2101907 (Refugee)

[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 must determine whether the applicant meets the refugee or complementary protection criteria set out in the legislation, which are summarised below.

   CRITERIA FOR A PROTECTION VISA

7. 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.

   Refugee criterion

8. 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.

9. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a).

10. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.

    Complementary protection criterion

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. From December 2013 to March 2015 he was in [Prison 1] in South Australia.

23. From March to May 2015 he was in home detention in Adelaide. From May 2015 to September 2015 he was in [Immigration Detention Centre 1]. From [September] 2015 to November 2015 he was in [Immigration Detention Centre 2].

24. From November 2015 to July 2016 he was in [Prison 2] and [Prison 3].

25. From July 2016 to March 2017 he was in [Immigration Detention Centre 2].

26. He said that from March 2017 to 2019 he was in crisis accommodation and ‘couch surfing’ with relatives, before he returned to [Prison 4] and then [Immigration Detention Centre 3].

27. From December 2019 to February 2020 he was in [Prison 5] and then until April 2020 he was in [Prison 3]. From April 2020 to August 2020 he was in [Immigration Detention Centre 3].

28. [In] 2020 this Tribunal differently constituted affirmed the decision not to revoke his cancellation decision.

29. He has been in [Immigration Detention Centre 2] since August 2020.

30. He claimed that he suffers from trauma, anxiety and depression. He said that he had been diagnosed by a psychiatrist, although no medical evidence was provided to the Department.

31. He stated that he fears being imprisoned, tortured and possibly killed by government authorities, rival ethnic groups and armed groups in South Sudan. He said that there is a longstanding war between Nuer and Dinka, and he will be targeted for his ethnicity. He said that he has no-one to protect him. He also fears that he would be mugged or kidnapped as a foreigner or because people think he is not loyal to the South Sudan government. He said that ‘the rival ethnic groups are armed and they torture people when they hear you’re coming from Australia. They kidnap you and torture you or there is a possibility that they will kill you.’ He fears that he will be conscripted as he is fit and healthy and the president is Dinkan. He fears becoming homeless and unemployed.

    Criminal history

32. The applicant has been convicted of a number of offences between 2012 and 2019. The offences include [details deleted]. The records suggest that members of his took a restraining order out against him. A Criminal History Check from the Australian Criminal Intelligence Commission dated 26 March 2019 indicates that the applicant had been convicted in [Court 1] of [an offence]. The applicant was also convicted on [Date 1] in [Court 2] of [an offence]. On [Date 2] the applicant was convicted of sexual assault in [Court 3].

33. In the Department decision in relation to his application for this protection visa, dated 11 February 2021, the delegate quoted a judge in one of his criminal cases who said, ‘I am satisfied that (the applicant) represents a risk to the sexual safety of members of the community. I make that assessment having regard to his previous history of sexual offending and the fact that he committed the offences while on a community corrections order in relation to sexual offending. I make it also on the basis of the material contained on the community corrections assessment which observes that (the applicant), while being assessed for the sex offenders’ program, was found to be at a high risk of further offending. It appears to be a complex matter to deal with given the risk associated with (the applicant) and he is resistant to engagement in rehabilitative treatment from the indications given from his non-compliance with a past community corrections order. The risk exists and is not mitigated adequately.’

34. 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

35. 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.

36. 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.

37. 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.

38. 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

39. 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

40. 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

41. The applicant confirmed that a lawyer helped with his documentation, but the lawyer was unable to represent him at the hearing.

    Personal particulars

42. 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.

43. He was asked what it meant to him to be Dinka. He said that there are traditions. He said that if he sees a ‘Dinka Bor’, he can recognise them as they have special marks on the face and dialects. His tribe is different and do not have markings and their dialect and accent is different.

44. He said that he has been part of a Dinka community in Australia. He has an uncle in Australia who built a school in [Town 2] in South Sudan. The applicant helped him with fundraising. He said that in Australia all South Sudanese tribes are friends – Nuer and Dinka and other ethnicities, and there is no discrimination. He said that ‘everyone is together here in Australia but in South Sudan the ethnicities have problems and there is tribalism’.

