2010800 (Refugee)

[2020] AATA 3832

2010800 (Refugee) [2020] AATA 3832 (11 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2010800

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Rodger Shanahan

DATE:11 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2020 at 3:48pm

CATCHWORDS

REFUGEE – protection visa – Sudan – tribal war – found by department not to be stateless, but Sudanese citizen – mother died when applicant was young and father’s whereabouts unknown – raised by Australian citizen aunt and came to Australia on humanitarian visa – credibility and attitude – no real knowledge of or connection to conflict – peace agreement – complementary protection – no family or social links or support network – few skills to survive – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 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 a stateless, applied for the visa on 27 April 2020.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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.

   CLAIMS AND EVIDENCE

   Protection Visa Application

9. The applicant claimed that he wanted to stay in Australia and raise his [age] year-old [child].  He claimed that he and his family fled to a refugee camp and after six years they were then able to come to Australia. He had nowhere to go back to as all of his family had fled when he was a child.  He did not know what would happen to him if he was sent back as all of his family were here.

10. He claimed that he couldn’t return because there because it was a war zone, the refugee camp was a violent place and he had been traumatised. He would be harmed if he returned because there was tribal war going on.  He could face anything if he returned to the country that he knew nothing about.

    AAT Hearing

11. The applicant was advised the Tribunal wanted to establish his nationality and he claimed he was born in Bombo, in Sudan. Asked if he had Sudanese citizenship he said that he did but only his parents knew and he never asked them. His mother died when he was young and his maternal aunt took him under her wing. She was Sudanese but had Australian citizenship – she also had Sudanese citizenship. He claimed that his parents registered his birth. He was asked to clarify whether he was talking about his birth or Australian parents.

12. Asked if his birth in Sudan was registered with the authorities there, he said he didn’t know. Asked if his Australian mother knew, he claimed that he didn’t know and hadn’t asked her. Asked if he had ever tried to have Sudanese citizenship conferred on him, he didn’t answer. He didn’t know what his birth father’s nationality was, he said he didn’t know and had never asked his Australian mother if she knew.

13. Asked if he considered himself of Sudanese origin based on his birth and family, he said that he did. Asked if his birth or family members had any family members in Sudan, he said he didn’t know and had never asked. He never asked his parents about anything to do with these issues. His Australian mother has a brother in Perth, and a sister in Australia (Perth). He didn’t know if she had any other siblings anywhere else.

14. Asked about his Australian father’s siblings, he said that he had some relatives in Africa but had no clue where because he had never spoken to him about his family. It was put to him that it was normal to ask about aunts or uncles, and he said he never had the chance as he was in and out of home, in jail and living with his girlfriend. His Australian parents were still married. He was [Age 1] or [Age 2] when he came to Australia in 2007. He was asked again and said that he never spoke to his father about whether he had any aunts or uncles, and he again said he never thought about speaking to him about his family.

15. Asked what serious harm he feared if he were to return to Sudan, he said he would have no clue about the country. He was advised that he had claimed protection in the event of returning to Sudan so he had to express what his fear was. He was asked why he would be persecuted in Sudan. He claimed that growing up in Australia he knew nothing about Sudan and thought if he returned to Sudan he would be murdered. People said his father was in Sudan but he didn’t know where he was.

16. Asked why he thought he would be targted in Sudan and by whom, he claimed that he had no real idea about Sudan. Asked why he thought he would be killed if he knew nothing about it, he asked for the next question. He was advised that he didn’t get to choose the questions he answered and he wasn’t helping himself as he needed to convince the Tribunal he would face serious harm. Asked the question again, he said he didn’t know. Asked why he put in a protection application, he claimed that he thought he needed to so he wouldn’t be returned.

17. It was put to him that there was a difference between not wanting to go back and being harmed if he did so. He said he had no reason to believe he would be harmed. It was put to him that he had claimed in his application that Sudan was a war zone and that there was a tribal war and he was asked how he came to be of this view. He said he didn’t know and just wrote it.

18. Asked if his Australian parents still had contact with anyone in Sudan, he said he didn’t know as he had been in jail for 18 months. He left home when he was [a teenager] and didn’t know who they contacted. Asked who advised him to submit a protection visa application, he said it was his case manager in Perth. Asked if he was in contact with his Australian brothers and sisters he said he was but had no clue if they were in contact with anyone in Sudan. He was asked if he had any social media and he said he had a [Social media 1] page [user name]. The member searched his [Social media 1] site, particularly his contacts. He also had [other social media applications].

19. Asked what family members he had contact with in Australia, he claimed that it was his mother and family members.  Asked if he had any parenting responsibilities for his child or if he was divorced, he said they were never married and he was in detention. He paid no child support as they agreed to take care of the child 50:50 and she claimed she didn’t need any money from him. They never went to family court.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant arrived in Australia on a Global Special Humanitarian Visa in 2006 at the age of [Age 1] as a dependant.  He claimed that he was stateless and didn’t provide any documents that could support any claim of nationality.  The Department had previously wrestled with this issue at length and determined that he is a Sudanese citizen, or able to obtain Sudanese citizenship. I agree with their reasoning and for this reason the Tribunal will assess his application using Sudan as the country of reference.

21. The applicant is [an age] year-old man.  He claimed that he was stateless and that he couldn’t be returned to Sudan because he didn’t know anyone there, it was a war zone and there was a tribal war going on.    

22. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth.  Nor can significant inconsistencies or embellishments be lightly dismissed.  The Tribunal is not required to accept uncritically any and all claims made by an applicant.

23. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable or persuasive witness, and find that he fabricated much of his claim in order to be granted a protection visa.

    Sudan War Zone

24. I do not accept that there is a real chance that the applicant would be at risk of serious harm from the conflict if he returned to Sudan. Although there have been ongoing insurgencies in Somalia’s periphery for years, a peace agreement has recently been signed.[1]  The applicant evinced no real knowledge of conflict inside Sudan and I am satisfied that he has no contact with any warring faction or is wanted or would be targeted by any of the same. Indeed, his attitude towards making a claim and knowledge of any subject matter relating to his claim or indeed any agents of persecution did nothing to instil in the Tribunal that there was any substance to his claim to fear serious harm due to conflict in Sudan.

    [1] accessed 11 September 2020.

25. Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.

    Complementary Protection

26. Although I have not found the applicant to be at any risk as a result of any conflict, tribal or otherwise in Sudan, I do accept that the applicant lacks any connections, let alone support network in Sudan, and that he has been brought up as a teenager and young adult in Australia and therefore has built roots in this country, notwithstanding his criminal record.

27. Whilst his attitude during the hearing did little to endear him to the Tribunal, the reality is not what one thinks of his approach to the proceedings, but rather what is fair and reasonable. Having checked the available social media used by him as well as reading the notes regarding his previous interview, I am satisfied that he has no real social or familial links with Sudan that could help him navigate what is by now an alien landscape to him. He also has few skills that would allow him to survive, let alone prosper in Sudan.

28. Given these circumstances, I accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sudan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

29. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

30. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …