2013370 (Refugee)

[2021] AATA 1607

2013370 (Refugee) [2021] AATA 1607 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013370

COUNTRY OF REFERENCE:                   South Sudan

MEMBER:Michael Hawkins AM

DATE:12 April 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 April 2021 at 4:37pm

CATCHWORDS
REFUGEE – protection visa – South Sudan – humanitarian visa cancelled on character grounds – statelessness – nationality law of South Sudan – race – Dinka ethnicity – civil war between Dinkas and the Nuer tribe – generalised violence – religion – Christianity – language – Arabic speaker – particular social group – long absent returnees to South Sudan with no family or support networks – forced conscription – generally credible witness – strength of the applicant’s claims – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZRSN v MIAC [2013] FCA 751

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 19 August 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 10 July 2020. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background:

10. The applicant is a [age]-year-old man from Bor, Jonglei State, Sudan.

11. In 1987, the applicant and his family relocated to Khartoum, Sudan, due to the civil war.

12. In October 2003, the applicant and his family relocated to [Country 1]

13. On 8 January 2006, a Global Special Humanitarian (XB-202) Visa was granted with the applicant as a dependent of his mother.

14. On 27 March 2006, the applicant and his family arrived in Australia.

15. On 24 September 2019, the Global Special Humanitarian (XB-202) Visa was cancelled under section 501 on character or related grounds. The applicant became an unlawful non-citizen.

16. On 1 October 2019, the applicant lodged a Request for Revocation of the cancellation.

17. On 24 December 2019 the applicant was released from criminal custody [and] subsequently detained under s189(1) of the Act.

18. On 25 May 2020, the Department determined not to revoke the cancellation.

19. On 9 July 2020, the applicant applied for a Protection Visa (Sub-Class 866).

20. The applicant had been charged with multiple offences in Australia between 2006 and 2013 and sentenced to terms of imprisonment. The Tribunal has not itemised the offences and sentences as they are not material to the assessment of the refugee and complementary protection criteria.

21. The applicant attended an interview with the delegate on 31 July 2020.

    Claims:

    Summarised from written claims and interview with delegate:

22. The applicant claims that he is stateless and is not a citizen of South Sudan.

23. The applicant claims his citizenship of Sudan was revoked in 2011.

24. The applicant claims that he is a Christian and member of the Dinka tribe.

25. The applicant claims that if he returns to South Sudan he will be killed violently like his father. He fears being forced to join a Dinka tribal army and being killed in conflict between the Dinka and Nuer tribes.

26. The applicant claims that he fears that due to being deported from Australia to South Sudan, and because he has no family in South Sudan, the South Sudanese authorities will deem him to be a criminal and will either place him in prison, kill him or force him to join the army.

27. The applicant claims he fears being killed by criminals due to generalised violence.

28. The applicant claims that South Sudan has high unemployment and he fears he will not be able to obtain employment and support himself, which may force him into a life of crime.

29. The applicant claims the medical facilities are not to Australian standard and if he gets ill or injured, he would not be able to afford medical treatment.

30. The applicant claims that he has no friends, family or relatives to support him in South Sudan. He claims his mother has a sister in South Sudan however he does not know her, and she would not be able to offer him any support.

31. The applicant claims he does not speak either the Dinka or Nuer language and won’t be able to understand what people are saying to him. He claims he can only speak Arabic and he will face discrimination and be persecuted for speaking Arabic because Arabs are regarded as the enemy.

32. The applicant claims he would be subject to discrimination and persecution on religious and cultural grounds as the majority of South Sudanese are Christian and hate Arabs. He claims he was brought up in the Muslim way in the north of Sudan, speaking Arabic.

    Evidence:

33. The Tribunal has before it a range of material, including, relevantly:

    • The applicant’s protection visa application forms completed and lodged on 9 July 2020 (“visa application”).
    • The applicant’s identity documents being a copy of document Global Special Humanitarian (XB-202) Visa;
    • The protection visa decision record (‘delegate’s decision record’) of 19 August 2020;
    • Country Report on Human Rights Practices for 2017 – South Sudan, United States Department of State, Bureau of Democracy, Human Rights and Labour, dated 20 April 2018.
    • The review application form which did include a copy of the delegate’s decision record;
    • All of the submissions, statements and letters of support submitted to the department during the revocation of cancellation process, including letters of support and a statement of the applicant dated 31 March 2020;
    • Country information from the applicant’s submissions and other sources, as discussed at the Tribunal hearing. The Tribunal also had regard to the Department of Foreign Affairs and Trade’s (DFAT’s) most recent Country Information Report on South Sudan, published on 5 October 2016 (“the DFAT Report”).