45. His family left South Sudan in [Year 3] for [Country 1]. He was born in [Year 1] in a refugee camp in [Country 1]. He left there with his family in around [Year 2] for [Country 2], where he remained until 2006 when he came with his family to Australia.

46. He said that his mother, [sisters] and [brothers] live in Australia, as well as a large extended family including uncles, aunts and cousins. Most of them are in Melbourne. He is in contact with all of his family. His elder brother is [an Occupation 1], his sister is [an Occupation 4], and his younger brother is still in school. His mother is living in Melbourne. He speaks to them all regularly, about once a week. His family members have not travelled back to South Sudan. None of his friends have travelled back either.

47. He said that after he arrived in Australia in 2006 he went to school in Hobart. When he finished school, he went to Melbourne to look for work. He was a performer, [performing] in the community to raise money for a Sudanese school. A few years after that he was charged and convicted with an offence in South Australia after visiting his aunt, and he went to prison. He was in prison in South Australia after visiting his aunt there. After this he was placed in home detention for a few months, then [Immigration Detention Centre 1] then [Immigration Detention Centre 2]. After this he was convicted of other offences in 2015/16 and was in [Prison 2] and [Prison 3]. From July 2016 to March 2017 he was in [Immigration Detention Centre 2] and was then released into the community where he lived for two years, from 2017 to 2019. He said that he was on a community corrections order, and he went to appointments to see if he could find a job. It was difficult as he had been in detention and in prison. His family supported him while he was in prison and detention. From December 2019 to February 2020 he was in [Prison 5] and then until April 2020 he was in [Prison 3]. From April 2020 to August 2020 he was in [Immigration Detention Centre 3] and since then he has been in [Immigration Detention Centre 2].

    The applicant’s fears about returning to South Sudan

48. The applicant said that his biggest fear is that he has ‘nobody there’. He said that all his family are in Australia.

49. He said that people say that South Sudan is stable, but it is not. He said that if he returns he will ‘struggle a lot’. He said that he will have no-one to help him and no-one he can live with. He is concerned about how he will support himself. He said that there is still war going on in South Sudan.

    His return to South Sudan in 2012

50. The applicant was asked by the Tribunal why he went to Juba, South Sudan, in May 2012. He said that at that time, it was his brother who wanted to return to see his grandmother in the village. His brother asked the applicant to go there with him. He said that he was afraid to visit, because there was a war from 2012 to 2013.

51. He said that his brother, who was working in [industry], paid for his trip. They entered South Sudan through Juba Airport. No-one met them there, and they asked for help from people in the airport to find transport. They went to the home of four of his brother’s friends from [Country 2] who were living in Juba. These men were Dinkas, and were not working and he does not know how they supported themselves. He does not know ‘details about them’, as it was his brother who knew them.

1. He said that he did not get to go to the village as he had an accident. He fell in a drain at night‑time in the rain and cut his knee and had to go to hospital. He had stitches in his knee and was given painkillers. Doctors told him to come back later for a follow-up so they could change the dressing. He stayed with the Dinka men for two weeks while his brother was in the village. Asked what he did, he said that he watched soccer on television in the local market. He did not explore the area. Asked if he got to know these friends well, he said that he was only with them for two weeks. He was asked if he has kept in contact with them on social media. He said that his brother was the one close to them. He said that he does ‘see some of them on social media’.

2. He was asked why he returned to South Sudan in 2012 if he claims now that he has a genuine fear of returning to South Sudan. He said that it was his brother who arranged it all and got the tickets and passport. He did not know that he was going then, he thought it would be a year later. He was only told at the last minute that they were going to South Sudan. He said that he did not want to go there.

3. He was asked if he had any problems as a Dinka while visiting. He said that there is always discrimination there. Asked if he had any specific problems, he said that ‘people do not like you because you are from a particular ethnic group’. He said there was always discrimination ‘and other strife’. He said that Dinka Bor do not like Dinka Bahr el Ghazal. He said that when he moved to [Country 2], there was lots of fighting between different groups.

   Dinka

4. He said that he had made a mistake in his application to the Department by saying that he had witnessed violence in Sudan. He said that his parents witnessed violence, and he witnessed violence in the refugee camps.

