2010945 (Refugee)

2010945 (Refugee) [2024] AATA 3373 (30 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Joumana El Halwe (MARN: 1388161)
CASE NUMBER: 2010945

COUNTRY OF REFERENCE: Sudan
MEMBER:Paul Noonan
DATE:30 May 2024
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 30 May 2024 at 12.40pm

CATCHWORDS
REFUGEE – protection visa – Sudan – particular social group – elderly unwell women returning from a Western country – security situation in Sudan – gender-based sexual violence – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sudan, applied for the visa on 19 March 2019. The delegate refused to grant the visa on the basis that the applicant would not face a real chance of persecution now or in the reasonably foreseeable future should she be required to return to Sudan. Further that she will receive ongoing support from her family such that there is not a real risk that she will suffer significant harm requiring complementary protection be given to her should she be required to return to Sudan.
An initial hearing was scheduled in this matter by the Tribunal. However, the applicant’s representative subsequently made extensive submissions with associated medical evidence that the applicant is suffering from advanced dementia and other significant health complications. The applicant is [age] years old. On the basis of these submissions, and the evidence from [Hospital 1’s] palliative care team and the applicant’s treating doctor with respect to the poor health and advanced dementia of the applicant, the Tribunal accepts that the applicant is not capable of participating meaningfully in a Tribunal hearing. The Tribunal asked the applicant’s representative to provide written submissions on her behalf. These were subsequently received. After considering the written evidence pertaining to this matter the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it, pursuant to s 425(2).
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent full DFAT report with respect to Sudan was produced some time ago on 27 April 2016. Accordingly, the Tribunal has assessed more contemporary country information with respect to the situation for the applicant in the country, including a DFAT situational update issued on 12 May 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
There is no dispute that the applicant is a national of Sudan. The delegate’s decision records that she provided a Sudanese passport and that there were no concerns as to the identity of the applicant. The Tribunal finds she is a citizen of Sudan and has assessed her claims against that country as her country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an elderly] female. The material before the Tribunal indicates that she was born in [Town 1], Sudan. She has several adult children residing in Australia and [other countries]. She listed her siblings as deceased. She has been living in Australia since [September] 2015. She was previously living in [Country 1] where she had resided for 10 years after moving there from Sudan. She received United Nations refugee status while living in [Country 1]. She has not previously worked in paid employment or studied. She is under the supervision of a palliative care team at [Hospital 1] in Australia and suffers from several chronic health conditions including advanced dementia.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
In her written claim the applicant stated (in summary) that her son went missing in Sudan because of his political opinion and fears reprisals from the authorities because of her son’s beliefs and activities. She also fears harm because of her old age and sexuality in Sudan.
For the following reasons the Tribunal finds the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group ‘elderly unwell women returning from a Western country’.
The UN Refugee Agency reported in May 2023 that widespread fighting has commenced in Sudan since 15 April 2023. Hundreds of civilians had already been killed and civilians were increasingly without access to essential services. This had led to large numbers of internally displaced people. The UNHCR called for the suspension of negative decisions on applications for international protection and issued a non-return advisory for all former habitual residents of Sudan due to the rapidly deteriorating humanitarian situation in the country.[1]
[1] UNHCR Position on Returns to Sudan | Refworld (accessed 24 May 2024).
DFAT advises that the latest conflict situation in Sudan is expected to be protracted. DFAT assesses that the conflict had already led to significant levels of civilians being killed and injured, significant gross human rights violations including the targeting of medical staff, increased sexual violence levels against women and the forcible displacement of civilians. DFAT advises that most civil services including health care, utility supplies, communications, food supply, water supply and fuel have either ceased to operate or have been severely disrupted. All foreign citizens of well-resourced countries have been evacuated by air. Large scale refugee outflows are recorded as being underway to all neighbouring countries.[2]