    Country of reference / receiving country

34. The applicant claims to be stateless.

35. The applicant claimed his Sudanese citizenship was revoked in 2011.

36. The Tribunal discussed with the applicant the findings of the delegate.

37. When queried as to why he claims to be stateless, the applicant replied that he left Sudan at a very young age and hasn’t been to South Sudan and doesn’t know anything about the country.

38. The Tribunal confirmed that the applicant had been born in Bor, Jonglei State, Sudan. He confirmed that was the case.

39. The Tribunal notes that the applicant’s father was also born in Bor, Jonglei State, Sudan.

40. The Tribunal further notes that Bor, Jonglei State, is in present day South Sudan. The applicant’s mother comes from Juba, the now capital of South Sudan.

41. The Tribunal notes that Article 1 of the 1954 Convention Relating to the Status of Stateless Persons provides that a ‘stateless person’ is a person who is not considered as a national by any State under the operation of its law. It is therefore necessary to examine, in this case, the nationality law of South Sudan.

42. The Tribunal discussed with the applicant some of the provisions of The Nationality Act, 2011 (Laws of South Sudan).

43. At the time of the applicant’s birth, Bor was in the southern part of the Republic of Sudan (Sudan).  On 9 July 2011, Sudan was geographically split when the new independent state of the Republic of South Sudan (South Sudan) came into being. Bor is the capital of Jonglei State. On 2 October 2015, Jonglei State was created by Presidential decree and it comprises Bor, Twic East and Duk Counties. Jonglei is one of 28 states that make up the new state of South Sudan.

44. The Sudanese Nationality Act 1994 (Sudan) as amended by The Sudanese Nationality Act (Amendment) 2011 (Sudan) states, at section 10(2):

    Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.

45. The Tribunal considered The Nationality Act, 2011 (South Sudan) (the South Sudan Nationality Act).[1]

    [1] Printed and published by the Ministry of Justice at Juba and dated 7 July 2011.

46. Section 5 of the South Sudan Nationality Act is the Interpretation clause, and provides that:

    “South Sudanese National” means a person who satisfies the eligibility criteria provided under Chapters III and IV of this Act.

47. Chapter III of the South Sudan Nationality Act relates to Nationality by Birth. Section 8(1) states:

    8. Eligibility Requirements

    (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.

48. Section 9 states:

    9. Certificate of Nationality

    The Minister shall issue a Certificate of Nationality to an applicant who is a South Sudanese National by birth in accordance with the provisions of section (8) above. The form of the Certificate, its designation and procedures for its issuance shall be set forth in the regulations.

49. The Tribunal accepts the evidence of the applicant that the applicant, his father and siblings were born in Bor, Jonglei State, Sudan in what is now South Sudan and his mother was born in Juba in what is now the capital of South Sudan. That being the case, by force of section 8 of the South Sudan Nationality Act, the applicant “shall be considered” a South Sudanese national under the law of that country.

50. The Tribunal also considered the Transitional Constitution of the Republic of South Sudan, 2011 (the Transnational Constitution). It provides, at Chapter II – Citizenship and Nationality, at Article 45(1) as follows:

    Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality.

51. The South Sudan Nationality Act is declarative – it confers South Sudanese citizenship on persons with a parent, grandparent or great-grandparent who was born in South Sudan. Persons fulfilling these criteria are not required on the face of the Act to take any further administrative action.

52. This conclusion is reinforced by section 9 of the South Sudan Nationality Act which requires the relevant Minister to issue a Certificate of Nationality to a person who is a South Sudanese national by birth by force of section 8. The relevant Minister does not have discretion in providing such documentation in a case where a person fulfils the requirements of being a South Sudanese national by birth. A certificate is not a precursor to South Sudanese citizenship but simply proof of it for an individual within one of the legislated categories.

53. There were no submissions from the applicant, or any other evidence, that the applicant had renounced or sought to renounce South Sudanese citizenship.

54. Considering the provisions of both the Transitional Constitution and the South Sudan Nationality Act set out above, the Tribunal is satisfied that the applicant is a South Sudanese national and was a South Sudanese national at the time the delegate made the reviewable decision.

55. The Tribunal discussed this outcome with the applicant. He replied that he was happy to accept the facts and move on.

56. Based on this and in the absence of any other evidence to the contrary, the Tribunal finds that South Sudan is his country of nationality and also his receiving country for the purposes of s.5(1) and s.36(2)(aa) of the Act.

57. The Tribunal notes that South Sudan is a member of the Economic Community of West African States (ECOWAS) and therefore the applicant, as a South Sudan national, may have a right to enter and reside in another member country for a period of time.  However, whilst sources indicate that ECOWAS protocols have made considerable legal headways in establishing freedom of movement and residency between ECOWAS member states, sources also suggest that full freedom of movement and rights to reside are limited by the independent laws and restrictions, administrative harassment, and extortion on the part of member nations.  The Tribunal also notes that the applicant has a criminal conviction and the country information indicates that each country has the right to prevent those with criminal convictions from entering.  For these reasons the Tribunal is not satisfied that the applicant has a right to enter and reside in another country based on South Sudan being a member of ECOWAS.