5. He was asked who he believed would harm him if he returned to South Sudan. He said that there are ethnic groups. He said that the current President is from Dinka Bahr el Ghazal. The opposition leader is from Nuer. He said that there is still conflict there between the two groups. He said that people are targeted for no reason and he may be targeted as he will be coming from Australia. He said people would be asking why his family left and why he had returned. He is concerned about Nuer ethnic groups or the Nuer opposition targeting him.

6. The Tribunal put to him that about 35% of the population in South Sudan is Dinkan, the current President is Dinkan, and DFAT states that Dinka have traditionally dominated South Sudanese society. The next biggest group is the Nuer, at 15.6%, and the remainder are smaller groups.[3] DFAT assesses that there is a low risk of being targeted in Juba because of ethnicity as it is under Dinka control. The Tribunal put to him that he stayed with Dinka people in Juba, and there is no suggestion they have been harmed. The Tribunal asked him why he feared being harmed in light of this information. He said that he would be targeted because he knows no-one and ‘comes from a place like Australia which is rich’. He said that ‘if people are against the government, and you say something against the government, you can get targeted for no reason’. He said that the government at the moment is from ‘our side’ but if ‘you say something wrong, then you can get targeted’. He referred to a Sudanese musician who mentioned the name of the government in a song and he got arrested for no reason.

   [3] Department of Foreign Affairs and Trade, DFAT Country Information Report South Sudan, 5 October 2016

7. It was put to him that he had not claimed involvement with any political or Dinka groups. There would be no reason that rival groups would link him with any political groups. He said that ‘the thing is, who can I go back to?’ He said that he does not know anyone as all his family is in Australia and he will be targeted for no reason.

   Conscription

8. The applicant claimed that he still has a fear of conscription as his father was an army general, and if they found out his family background they might conscript him. He said that there is forced recruitment if the military know that ‘your father was in the army’.

   Unemployment

9. The Tribunal suggested to the applicant that the fact that he has experience in a Western country and can speak English and Dinka could assist him in finding a job, and he could get assistance from his family in Australia and the people he met in Juba. He said that he met the people in Juba through his brother, and his family ‘have issues’ and may not help him forever. He said that he has no family in South Sudan.

   Generalised violence

10. The Tribunal discussed with the applicant the fact that refugee protection and complementary protection may not apply in his case, as he would not be specifically targeted and the risks to him would be the same as for everyone else. He said that he would be specifically targeted as he comes from a different country.

    Moving to country of the East African Community

11. He was asked if he could relocate to one of the countries of the East African Community, or if he had any fears about doing so. He said that he does not really know, but he would not want to go back to Sudan. He said that in South Sudan, they ‘say there is no war but there is’.

    Final comments

12. Asked if he wished to elaborate on anything or say anything further, he said that the Department had refused his visa application on the basis that he was not a refugee, but he had already been found to be a refugee by UNHCR when he was in [Country 1] and [Country 2]. He grew up in refugee camps. He said that it is not true that there would be no harm in South Sudan. He has no family there, and no-one would take care of him. He said that his family is all in Australia. He claimed that there is a chance he will be put in the army and would be targeted for no reason. He said that people told him that returnees from the USA and Australia are being targeted by a particular group. He said that South Sudan is not stable.

    DECISION OF THE DEPARTMENT DATED 11 FEBRUARY 2021

13. The delegate of the Department was not satisfied that the applicant had a political profile which would bring him to the adverse attention of the authorities or rebel groups.The delegate found that forced adult conscription was isolated and not recent or ongoing practice, so would not amount to a real risk of significant harm.

14. The delegate found that there was no real chance of serious harm on the basis of being a returnee in Juba and no real risk of significant harm.

    FINDINGS AND REASONS

    President’s Direction

15. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020. The Tribunal also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:

    ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’.[4]

    [4] At [2.1] (consistent with AAT Act 1975 s.33(1)(b))

16. The Tribunal exercised its discretion to hold the hearing via video due to the COVID‑19 pandemic. The applicant is in a detention centre and it is currently the policy of detention centres not to transfer detainees for hearings. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant, particularly the fact that the applicant is in immigration detention, and that the hearing provided a real opportunity to be heard.

17. The applicant confirmed that he could hear and see the Tribunal Member. The Tribunal was able to interact with the applicant and to maintain line of sight and appropriate communication throughout the proceedings.

    Nationality

18. The applicant does not have a current passport.

19. Section 91N(6) of the Act requires that nationality be determined solely by reference to law of that country. South Sudan became independent in 2011. Under Article 81(a)(b) and Article 8(2)(b) of The Nationality Act 2011 (South Sudan), the applicant became a citizen of South Sudan, as his mother was born in a region now part of South Sudan and he belongs to one of the indigenous ethnic communities of South Sudan. This was confirmed by a Department assessment under s.91P of the Act. That assessment also confirmed that the applicant was not a citizen of [Country 1] or Sudan.

20. The Tribunal is satisfied on the basis of this evidence and law that the applicant is a citizen of South Sudan, and that South Sudan is the receiving country for the purposes of the legislation.

    Findings of fact

    The reasonable approach to fact-finding

21. The Tribunal must make findings of fact in relation to the claims, which involves an assessment of the applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth,[5] and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[6] In the full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the Court observed that it is well‑established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [5] Fox v Percy (2003) 214 CLR 118

    [6] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA (1994) 34 ALD 347, Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

22. The Tribunal is guided by these decisions and commentaries and is mindful of the difficulties faced by refugee applicants, including nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. A person may forget dates, locations, distances, events and personal experiences. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[7] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In this case, as discussed with the applicant, particular consideration was given to the fact that the applicant has had a traumatic childhood, being raised in refugee camps in [Country 1] and [Country 2] prior to arrival in Australia. The Tribunal is also cognisant of the fact that the applicant has been in and out of detention and prison for the last eight years, and the impact that this may have had on his mental state and the ability to give evidence. The Tribunal has also taken into consideration the fact that he did not have legal representation at the hearing, and so it has attempted to assist the applicant where possible in understanding the processes and law.

    [7] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT website, and background

23. The Tribunal accepts that the applicant is a Dinka, as this claim of ethnicity has been made consistently in his various applications. The applicant has confirmed that he speaks Dinka, and that he spoke Dinka while travelling to Juba in 2012.

24. The Tribunal accepts from Departmental records that the applicant’s family fled Sudan in the war and the applicant grew up in refugee camps in [Country 1] and [Country 2], before travelling to Australia with his family on a humanitarian visa.

25. The Tribunal accepts from Departmental records and his oral testimony that the applicant travelled back to Juba in 2012 and stayed in Juba for a month while his brother went to the village.

26. The Tribunal accepts that he has suffered from ‘trauma, anxiety and depression’. Although no medical reports were provided, he is taking mirtazapine, a common medication for depression, and it is not unexpected that a person who has been brought up in refugee camps, been displaced from his homeland, and spent significant periods in detention and prison would suffer from these conditions.

    Does the applicant have a well-founded fear of persecution if he were to return to South Sudan in the reasonably foreseeable future?

27. The next issue for consideration by the Tribunal is whether the applicant has a well‑founded fear of persecution for one of the reasons set out in the legislation (s.5H(1)(a)).

28. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

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

    ·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 above; and

    ·the real chance of persecution relates to all areas of a receiving country.

    Subjective fear

29. Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the judicial interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention. The Tribunal is satisfied that the applicant has a genuine fear of harm for reasons of his ethnicity. He has never lived in South Sudan and has only visited there once, for the period of a month. His family fled Sudan because of war, he has been told that his father died in ethnic conflict and has heard stories of ongoing ethnic violence in the country. As he is so unfamiliar with the environment and has no close family there, the Tribunal is satisfied that he has a genuine fear of serious harm. Although he travelled to Juba in 2012, which does indicate that he was not afraid to travel there for a short time, it is a different proposition to be living in a country, and the Tribunal is satisfied that he has a genuine fear of settling in South Sudan.

    Real chance of persecution

30. For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

31. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J that Parliament intended that this same threshold be used to assess claims under s.5J.