[2] DFAT Situational Update – Sudan, 12 May 2023
The UK Home Office published a country policy and information note on the humanitarian situation in Sudan in February 2024. The executive summary states that the current humanitarian situation in the country is said to be dire. Millions of civilians have been displaced and are currently in need of humanitarian assistance. Some 13,000 people have died in the conflict in the past 10 months. The UK Home Office currently assesses that the humanitarian situation in Khartoum, Darfur, Kordofan, Al Jazira and Sennar (which have experienced the most intense fighting) is so severe that there are substantial grounds for believing that there is a real risk of serious harm because conditions amount to torture or inhuman or degrading treatment as set out in paragraphs 339C and 339CA(iii) of the Immigration Rules/Article 3 ECHR. Health facilities continue to come under attack and the health care situation remains dire in all parts of the country. Credible reports of gross human rights atrocities including mass killings and raping of civilians have been issued with respect to recent fighting in 2024.[3]
[3] UK Home Office, Country Policy and Information Note, Sudan: Humanitarian situation, version 2.0, February 2024
The UK Home Office reported an analysis that cases of sexual violence are surging and that women-led organisations in Sudan have reported that gender-based violence services and supplies have been severely disrupted. There has been a total breakdown in the general security situation and there is frequent reporting of severe violence being indiscriminately perpetrated upon civilians. Newly arrived returnees in Sudan have been targeted for assault, robbery and other violent acts while trying to reach family or safe destinations.[4]
[4] UK Home Office, Country policy and information notes: security situation, Sudan, June 2023.
The Tribunal is satisfied that the above country information reflects that an unwell elderly woman such as the applicant, who has returned from a Western country, will be at high risk of being targeted for assault and robbery for the essential and significant reason of her association with a Western country and her elderly and unwell status. This is because she will be perceived to have some assets such as cash, having lived in a Western country, and that her unwell elderly status will make her an attractive and easy target. Her gender also makes her vulnerable to sexual assault given the significant levels of gender-based sexual assault currently being carried out on an indiscriminate basis throughout Sudan and she would be targeted for the essential and significant reason of her gender on this basis.
For all of the above reasons, the Tribunal finds that the applicant faces a real chance of harm if returned to Sudan, either now or in the foreseeable future. That harm includes gender-based and sexual violence and targeted violence and robbery due to her status as a newly returned elderly unwell woman from a Western country. The Tribunal is satisfied the feared harm constitutes serious harm for the purposes of s 5J(5). It follows that the Tribunal accepts that the applicant meets the requirements of s 5J(1)(b). The Tribunal is also satisfied that the persecution involves systematic and discriminatory conduct as per s5J(4)(c).
The Tribunal is satisfied that the harm feared by the applicant will be directed at her for the essential and significant reason of her membership of the particular social group ‘elderly unwell women returning from a Western country’ for the purposes of s 5J(1)(a). The Tribunal considers that this group is identifiable by the characteristics of age, health, gender and personal history and the common characteristics or attributes of the particular social group are not a shared fear of persecution.
The country information above reflects that Sudan has fallen into a state of complete lawlessness with widespread and large-scale fighting, and widespread and egregious human rights atrocities being perpetrated by armed paramilitary groups and other armed actors, including criminal groups, against civilians without repercussions. The Tribunal also accepts that the applicant is without family members in Sudan. In such circumstances, the Tribunal concludes that effective protection measures are not available to the applicant and the harm she fears extends across all areas of Sudan for the purposes of s 5J(1)(c) and 5J(2). The reasons for the well-founded fear of persecution also relate to innate or immutable characteristics of the applicant for the purpose of s5J(3).
It follows that the Tribunal is satisfied that the applicant has a well-founded fear of persecution as per s 5H and the sub-criteria at s 5J. There is also no suggestion on the evidence before the Tribunal that the applicant has a right to enter and reside in, whether temporarily or permanently, any country apart from Australia.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Paul Noonan
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.
…

[2024] AATA 3373

30 May 2024

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