58. The Tribunal is 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, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s36(3).

    Hearing:

59. The applicant attended the hearing on 8 March 2021 which was conducted by video from the applicant’s detention facility. He was unaccompanied and not represented. The hearing proceeded in the English language but with the assistance of a Sudanese Arabic interpreter as required.

60. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.

61. The Tribunal explained that under Australian law, to be a refugee he must have a well-founded fear of persecution in South Sudan. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to South Sudan. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

62. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to South Sudan.

63. The Tribunal read to the applicant his claims set out above. The Tribunal asked the applicant whether his claims as read to him were accurate and complete. The applicant confirmed that they were accurate and complete and that he had no other claims.

64. The Tribunal discussed with the applicant that he had five witnesses recorded for appearance during the hearing. The Tribunal was advised that only one witness had been able to be contacted by telephone. The Tribunal had promised it would continue to try and contact the other four witnesses, but by the end of the hearing, none of the other four were responding on the phone numbers provided.

65. The Tribunal decided to take evidence from the only witness at the commencement of the hearing. The witness was the applicant’s sister.

66. The Tribunal asked the witness whether she was familiar with the applicant’s claims for protection. She replied that she was.  Asked to comment on them, the witness stated that her brother doesn’t know anyone in South Sudan. He would have no support in South Sudan.

67. The Tribunal asked the applicant whether she was familiar with South Sudan and asked whether she had been there. She replied that she had visited South Sudan in 2015. She had gone on a holiday to visit her mother’s sister, her aunt. Asked how she found South Sudan, she replied that it was alright, but that she wouldn’t want to live there long term. She stated that she felt safe, but that she didn’t really go out much. Asked how long she stayed, she replied one month. She said she didn’t know many people there. She also stated that her aunt lives between South Sudan and [Country 2].

68. The Tribunal asked the witness about her family members. She replied that her mother lived in Brisbane together with five siblings. There are also cousins from both sides of the family living in Brisbane.

1. The Tribunal thanked the applicant for her evidence.

2. The Tribunal asked the applicant why the family moved from Sudan. The applicant replied that it was because of the civil war.

3. The Tribunal confirmed that they left Sudan only because of the civil war.

4. The Tribunal asked the applicant about his family. He confirmed his sister’s advice and added that he has another relative in Melbourne.

5. The Tribunal inquired of the applicant about a [Ms A], from whom the Tribunal had received a statement.

6. The applicant replied that she was his girlfriend to whom he was engaged to be married.

7. The Tribunal asked why the applicant had not referenced her when he spoke of his family. Further, in a long statement to a previous Tribunal requesting that his previous visa not be cancelled, he had not made any reference to his girlfriend at all, notwithstanding [Ms A]’s claim they had been in a relationship since 2015 and that they were engaged.

8. The applicant confirmed that they were engaged, and that [Ms A] had four children from an earlier relationship. He was not the father of any of the children.

9. Again asked why the applicant had made no reference to her, or provided her details as a witness, he replied that she was fearful of being involved, and being in trouble with the law.

10. For the record, the Tribunal noted [Ms A]’s statement, wherein she spoke of the support the applicant gives to her and her children, and how she feels unsafe when he is not around.

11. The Tribunal asked the applicant whether any of his family had any political involvement in South Sudan or whether he had any political involvement with South Sudan while he had been in Australia.

12. The applicant replied that his father had no political involvement. He said that no one in his family was involved in politics. He said that he had no involvement in politics at all.

13. The Tribunal referred to the applicant’s claim to be a member of the Dinka people.

14. The Tribunal asked the applicant about that claim. He replied that he feared being forced to join the Dinka tribal army. Asked why he feared that, he replied that he had seen on YouTube a video of young men being taken away to join the army.

15. The applicant said he feared being killed in conflict. The Tribunal asked why that was the case. He replied that there is a civil war between Dinkas and the Nuer tribe. He said there is government corruption. He stated that the Dinkas are particularly targeted. He said he has seen on TV and heard about the revenge on the Dinka people.

16. The Tribunal discussed with the applicant Country Information that it had obtained from the DFAT Report.

    South Sudan has an estimated population of 12.04 million people and a high growth rate of 4.02 per cent per year. The majority of the population live in rural areas, with an estimated 18.8 per cent of the population living in urban areas.