    Assessment of real chance of serious harm against the area of the country in which the applicant will return or be returned

32. The real chance of persecution must relate to all areas of a country.[8] The starting point for assessment of the chance of an applicant being persecuted will depend upon the case put by the applicant, but will generally commence with consideration of whether there is a real chance of persecution in the area of the receiving country in which they will return or be returned.[9]

    [8] Section 5J of the Act

    [9] CSO15 v MIBP (2018) 260 FCR 134

33. This assessment is difficult in this case as the applicant has not lived in the country and does not have certainty as to where he would return. He has no family in Juba, where the airport is. He has spoken of having extended family, whom he does not know, in the Bahr el Ghazal region. Part of his extended family is in [Location 1] and [Location 2], and part of his family is in [Town 1] in Warrap. [Town 1] is where his grandmother lived, and the place his brother visited in 2012. In light of the decision in CSO15 v MIBP (2018) 260 FCR 134, which requires that the Tribunal consider the area to which the applicant would return or be returned, the Tribunal has assessed whether the applicant would have a real chance of persecution in the Bahr el Ghazal region, either [Location 1] or [Location 2], or [Town 1], Warrap, where his family comes from. As the applicant has not lived in South Sudan, it is reasonable to assume that it is likely he would return to these areas of Bahr el Ghazal as he has some community connections there and they are Dinka areas.[10] He spoke of ‘family’ there as a broad community of neighbours, who know each other. Although he has not lived there, people may well know his extended family so that he may find some community support, which would not be the case in Juba.

    [10] OCHA, Distribution of ethnic groups in South Sudan, 4bea5d622.pdf (refworld.org)

34. The Tribunal is satisfied therefore that it is reasonable to assume that while the applicant would arrive in Juba, he would return to the region where his family has connections, the Bahr el Ghazal regions of [Location 1], [Location 2], in Twic state or [Town 1]. His mother said that her place of birth was village][11], a village in Warrap. The Tribunal has considered first whether there is a real chance of serious harm in these regions.

    [11] Department file for the applicant’s mother

    There is fragile peace in South Sudan

35. In considering whether the applicant would face a real chance of serious harm, the Tribunal has noted that after a very turbulent history, there is fragile peace in South Sudan. The background of this is as follows. In 2013 widespread violence erupted in South Sudan following longstanding political tensions between President Salva Kiir, a Dinka, and former first Vice President Riek Machar. Kiir accused Machar of planning a coup and the violence spread into ethnic conflict with the Dinka supporting Kiir and the Nuer supporting Machar.[12] Security forces, opposition forces, armed militia affiliated with both the government and opposition and civilians committed conflict-related abuses and violations.[13]

    [12] Congressional Research Service, South Sudan, 28 October 2019, United States Department of State, Country Reports on Human Rights Practices South Sudan, 11 March 2020

In August 2015 the Intergovernmental Authority on Development (IGAD) mediated between the parties and this resulted in the signing of the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ACRSS). However, in July 2016 violence broke out again, leading to another two years of conflict.

In August 2018 Kiir and Machar signed a new power-sharing agreement and in September 2018 signed the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ACRSS). Machar was reinstated as Vice President. On 22 February 2020 they agreed to form a unity government and Kiir declared the war ‘officially over’ and asked for forgiveness from Machar who agreed to work in partnership.[14] It was agreed to disarm all armed forces and unify the military and police forces.[15]

[14] International Crisis Group, A major step towards ending South Sudan’s Civil war, 25 February 2020

[15] CIA World Factbook, South Sudan, 30 June 2020

Since the signing of the peace agreement, there has been a reduction in levels of violence in South Sudan.[16]

[16] Security Council Report, December 2019 monthly forecast – South Sudan, 27 November 2019; AP News, UN Welcomes encouraging peace developments in South Sudan,12 March 2020, United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021

1. Asked to comment on the peace agreement in South Sudan, the applicant said that ‘they always say that there is peace in South Sudan’, but it is ‘only for the media’. He said that from what he knows, there is no peace in South Sudan. He said that in 2013 they said they were ‘coming for a peace agreement, but they came for war’. He said that there is no peace in South Sudan.

   Does the applicant have a well-founded fear of persecution for reasons of his nationality (Dinka ethnicity) or for imputed political opinion because of his Dinka ethnicity?

