%20October%202002%2C%20thousands%20of,forced%20repatriation%20ended%20as%20suddenly%20as%20it%20began.%3DA0

[107] Open Society Foundations, ‘The Return: Dilemmas for Congolese Refugees in Rwanda’ September 09, 2011 by Lucy Hovil; Protection Visa Decision record dated 30 January 2020 @p.18

109.In 2016 it was reported that the Rwandan government planned to return 70,000 Burundian refugees to their country. [109] It was reported that Mr. Thomas Perriello, US envoy for the Great Lakes region of Africa, said the reports suggested that Burundian refugees, including children, were being recruited from camps in Rwanda to participate in armed attacks against the Burundian government.[110] Further, in 2016, Human Rights Watch highlighted the Kenyan government’s use of intimidation, fear and misinformation in a voluntary repatriation program for Somali Refugees did not meet international standards for voluntary refugee return.[111] Finally, the UHNCR has also expressed deep concern at Kenya forcibly sending a South Sudanese opposition spokesman back to South Sudan after being granted refugee status in Kenya.[112]

[109]       BBC News, Rwanda seeks to expel Burundian refugees dated 12 February 2016 ibid

[111] Protection Visa Decision record dated 30 January 2020 @p.19, Kenya; Involuntary Refugee Returns to Somalia Human Rights Watch 14 September 2016; ‘Country Report on Huma Rights Practices 2016 – Kenya’ US State Department 3 March 2019; Protection Visa Decision record dated 30 January 2020 @p.19

110.Therefore, based on the available country information in relation to the absence of adequate protection for refugees in EAC Partner States, as well as the failure of Partner States to comply with their non-refoulment obligations in under the Convention, the Tribunal is satisfied that the applicant has a well-founded fear  of being persecuted by other EAC Partner States[113] in the event that he exercised his obligations pursuant to s.36(3) of the Act. In addition, based on the country information, the Tribunal is also satisfied that the applicant has a well-founded fear that he would be returned to South Sudan by the other EAC Partner States if he was to travel to a Partner State.[114]

[113] s.36(4) of the Act.

[114] s.36(5) of the Act

111.As such, the Tribunal finds that the applicant has a well-founded fear of being persecuted for the reason detailed in s.36(4) of the Act (his nationality). The Tribunal also finds that he has a well-founded fear of being returned to South Sudan pursuant to s.36(5) of the Act. As a result, by operation of s.36(4) and s.36(5) of the Act, the Tribunal finds that s.36(3) of the Act does not apply to the applicant. That is, he does not have the right to enter or reside in any other country other than South Sudan.   

112.Accordingly, the Tribunal finds that the applicant does have a well-founded fear of persecution as a result of being an ethnic Dinka of he is returned to South Sudan and as such finds that the applicant does satisfy s.36(2)(a) of the Act.

Complementary Protection Criteria

113.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

114.The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to  South Sudan by reason of his Dinka ethnicity.  

115.In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[115] The Tribunal has made earlier findings that the applicant does face a real chance of serious harm arising from the applicant’s claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to  South Sudan.

[115] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

116.The applicant made claims in relation to his father’s involvement in the militia fighting against the Sudan government and in relation to his mental and physical health. However, based on the reasons detailed above and the relevant country information, the Tribunal finds that there is no real risk of the applicant being significantly harmed by reason of his claim  of his father’s involvement with the militia or in relation  to his claims as to his mental and physical health .

117.Nevertheless, for the reason stated above, the Tribunal accepts and finds that there is a real risk that the applicant will suffer significant harm in South Sudan by reason of him being an ethnic Dinka.

118.At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

119.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to South Sudan, there is a real risk he will suffer significant harm as an ethnic Dinka as required by s36(2)(aa).

CONCLUSION

120.For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention) and as a result ss.36(2)(a) of the Act.

121.Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

DECISION

122.The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jason Pennell
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…