2101907 (Refugee)

Case [2021] AATA 1460

2101907 (Refugee) [2021] AATA 1460 (4 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2101907

COUNTRY OF REFERENCE:                   South Sudan

MEMBER:Jane Marquard

DATE:4 May 2021

PLACE OF DECISION:  Sydney

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 04 May 2021 at 9:43am

CATCHWORDS
REFUGEE – protection visa – South Sudan – race – Dinka – imputed political opinion – Dinka government supporter – inter- and intra-ethnic conflict –  particular social group – returnee from Western country – conscription and general violence – mental health – humanitarian visa – citizenship law of South Sudan – widespread security and economic conditions – third country protection – East African Community – COVID-19-related border closures – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36, 65, 91N, 91P, 501(3A)(a)
Migration Regulations 1994 (Cth), Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
CSO15 v MIBP (2018) 260 FCR 134
FCS17 v MHA [2020] FCAFC 68
Fox v Percy (2003) 214 CLR 118
MIMAC v SZRHU [2013] FCAFC 91
Suntharajah v MIMA [2001] FCA 1391
SZRTC v MIBP [2014] FCAFC 43
WAGH v MIMIA (2003) 131 FCR 269

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. The applicant is a [age]-year-old man who was born in [Refugee Camp 1] in [Country 1] in [Year 1], where his family was living at the time. His family, who were originally from Sudan, moved from [Country 1] to [Refugee Camp 2] in [Country 2] in [Year 2].

  2. The applicant arrived in Australia [in] February 2006 as a minor dependant on his mother’s [humanitarian visa] and has lived in Australia since.

  3. He visited South Sudan for one month in May 2012 and then returned to Australia.

  4. In 2017 the applicant was granted a Five-Year Resident Return (Subclass 155) visa. This visa was cancelled on 20 February 2019 under s.501(3A) of the Migration Act 1958 (the Act) on the basis that the applicant did not pass the character test set out in the Act. The basis for this decision was that a Court in Australia had convicted the applicant of one or more [specified offences]. The applicant applied for revocation of this decision, which was refused on 4 February 2020. The Administrative Appeals Tribunal differently constituted affirmed that decision [later in] 2020.

  5. The applicant applied for a protection visa under s.65 of the Act on 13 October 2020. A delegate of the Minister for Home Affairs refused to grant the visa on 11 February 2021.

  6. This is a review of that decision. The Tribunal…

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Details
AGLC
2101907 (Refugee) [2021] AATA 1460
Case
[2021] AATA 1460
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a person of Dinka ethnicity from South Sudan. The applicant claimed to fear harm due to his ethnicity, his status as a returnee from a Western country, and the general violence and potential for forced conscription in South Sudan. The court was required to determine whether the applicant met the criteria for a protection visa, including assessing the risk of significant harm upon return to South Sudan, and whether he qualified for complementary protection.

The court considered the applicant's claims in light of country information regarding the widespread security and economic conditions in South Sudan, as well as inter- and intra-ethnic conflict. It examined the applicant's personal circumstances, including his history of displacement, his family ties in Australia, and his lack of close connections in South Sudan. The court also noted the applicant's mental health issues, stemming from his childhood experiences and current detention. The court was required to assess whether the applicant's fear of harm was well-founded, taking into account his Dinka ethnicity and his status as a returnee from a Western country, and whether these factors placed him within a particular social group for the purposes of protection.

The court found that the applicant did not meet the refugee criterion under s.36(2)(a) of the Act. However, it determined that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to South Sudan, the applicant would suffer significant harm, thereby meeting the criteria for complementary protection under s.36(2)(aa). The court remitted the decision to the Tribunal for reconsideration of the visa grant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal has considered evidence provided to the Department and this Tribunal, as well as independent country sources about South Sudan, cited where relevant in the findings. The applicant’s criminal record in Australia referred to later in this decision is not relevant to the question of whether he meets the refugee or complementary protection criteria and has not been considered in this context. The issue of ‘danger to the community’[1] is not before this Tribunal, which in this division does not have jurisdiction in relation to this issue.[1] S. 36(1C)Evidence before the Department The applicant provided information in his protection visa application forms and an interview with the Department on 24 November 2020. A summary of his evidence is set out below.Personal particulars The applicant is of Dinka ethnicity (sub-tribe he called ‘Barhlazel’, referred to in the sources, as Bahr el Ghazal)[2] and is a Christian. He said that his family originates from [Location 1] and [Location 2]. He can speak Dinka, but has problems writing in Dinka, as his school in [Country 2] was conducted in [a local language] and English.[2] Encyclopaedia Britannica, Baḥr al-Ghazāl | river, South Sudan | Britannica His mother, [sisters] and [brothers] live in Australia, as well as a large extended family. He has a close relationship with his brother, [Mr A], who is a qualified [Occupation 1] and works as [an Occupation 2], and who continues to support him. He claims that he has no family in South Sudan. He said that his father was a soldier in Sudan, who passed away in the 1999 in the Second Sudanese civil war. He said that his father was forced to fight for a militia group associated with the Dinka government and it is believed that his father was killed due to his Dinka ethnicity. His family fled Sudan to [Country 1] in [Year 3], where the applicant was born in [Year 1], and then to [Country 2] in [Year 2]. The applicant claimed in his application that he witnessed violence and conflict in Sudan and on his journey to [Country 2]. He said that he was surrounded by extreme poverty and a feeling of hopelessness that he would never leave the camp. The applicant attended [school] in [Country 2] until 2005. The family then travelled to Australia and he attended a number of schools in Tasmania, withdrawing from [year level] as well as a TAFE literacy and numeracy course in 2011. From 2009 to 2010 he volunteered as a performer at community centres, [Organisation 1] and [Organisation 2]. In 2010 he worked as [an Occupation 3] in Launceston for two months. From 2011 to 2012 he was living in Melbourne. In May 2012 he went with his brother to visit his paternal grandmother in South Sudan. After they arrived in Juba, he was running to a bus stop and fell and hurt his knee. He could not go to the village as it involved two to three hours of walking, so he had to stay in Juba with people they knew from camp. He stayed for two weeks while his brother visited his grandmother. The people he stayed with were known to his brother, and he has not kept in touch with them. His grandmother has now passed away. He spoke Dinka while he was there. He said that he was not safe and heard gunshots every night.