2. The applicant has claimed to fear harm on the basis of his Dinka ethnicity from South Sudanese people of Nuer ethnicity, other rival groups and other rival ethnic groups. The Tribunal has also considered whether he would be harmed on the basis of imputed political opinion on account of his Dinka ethnicity as he would be perceived as a person with a pro‑government political opinion, supporting the Dinka government of Salva Kiir or the Sudanese People’s Liberation Movement (SPLM). This could place him at risk from supporters of Riek Machar of the SPLM in opposition (SPLM-IO), who is Nuer, as well as other non-Dinka ethnic groups or other Dinka sub-groups.

3. Notwithstanding the 2020 peace agreement and evidence of reduced violence between ethnic groups, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his Dinka ethnicity and/or imputed political opinion if he were to return to the Bahr el Ghazal region. The reasons for this are set out below.

   Uncertainty that peace will hold

4. Firstly, the peace process is new (2020) and fragile after seven years of war, with interethnic conflicts taking place in many parts of the country. There is no certainty that there will not be increased hostilities in the reasonably foreseeable future, given South Sudan’s volatile history and the fact that there are more than 60 ethnic groups in the country, with a long history of interethnic conflict.[17] While the 2018 R-ACRSS signing has seen overall lower levels of political violence in South Sudan,[18] the slow implementation of the R‑ACRSS has contributed to uncertainty around the peace process. Both ethnic and intercommunal violence continues along with sporadic clashes between the government and opposition forces.[19] One of the concerns for the new government is managing the many armed groups in South Sudan. It is estimated that there are at least 40 different armed groups, often divided along ethnic lines.[20] According to the International Crisis Group, army reform is a huge challenge as is reaching peace deals with insurgencies that did not sign the 2018 agreement, particularly Equatorian rebels led by Thomas Cirillo.[21] Human Rights Watch has said the country is yet to unify the army.[22]

   [17] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021

   [18] UN Welcomes encouraging peace developments in South Sudan,12 March 2020, United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021

   [19] Security Council Report, December 2019: Monthly Forecast – South Sudan, 27 November 2019; United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021; United Nations Human Rights Council, Despite renewed political commitment, staggering levels of violence continued across South Sudan for the second successive year, UN experts note, 19 February 2021

   [20] New York Times, South Sudan Oil Consortium Funded Militias accused of Atrocities, report says, 19 September 2019, International Crisis Group, A major step towards ending South Sudan’s Civil war, 25 February 2020

   [22] Human Rights Watch, 9 years on, South Sudan Still a Nation in waiting, 9 July 2020

An article in the East African in July 2020 states that implementation of R‑ACRSS is progressing but the Sudanese Prime Minister Abdalla Hamdok has called for more international effort and regional support. The article notes the intercommunal violence in Jonglei and parts of Central Equatoria, with observers attributing it to border disputes, the existence of militias who are not part of the peace agreement and the fear of losing weapons.[23]

[23] East African – Kenya, South Sudan peace building on track, Igad told, 15 July 2020, >

The US State Department’s Country Report for 2020 states that inter-ethnic fighting and violence by government, opposition forces, and armed militias affiliated with the government and the opposition targeting specific ethnic groups resulted in human rights abuses.[24] The Report goes on to state that inflammatory rhetoric – including hate speech – and discriminatory government policies led to a heightened sense of tribal identity, exacerbating interethnic differences.[25] On 9 July 2020, Kiir acknowledged that intercommunal fighting ‘threatens to rip the country apart.[26]

On 14 August 2020 the Commission of Human Rights in Sudan noted escalation of violence in six of the ten states of South Sudan. The Commission remained concerned at the lack of accountability for incidents of intercommunal violence, including an absence of prosecutions. It referred to the armed conflict being transformed into a ‘series of localised conflicts’, often presented ‘simply as cattle raiding’ but ‘increasingly politicised with many groups operating as organised militias under the control of the main parties to the conflict’.[27]