    Following independence, it was estimated that the population was approximately 35.8 per cent Dinka and 15.6 per cent Nuer, with the remainder belonging to smaller ethnic and sub-ethnic groups including Acholi, Anuak, Azande, Bari, Bongo, Bviri, Didinga, Dungotona, Kakwa, Kuku, Lango, Lndi, Mandari, Murle, Ndogo and Shilluk.[2]

    [2] DFAT Report, paragraph 2.9

    The Transitional Constitution of the Republic of South Sudan states that all ethnic and cultural communities have the right to freely enjoy and develop their cultures and practice their beliefs and customs. South Sudan, however, remains a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence. Credible in-country sources, including human rights contacts, suggest that there is a significant correlation between ethnicity and an individual’s risk of discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 which intertwined both ethnicity and political opinion.

    Official and societal discrimination and violence linked to an individual’s ethnicity occurs in two distinct ways – as a result of the formal conflict between the Government and Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict. Tensions between the Dinka and Nuer ethnic groups have been historically common in South Sudan, with relations between them being punctuated by informal inter-tribal conflict, and now direct and open conflict. The dynamics within the Dinka and Nuer ethnic groups, however, are also complex – for example, a number of Nuer sub-ethnic groups remained loyal to the Dinka-linked Government following the outbreak of conflict in December 2013. While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO.

    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. Nilotics are the majority of the population in South Sudan and are also present in northern Uganda and western Kenya. Dinka are the largest ethnic group in South Sudan accounting for an estimated 35.8 per cent of the population, and have traditionally dominated South Sudanese society. Dinka are predominantly pastoralists located in the central and northern areas of South Sudan. There are a number of 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.

    Dinkas have been targeted by the Sudan People’s Liberation Army-In-Opposition (SPLA-IO) on the basis of 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. Witnesses reported that the SPLA-IO also raped women seeking refuge in the church. DFAT is aware of reports 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.

    Overall, DFAT 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. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba.[3]

    [3] DFAT Report, paragraph 3.7

17. The Tribunal invited the applicant to comment on that country information.

18. The applicant stated that he fears being killed in generalised violence. He said South Sudan is a dangerous place, except maybe in Juba.

19. The Tribunal suggested that he could return to Juba.

20. The Tribunal explained that the fact that he could live in Juba suggested that the fear he has does not relate to all areas of the country. He replied that he doesn’t believe that all of Juba is safe.

21. The applicant then stated that he was aware of a story where two Dinka men killed a little girl and were arrested. The two men said they killed the little girl because her parents were from a different tribe.

22. The Tribunal also noted that the applicant claimed to be a Christian.

23. It noted Country Information from the DFAT Report as follows:[4]

    [4] DFAT Report, paragraph 2.10

    The majority of the population is Christian although a substantial number of people, particularly in more isolated areas, follow traditional tribal beliefs. There are a number of prominent Christian denominations in South Sudan, including the African Inland Church, Episcopal, Presbyterian, Presbyterian Evangelical, Roman Catholic, Sudan Pentecostal and Sudan Interior. Coptic Orthodox, Ethiopian Orthodox and Greek Orthodox are also present, although in smaller numbers. Many Muslims migrated to Sudan following South Sudan’s independence, although some still remain.

    92.The Tribunal explained that the majority of the population are Christian.

    93.The applicant spoke of his being brought up in the Muslim way.

    94.The applicant also said that he used to attend Mosque.

    95.The Tribunal confirmed that the applicant was nevertheless a Christian and did not currently practice any Muslim faith.

    96.The applicant agreed that he is a Christian.

24. The Tribunal noted the applicant’s claim that he would likely be killed if he were to return to South Sudan. The Tribunal asked the applicant to explain why that might be the case.

25. The applicant replied that he will be singled out in South Sudan because of the way he speaks. He said that he doesn’t speak Dinka.

26. The Tribunal queried that, as it recalled that he admitted telling the delegate that he spoke Dinka. He replied that he speaks a little, just elementary and basic Dinka.

100.   The Tribunal confirmed that English is the official language of South Sudan.

English is the official language, although Arabic (including the local dialect often referred to as Juba-Arabic) is widely spoken, given that Arabic was the official language until South Sudan’s independence. Other regional and tribal languages are also very common, particularly outside of Juba.[5]

[5] DFAT Report, paragraph 2.11

101.   The applicant said he spoke Arabic. The Tribunal suggested that it didn’t seem likely that he would be persecuted because of his language. Arabic was widely spoken as it was the former national language of Sudan. He replied that he would be discriminated against. Asked why, he said that it was because the Arabic speakers fled the north and left the others behind.

102.   The Tribunal noted that the applicant spoke very good English, and that if he had to return to South Sudan, he could speak English which is the national language. And that consequently, there would be no concern about his having been brought up in the Muslim way or having spoken Arabic.

103.   The applicant agreed but stated that it related more to the way he spoke.

104.   The Tribunal explained that people are returning to South Sudan. That Dinkas are returning to Juba.

105.   It discussed Country Information as follows:[6]

Conditions for returnees differ depending on the individual’s ethnic or sub-ethnic linkages and whether the individual has or has been perceived to question the authority of the Government. Given the supremacy of the Dinka ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence. In-country contacts suggest that an ordinary Nuer or Shilluk who had not threatened the authority of the Government, such as by being perceived to support of the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO), would potentially be able to return to Juba without facing discrimination or violence.

[6] DFAT Report, paragraph 5.20

106.   The applicant replied that those Dinkas likely have supportive family back there.

107.   The Tribunal discussed with the applicant his work experiences in Australia. The applicant replied that he had had a very good job working in [a business] as a [Occupation 1] and [Occupation 2]. He said he also worked at [Company 1] doing [Occupation 3]. He said he did a few months at each job but the travel was difficult with overtime. He also added that he had started an apprenticeship in [Occupation 4], but he didn’t finish it.

108.   The Tribunal noted that the applicant was skilled in some respects.

109.   The Tribunal discussed country information with the applicant that suggested that whilst there is high unemployment in South Sudan, there is a lack of skilled and educated people following the years of civil war and that the South Sudanese government is counting on the return of those with skills and who are educated, and particularly English-speaking people. The Tribunal noted that the delegate had discussed this with the applicant. The delegate had noted that those who cannot speak English lack economic prospects[7] and suggested that the applicant might have better employment prospects in South Sudan, and particularly Juba, than many local youths.

[7] Country Report: South Sudan, Open Source Centre (United States), 70, 1 March 2012.

110.   The delegate had also suggested that a person who has returned from a western country and is personally familiar with operation of a society based on the rule of law and multiculturalism might be potentially more attractive candidate for a position of trust with an international organisation or NGO than a local youth who might be affiliated with a criminal gang or militia.[8]

[8] Ibid

111.   The Tribunal asked the applicant what he thought of what the delegate had suggested. He replied that you needed connections to get jobs.

112.   The Tribunal discussed with the applicant that he does have skills in a field that would be of great benefit to South Sudan as it reconstructs following the civil war. Further, he has demonstrated considerable resourcefulness in the past and since arriving in Australia has worked to support his girlfriend and her family.

113.   The applicant again spoke of his fear of being killed in generalised violence.

114.   The Tribunal considered and discussed Country Information with the applicant, noting that the situation in parts of South Sudan was dire, and that there was widespread poverty and general violence. The Tribunal talked about how these risks were faced generally by the whole South Sudanese population. The Tribunal explained that it needed to understand how the applicant will be personally at risk from suffering harm.

115.   The applicant stated that the authorities will deem him a criminal. He went on to state that if he was deported because of what he had done in Australia, then he might be locked up for the same crime. And his case would be worse as he has no supportive family.

116.   The Tribunal discussed double jeopardy laws with the applicant. Under Article 7(3) of South Sudan’s Penal Code Act 2008, individuals who have been tried and convicted or acquitted of a crime in a foreign court may not be convicted in South Sudan of the same crime.

(3) No person shall be convicted in Southern Sudan for an offence committed outside Southern Sudan, if it is proved that such person was tried outside Southern Sudan before a Court of competent jurisdiction, and that such person has served his or her sentence. Furthermore such person shall not be convicted if he or she was declared innocent by such Court.

117.   Asked to comment, the applicant accepted the law at face value. He stated he was more concerned about being taken to jail or the army for being homeless and having no family support.

118.   The Tribunal discussed the applicant’s aunt, the one who his sister had visited. The Tribunal asked why he couldn’t also go and visit her, at least initially, whilst he found a job and a place of his own.

119.   The applicant replied that she also lives in [Country 2]. The Tribunal suggested that he didn’t need to live with her permanently, only for so long as it took him to get established. The applicant shrugged his shoulders.

120.   The applicant reiterated his fear of generalised violence. The Tribunal again restated that the harm of which he spoke was harm faced by the population generally and is not faced by the applicant personally. The applicant replied that he agreed he could not be certain that anything will happen to him. The Tribunal commented that no country can guarantee that its citizens will, at all times, and in all circumstances, be safe from violence.

121.   The applicant again spoke of his fear of being forced into the army. He spoke of hearing about children and young people being made to join the army. He also said that he had heard of a case of a man who was deported from the USA being questioned, and when he couldn’t answer the questions, and as he had no family support, ended up in the army.

122.   The Tribunal asked the applicant where he had seen that article. He replied that he couldn’t remember where.

123.   The Tribunal considered country information from the DFAT Report. It noted that South Sudan has 197,000 active military personnel, about 1.9% of the population. DFAT reported that in 2016, the SPLA and SPLA-IO were forcibly recruiting children, despite a commitment not to do so.

124.   However, the Tribunal has not been able to source, and nor was any been submitted, any recent evidence of forcible adult recruitment to militias or any other military group. The Tribunal noted information sourced by the delegate that there was a report of a man being forcibly recruited from Juba, but that it was not corroborated.