Decision

Reasons for decision

At the Department interview the applicant said that he had fallen in with the wrong crowd and was drinking alcohol and wanted to ‘find ways to say sorry’. He said that he had been homeless for a year and had fought with his family.Decision of the Tribunal differently constituted in relation to the refusal to revoke cancellation of the visa, dated [in] 2020 In the applicant’s cancellation matter, the Tribunal differently constituted found that the applicant failed the character test under s.501(3A)(a) of the Act on the basis that he had been convicted of one or more sexually based offences involving a child. In considering whether there were other reasons to revoke the visa, the Tribunal differently constituted examined the applicant’s ‘turbulent and somewhat tragic life’. The Tribunal also summarised his criminal history in Australia. The Tribunal differently constituted noted the incongruity between the applicant’s concerns about returning to Juba and the fact that he did return there in 2012. He told the Tribunal that he stayed with friends whom he had known from the refugee camp and attended hospital and had follow-up visits. He said that he visited the city on one occasion. His brother visited the ancestral village and stayed there for two weeks. He told the Tribunal that he had maintained contact with the friends in Juba on social media. The Tribunal noted that he and his brother had no difficulties travelling to Juba when it was in a more dire position than it is today. The Tribunal differently constituted noted that the applicant’s mother and a sister resided in Melbourne, his older brother and his partner and [children] reside in Perth and he also has another brother and sister as well as [aunts and uncles], and [nieces and nephews].Evidence before this Tribunal The applicant gave evidence at a hearing before the Tribunal on 12 April 2021 by video from [Immigration Detention Centre 2]. The applicant was unrepresented at the hearing. A summary of his evidence follows.Health The applicant confirmed that he suffers from trauma, anxiety and depression. He said that [detention centre 2] is ‘not a good place to be in’, as there is a lot of trauma and depression. He said that his parents fled war in Sudan to go to [Country 1] and then [Country 2]. He grew up in [Country 2] and saw ‘a lot of things that I should not have seen as a child’, which has led to trauma and depression. He said that he is currently taking mirtazapine for depression and anxiety, and some other different medications, including melatonin to help him sleep, and malaria tablets. Legal representation The applicant confirmed that a lawyer helped with his documentation, but the lawyer was unable to represent him at the hearing.Personal particulars The applicant confirmed that his family are Dinka and from the sub-tribe Bahr el Ghazal, named after the region. His family is from [Location 1] and [Location 2] in Bahr el Ghazal. He has extended family living in Bahr el Ghazal and [Town 1] but they are not close, more like ‘people in the same suburb who know each other’. His brother went to visit his grandmother in [Town 1], which is where his paternal grandmother came from. He and his family members are not in touch with extended family. He has no extended family living in Juba. He said that he does not know where he would live if he returned to South Sudan as he does not know anyone in any part of the country. He can speak the Dinka language.

Ratio Decidendi

Legal Principle Established

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 there are 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 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 (the Department), 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.PROTECTION CLAIMS The applicant claims to fear serious harm in South Sudan because of his Dinka ethnicity and as the member of a particular social group of foreigners/returnees from a Western country. He also claims to fear harm by way of forced conscription and general violence in the country.EVIDENCE CONSIDERED BY THIS TRIBUNAL The Tribunal has considered evidence provided to the Department and this Tribunal, as well as independent country sources about South Sudan, cited where relevant in the findings. The applicant’s criminal record in Australia referred to later in this decision is not relevant to the question of whether he meets the refugee or complementary protection criteria and has not been considered in this context. The issue of ‘danger to the community’[1] is not before this Tribunal, which in this division does not have jurisdiction in relation to this issue.[1] S. 36(1C)Evidence before the Department The applicant provided information in his protection visa application forms and an interview with the Department on 24 November 2020. A summary of his evidence is set out below.Personal particulars The applicant is of Dinka ethnicity (sub-tribe he called ‘Barhlazel’, referred to in the sources, as Bahr el Ghazal)[2] and is a Christian. He said that his family originates from [Location 1] and [Location 2]. He can speak Dinka, but has problems writing in Dinka, as his school in [Country 2] was conducted in [a local language] and English.[2] Encyclopaedia Britannica, Baḥr al-Ghazāl | river, South Sudan | Britannica His mother, [sisters] and [brothers] live in Australia, as well as a large extended family. He has a close relationship with his brother, [Mr A], who is a qualified [Occupation 1] and works as [an Occupation 2], and who continues to support him. He claims that he has no family in South Sudan. He said that his father was a soldier in Sudan, who passed away in the 1999 in the Second Sudanese civil war. He said that his father was forced to fight for a militia group associated with the Dinka government and it is believed that his father was killed due to his Dinka ethnicity.