The UN reported that 658 people were killed in intercommunal violence in the first three months of 2020.[28] Despite the unity government formed in February 2020, there are concerns about military reorganisation given that both sides have been at war for seven years.[29] USAID also reported on an increase in intercommunal violence in 2020 throughout South Sudan, with nearly 1,800 people killed between January and March.[30] Human Rights Watch has also expressed concern at the fact that four million people remain displaced, with continuing intercommunal fighting and conflict between government and rebel groups, with civilians being killed, maimed and forced to leave their homes.[31]

The head of the United Nations Mission in South Sudan reported to the Security Council in September 2020 that while the Transitional Government of National Unity continues to function, there are a number of political and security challenges, with progress ‘painfully slow’.[32] He reported on an upturn in subnational conflict stemming from splintering between and within groups, with external political actors fuelling these local conflicts with military advice and heavy weapons.  He reported that from January to July, UNMISS documented 575 incidents of subnational conflict – an increase of 300 per cent compared to the same period in 2019.[33]

A recent article suggests that ‘South Sudan’s contemporary history suggests that conflict could erupt anytime due to the tense and uptight military balance in the capital’.[34] The author points out that Machar has twice had to flee the capital in the past after peace deals had been struck. Machar has asked for a strong military force in the capital to guarantee his safety, which has been agreed, but the government has refused to withdraw its soldiers. The balance of power is ‘tentative’, with any alteration ‘causing the conflict to re-ignite’.[35] The UNHCR said in 2019 that ‘the overall security, rule of law and human rights situation in South Sudan remains highly volatile … in such a situation persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugees Convention’. The report also states that ‘sustainable conditions are not in place for the safe and dignified return of refugees and IDP’s in South Sudan’.[36]

[24] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021

[25] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021

[26] VOA News, South Sudan President admits Inter-Communal fighting threatens country, 9July 2020, United Nations Human Rights Office of the High Commissioner, Renewed violence and delayed implementation of the peace agreement threaten peace and stability in South Sudan, UN experts note, 14 August 2020

[28] Aljazeera, South Sudan leaders reach key deal on control of states, 18 June 2020, Haughton, S, South Sudan: despite peace deal, stability is a far cry, Global Risk Insights, March 2020, USAID, South Sudan – Crisis Fact Sheet, number 8, Fiscal year 2020, 3 July 2020

[31] Human Rights Watch, 9 years on, South Sudan Still a Nation in Waiting, Nyagoah Tut Pur, 9 July 2020

[32] United Nations Security Council, September 2020, Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council, United Nations Security Council, September 2020, Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council, Haughton, S, South Sudan: despite peace deal, stability is a far cry, Global Risk Insights, March 2020, Haughton, S, South Sudan: despite peace deal, stability is a far cry, Global Risk Insights, March 2020, UNHCR, Handbook on Criteria and Procedures for Determining Refugee Status, South Sudan, Position on Returns To Sudan, April 2019

100.   A reading of this information as a whole indicates that while the power-sharing arrangement has resulted in some successes and an overall reduction in violence, there are many challenges, with most commentators referring to the peace as precarious. There are also many recent examples of interethnic violence, with Kiir himself expressing concern about the future.[37]

There is a long history of targeting by opposition groups of Dinka people on the basis of ethnicity and imputed political opinion

[37] VOA News, South Sudan President admits Inter-Communal fighting threatens country, 9 July 2020,  Secondly, numerous sources including DFAT confirm that the Dinka people have long been targeted by a number of opposition groups on the basis of imputed political opinion in favour of Kiir and his SPLM, and that this targeting continues despite the peace process.

102.   The Dinka make up about 35.8% of the population of South Sudan.[38] The Department of Foreign Affairs and Trade in its 2016 report stated:

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 … 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.[39]

[38] Department of Foreign Affairs and Trade, South Sudan – Country Information Report, 5 October 2016

[39] Department of Foreign Affairs and Trade, South Sudan – Country Information Report, 5 October 2016

103.   DFAT refers to the Transitional Constitution of the Republic of South Sudan which states that all ethnic and cultural communities have the right to freely enjoy and develop their cultures and practise their beliefs and customs. However, according to the DFAT Report, South Sudan remains a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence.[40] DFAT states that credible 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.[41]

[40] Department of Foreign Affairs and Trade, South Sudan – Country Information Report, 5 October 2016