125.   The Tribunal discussed with the applicant that as a [age]-year-old male he did not fit the profile for child recruitment.

126.   The Tribunal asked the applicant about any medical conditions that he has. He replied that he had a [specified medical condition] and took medication for sleeping and anxiety. The Tribunal acknowledged that South Sudan has a very poor public health system.

127.   The Tribunal concluded the hearing by inviting the applicant to offer any further comments that he might have. The applicant replied that he is sorry for the crimes he has committed and would like a second chance. He said he has learned a lot and is a new man. He wanted to prove himself to his family and the community.

Assessment of Claims and evidence, and findings:

128.   The mere fact that a person claims fear of persecution for a particular 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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).

129.   The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

130.   The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, 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.

131.   The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

132.   Whilst the Tribunal found the applicant to be a generally credible witness, it has strong reservations about the strength of the applicant’s claims.

133.   The applicant’s claims and evidence during the hearing were vague and uncertain which was consistent with his written claims. The Tribunal accepts that the applicant left Sudan as a child and that his recollections of events are substantially what he has been told in the intervening years since his departure. His understanding of current events in South Sudan is what he has gleaned from media and talk amongst others.

134.   The applicant addressed the Tribunal’s questions and concerns confidently and articulated his thoughts well though in a generalised way. The Tribunal noted that the applicant’s fundamental claims are that he fears harm in South Sudan because there is widespread poverty and violence, that he has not lived there, he doesn’t have a home to go to, he has no family and friends in the country and would not be able to get a job. He also worries about being forced to join a Dinka tribal army, not speaking the language and having a criminal record.

135.   The Tribunal is satisfied, after a long discussion with the applicant and consideration of his evidence, that he has a subjective fear of harm of returning to South Sudan. The Tribunal accepts that the applicant does not want to return to South Sudan and wishes to stay in Australia where he can be reunited with his partner and her children. The Tribunal acknowledges the written evidence of his partner as to his being a good father and partner, the evidence of his sister as to being unfamiliar with South Sudan and the Tribunal accepts that the applicant is apologetic for his crimes.

136.   Based on the evidence provided to the Department, and as discussed in the hearing, the Tribunal accepts that the applicant comes from Bor, Donglei State, in South Sudan.

137.   The Tribunal accepts that the applicant left Bor, Donglei State, South Sudan when he was only [age] old. It accepts he relocated to Khartoum and then to [Country 1].

138.   The Tribunal accepts that the applicant and his parents left South Sudan because of the civil war. It accepts that they went to Khartoum and after his father passed, then to [Country 1] and that all of his immediate family now live in Australia.

139.   The Tribunal accepts that the applicant knows that his parents were not involved in any political party. The applicant himself has expressed no political opinion in relation to South Sudan. He did not express to the Tribunal any political opinion in relation to why events were as they are in South Sudan. The applicant has produced no evidence of any social media postings that he has made in relation to the political situation in South Sudan.

140.   The applicant has been absent from South Sudan for more than [number] years and not actively involved in any political activity and the Tribunal does not accept that on his return he will involve himself in any political activities. The Tribunal finds that the applicant has never been, or will be in the future, committed politically to any political activities. The Tribunal accepts that he has no political profile.

141.   The applicant has made no claims to fear harm in South Sudan in the foreseeable future on the basis of political opinion, be it his own or one imputed from his parents.

142.   The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of political opinion.

143.   The Tribunal considered and discussed with the applicant evidence provided to the delegate as to his Dinka ethnicity. The applicant appeared to have little knowledge about the Dinka people and certainly made no written claims that he feared persecution from other ethnic groups because of his Dinka ethnicity. His claim related more to the chances of him being forced to join a Dinka tribal army and then being killed in conflict.

144.   The Tribunal considered Country Information in relation to the Dinka people, noting they constituted 35% of the overall population of South Sudan and making them the largest ethnic group in South Sudan.

145.   The Tribunal accepts Country Information from the DFAT Report that states 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. In Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government currently has almost unencumbered control over Juba.

146.   The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of his ethnicity or race. The Tribunal is quite satisfied that by virtue of there being a low risk of harm in Juba, and given the fact of the Dinka dominated government in Juba, any chance of such persecution then does not relate to all areas of South Sudan.

147.   The Tribunal considered the applicant’s claims as to his Christianity.

148.   The Tribunal accepts that the applicant is a Christian despite having been brought up in the Muslim way.

149.   The Tribunal accepts Country Information from the DFAT Report that states that individuals are unlikely to experience official or societal discrimination or violence on the basis of their religious identity alone.

150.   The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of his religion.

151.   The applicant claimed that he fears persecution because he speaks Arabic and doesn’t speak Dinka.

152.   The Tribunal discussed this at length with the applicant, noting that he spoke some Dinka and very good English and confirming that English was the official language of South Sudan.

