2010945 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of an elderly, unwell Sudanese woman. The applicant, who had been living in Australia since 2015 and previously held refugee status in another country, claimed she feared harm in Sudan due to her son's political activities, her own old age, and her sexuality. The Tribunal accepted the applicant's personal background, including her chronic health conditions and advanced dementia, as true.

The central legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, either under the 'refugee' criterion or on 'complementary protection' grounds. This involved assessing whether she had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, or if there was a real risk of significant harm upon removal to Sudan. The Tribunal was required to consider contemporary country information regarding the security situation in Sudan, including reports of widespread fighting, civilian casualties, gross human rights violations, and increased sexual violence against women.

The Tribunal reasoned that the applicant had a well-founded fear of persecution due to her membership in the particular social group of "elderly unwell women returning from a Western country." This conclusion was informed by recent reports from the UNHCR and DFAT detailing the severe and deteriorating humanitarian and security situation in Sudan, including significant risks to civilians and specific concerns about gender-based sexual violence. The Tribunal also noted that the applicant's personal circumstances, including her advanced age and significant health issues, would likely exacerbate any risks she might face upon return.

Consequently, the Tribunal concluded that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act 1958. The Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a).