[41] Department of Foreign Affairs and Trade, South Sudan – Country Information Report, 5 October 2016

104.   DFAT reports that 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.[42]

[42] Department of Foreign Affairs and Trade, South Sudan – Country Information Report, 5 October 2016

105.   While the DFAT Report is somewhat outdated, it does suggest that as recently as 2016, there was extensive targeting of Dinka civilians for violence on the basis of imputed political opinion and that ethnicity and political opinion are intertwined. More recently, in February 2019, the UN Commission of Human Rights in South Sudan reported on a pattern of deliberately targeting civilians based on ethnic identity.[43] In its 2018 report, the UN Human Rights Council said that SPLA, both factions of SPLA-IO and affiliated armed groups have committed serious violations of human rights and international humanitarian law. These violations included deliberate targeting of the civilian population and individual civilians, including on the basis of their perceived political or ethnic affiliation and by means of killings, abductions, rape and sexual violence and the looting and destruction of villages.[44]

[43] United States Department of State, Country Reports on Human Rights Practices South Sudan, 11 March 2020

[44] Haughton, S, South Sudan: despite peace deal, stability is a far cry, Global Risk Insights, March 2020,  Amnesty International has also reported in 2019 that civilians have ‘borne the brunt of the violence. At least tens of thousands of people have been killed, often based on their ethnicity or perceived affiliations since December 2013.’[45] Amnesty stated in 2019 that this human rights situation ‘remained precarious’.[46]

[45] Amnesty International, Do you think we will prosecute ourselves?, No prospects for accountability in South Sudan, 7 October 2019

[46] Amnesty International, Do you think we will prosecute ourselves?, No prospects for accountability in South Sudan, 7 October 2019

107.   The United Nations Commissioner for Human Rights in 2018 documented that abuses based on ethnicity referred to the ethnic dimension of the conflict as a battle of them against us, for land, resources and control.[47] The United Nations Advisor on Genocide found that South Sudan displayed a strong risk of violence on ethnic grounds and reported on targeted killings of members of particular ethnic groups, individuals or communities on the basis of perceived political affiliation.[48]

[47] OHCHR, Report of the Commissioner for Human Rights for South Sudan, 2018

[48] Adama Dieng, United Nations Special Advisor on the Prevention of Genocide, Media Briefing, 11 November 2016

108. There has been fighting in 2020 in Jonglei between Dinka and other communities,[49] and in Lakes state.[50] Since June 2016 there has also been conflict between Dinkas and others in the Equatorias.[51] The UN warned about this conflict in 2016 referring to rising tensions with the Dinkas, and ethnic rhetoric, hate speech and outright incitement to violence between the two groups.[52]

[49] United Nations Mission in South Sudan, Escalating intercommunal conflict could unravel the peace agreement, 9 June 2020

[50] Radio Tmazuj, 10 killed in revenge attacks in Western Lakes, 21 July 2019, ACAPS, Widespread Conflict between Dinka and non-Dinka in the Equatorias, 16 March 2017, Daily Nation – Kenya, UN sounds alarm over South Sudan ethnic strife, 26 October 2016,  Many sources refer to the inability of state protection for civilians.[53] The Commission on Human Rights in South Sudan has said that pervasive impunity remains the norm.[54]

[53] See for example, United States Department of State, Country Reports on Human Rights Practices South Sudan, 11 March 2020

[54] United Nations Human Rights Council, Report of the Commission on Human Rights in South Sudan, 13 March 2018

110.   The United Nations Human Rights Council in February 2021 referred to the findings by the Commission on Human Rights in South Sudan, that 10 years after independence there are ‘staggering levels of violence’ with more than 75% of the country engulfed in brutal violence.[55] The Report refers to an intensification of attacks against the civilian population along ethnic lines with almost no accountability.[56] The Report states that ‘localised conflict also continued to pose a massive risk to stability in South Sudan, given the lack of accountability for gross human rights violations and abuses and violations of international humanitarian law. The risk to stability is compounded by weak State structures, including at the subnational level, predatory elites and their competition for political power and economic resources, as well as the failure to manage ethnic divisions and plurality’.