153.   Further, no country information could be sourced, or none was submitted, that contends that people who speak Arabic are discriminated against or face persecution. The Tribunal is not surprised by this as Arabic is widely spoken and was the official language of Sudan.

154.   The Tribunal also discussed that some South Sudanese have returned to South Sudan after being absent for many years and are reintegrating into the community. It discussed Country Information relating to returnees. Furthermore, the Tribunal discussed information that indicated that the South Sudanese government is counting on the return of those with skills and who are educated and speak English which may place him in a preferred position for employment.

155.   No country information could be sourced, and none was submitted, to support the applicant’s claim that those returned to South Sudan without family support, or a home, will be killed, imprisoned or forcibly conscripted into the military.  

156.   Accordingly, the Tribunal is satisfied that the applicant does not have a well-founded fear of persecution on the basis of his membership of a particular social group, being, “long absent returnees to South Sudan with no family or support networks”. The applicant could not identify who it is who might seek to cause him harm by reason of his limited knowledge of South Sudan and his having no family or friends or home in South Sudan. There is no evidence to suggest, nor does country information identify, that the State would persecute the applicant on the basis of him having no home, family or friends or little knowledge of South Sudan. In fact, country information suggests that he will be encouraged to return and participate in the economic recovery of South Sudan given his work and English-language skills. Furthermore, his Dinka ethnicity is that of the controlling government in Juba.

157.   The Tribunal finds, on the basis of that Country information, that the situation in South Sudan is significantly different to that when the applicant fled Sudan as the civil war is over and government has been installed, though the Tribunal acknowledges that the situation for some people in parts of South Sudan is dire. There have been only limited reports that the South Sudanese government has arbitrarily killed its opponents or been involved in politically motivated disappearances. The Tribunal does not accept that the applicant will be targeted in the future because he and his family fled the civil war and because he is not of adverse interest to the authorities and is not politically active or motivated.

158.   The Tribunal accepts that the applicant has a criminal record in Australia.

159.   The Tribunal notes that the victims of his crimes are not South Sudanese. Accordingly, the Tribunal accepts that there is no risk that he will be harmed if he returns to South Sudan because of the nature of his crimes or by any victim’s family or the community.

160.   The Tribunal also discussed the double jeopardy laws with the applicant and how they would operate to prevent him being convicted for the crimes he committed in Australia.

161.   The Tribunal acknowledges that it may be possible that South Sudanese authorities may become aware of his crimes committed in Australia and he may be questioned on his return by the South Sudanese authorities, particularly if he is returned on an involuntary basis. The Tribunal is satisfied that even if the applicant was detained and questioned on his arrival over the offences committed in Australia by the South Sudanese government authorities, the applicant would not face a real chance of serious harm or a real risk of significant harm as the South Sudanese government has no adverse interest in him. His crimes were committed abroad and double jeopardy laws will operate to protect him from further punishment.

162.   The applicant claims that he has nowhere to live and no remaining family in South Sudan that he is aware of.

163.   The Tribunal acknowledges that the applicant has been absent from South Sudan for over [number] years.

164.   Country information indicates that some South Sudanese have returned to South Sudan after being absent for a similar period and are reintegrating into the community. The Tribunal does not accept that there is anything in the applicant’s profile that would cause him to come to the adverse attention of any person or authority on his return. Country information indicates that given the supremacy of the Dinka-ethnic group in Juba, Dinkas would likely be able to return to Juba without facing discrimination or violence. The Tribunal does not accept that his prolonged absence from South Sudan would elevate his profile over and above all the other returnees who have also been absent from South Sudan for prolonged periods and who are returning or have returned to South Sudan.

165.   The applicant has no home in South Sudan and no family or relatives in South Sudan that he is aware of, except for an aunt. He has no ties to any particular community in South Sudan. The Tribunal is satisfied that it would not be unreasonable for the applicant to locate himself in Juba where he would be considered most safe and secure and where the best job prospects might be. He has no ties to any other part of South Sudan.

166.   The Tribunal notes from the evidence of his sister, a witness called on his behalf, that she has visited the aunt, and whilst it is acknowledged that the aunt lives between South Sudan and [Country 2], it might not be unreasonable to expect that the applicant could call upon the aunt for support, especially given the concerns that his own mother and siblings have for him and the representations they could make to the aunt on his behalf, and given that his sister spent one month visiting her.

167.   While the Tribunal acknowledges it will be difficult for the applicant on his return to find accommodation and employment, he does have skills and language advantages and has demonstrated considerable resourcefulness in the past and in supporting his family in Australia. As discussed with the applicant, while the Tribunal acknowledges the high unemployment rate in South Sudan, it does note country information that refers to there being a lack of skilled and educated people following the years of civil war and the South Sudanese government counting on the return of those with skills and who are educated and English-speaking to assist in economic reform.

168.   The Tribunal does not accept that the applicant would not be able to find and obtain work upon return to support himself.

169.   The Tribunal is satisfied that he will be able to find employment as he has skills and experience and language advantages that will assist him in any workplace.

170.   While he may experience some financial hardship on his immediate return to South Sudan, he does have skills to find employment. The Tribunal finds that the financial hardship the applicant may experience will not be significant such that it will amount to serious harm or significant harm.

171.   On the basis of the evidence before it, the Tribunal does not accept the applicant would be unable to find accommodation, or that he would suffer a denial of the capacity to earn a livelihood of any kind such as would threaten his capacity to subsist, or significant economic hardship to the point of threatening his capacity to subsist, or the denial of access to basic services such as accommodation to the point where such denials threatens his capacity to subsist. The Tribunal finds that the applicant will have the capacity to subsist on his return to South Sudan.

172.   The Tribunal has given considerable consideration to the country information and research. The Tribunal notes that the applicant provided no written submissions in support of his claims. Country information in the DFAT Report addressed issues such as widespread violence, corruption, health risks and dissatisfaction with the country’s leadership. As discussed with the applicant, much of the information considered attests to the situation in South Sudan that affects the population as a whole. The Country Information demonstrates that the corruption, poverty and violence to which the country information refers is generally faced by society at large. The applicant is not targeted personally. The applicant’s circumstances do not satisfactorily establish that his personal risk of experiencing harm is personal and present.

173.   The Tribunal is satisfied that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to South Sudan.

Cumulative claims

174.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal finds that there is no real chance that the applicant will suffer persecution as a consequence of his Dinka ethnicity, his long-term absence from South Sudan, his speaking Arabic, his Christianity, his criminal record, the general situation in South Sudan or being a returnee, or any other reason if he returns to South Sudan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to South Sudan. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?

175.   The Tribunal has considered the applicant’s claims under complementary protection.

176.   The Tribunal does not accept that the applicant fears that he will suffer significant harm as a consequence of his Dinka ethnicity, his long-term absence from South Sudan, his speaking Arabic, his Christianity, his criminal record, being a returnee, the general situation in South Sudan or any other reason if he returns to Liberia.

177.   The Tribunal finds that the applicant would not be faced with unreasonable difficulties finding accommodation or employment in South Sudan if he was required to return. Further, the South Sudan government will be relying on returning nationals with skills and education to assist with its economic recovery. Further, the applicant would be in a position to afford medical treatment if required and the medications he presently relies upon.

178.   The Tribunal also notes Section 36(2B)(c) which states that there is taken not to be a real risk that a non-citizen will suffer significant harm in a country where the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

179.   As discussed extensively with the applicant, the Tribunal accepts and understands that there is widespread poverty and violence in parts of South Sudan but, as explained to the applicant, the applicant is exposed to the same risk that all other South Sudanese are exposed to. Neither the applicant nor his witnesses were able to identify any particular personal risk of harm to the applicant.

180.   The Tribunal noted that the applicant made a vague claim as to concerns of being separated from his partner and her children and his mother, brothers and sisters and cousins.

181.   The Tribunal has considered whether a claim of significant harm arises as a consequence of the applicant being separated from his partner and her children and his mother, brothers and sisters and cousins. Whilst noting the vague nature of the claim, the Tribunal has given consideration to the possibility that there may be psychological harm suffered by the applicant.

182.   In SZRSN v MIAC [2013] FCA 751 the Federal Court found that separation of family members could not amount to ‘significant harm’ as defined in s.36(2A) because it is harm arising from the act of removal itself, and also because it would not meet the ‘intention’ requirement. The Tribunal notes that this case involved the separation of the applicant from his children in Australia, but the Tribunal is satisfied that it is indistinguishable from the present case of an applicant being separated from a partner as well as “step” children, mothers, brothers and sisters and cousins.

183.   The fact that a person may enjoy less favourable social, economic or cultural rights in another country does not, of itself, give rise to a non-refoulement obligation. It may lead to a degrading condition of existence, but that does not constitute degrading treatment for the purposes of the Act. “Treatment” does not cover degrading situations arising from socio-economic conditions. “Treatment” must represent an act or an omission of an individual or one that can at least be attributed to him or her.[9] Further, the absence or inadequacy of medical treatment is not considered to be a basis for non-refoulment obligation in its own right.[10]

[9] CCPR Commentary, Manfred Nowak, NP Engel, 1993, p.157

[10] ibid

184.   In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to South Sudan now or in the reasonably foreseeable future.

185.   Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to South Sudan now or in the reasonably foreseeable future.  

Conclusion: Refugee Criterion

186.   Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

Conclusion: Complementary Protection

187.   Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to South Sudan that there is a real risk that he will suffer significant harm.

Overall conclusion:

188.   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).

189.   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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

190.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

191.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Michael Hawkins AM
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.

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