2102207 (Refugee)

2102207 (Refugee) [2023] AATA 4722 (10 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Rebecca Kate Wallace (MARN: 0640179)
CASE NUMBER: 2102207

COUNTRY OF REFERENCE: Sudan
MEMBER:Ann Duffield
DATE:10 November 2023
PLACE OF DECISION: Canberra
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 10 November 2023 at 9:25am

CATCHWORDS
REFUGEE – protection visa – Sudan – imputed political opinion – Justice and Equality Party activist family – Darfuri Movement – race – Salamat tribe – Darfuri – particular social group – returnee from the West – failed asylum seeker – detention – physical assault – inter-ethnic conflict – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Sudan, applied for the visa on 5 August 2020. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant claims to be a citizen of Sudan born in [specified year] ([age] years old). The delegate assessed the applicant’s identity documents and determined that his identity is as claimed. The Tribunal has no information before it to indicate otherwise. Therefore, for the purposes of this assessment the Tribunal is satisfied that the country of return is Sudan.
The applicant provided the Tribunal with a copy of the delegate’s decision along with his application.
The applicant claims to be of Darfuri origins who belongs to the Al-Salamat clan in Southern Darfur. He was born, raised, and educated in Khartoum. He worked illegally in [Country 1] for three years between 2001-2004 before returning to Khartoum and his father’s house. The area in which they lived was full of political activists and there were many protests against the Sudanese government. His late father and elder brother were activists within the Darfuri People’s Movement in the Justice and Equality Party.
His father has passed away, but his mother and siblings left Khartoum and moved to Al Geneina in West Darfur in 2017. His mother subsequently passed away in 2022 from cancer.
The applicant arrived in Australia unlawfully via a boat journey from Indonesia in March 2013. He lodged the application subject to this review in 2017. The delegate refused the application in February 2021.
Protection Claims
The applicant claims that he avoided joining any political movement but fell victim to security raids which targeted activists like his father and brother. Young men were arrested indiscriminately and taken in for interrogation and torture. He was a victim of these several times and the beatings he endured affected him mentally.
The applicant claims his family home remained “under suspicion” and was watched by the security agencies. He was continually harassed along with his father and brother.
In January 2011 the applicant claims that his home was raided, and he was targeted and removed from the house, taken away, interrogated and assaulted. He was accused of participating in the “Darfuri Movement” and the Justice and Equality Party.
In September 2011 he decided to leave Sudan and went to Indonesia where he found work and reassurance. He could not obtain permanent resident.
In March 2013 he travelled to Australia by boat.
He fears returning because he will be singled out and targeted by the NISS for persecution because of his previous activities and arrests. Darfuris, in particular, are being targeted for persecution and he has suffered harm by reason of his ethnicity and race in the past. He cannot relocate to any other area of Sudan because he will be targeted everywhere in Sudan.
Before the Tribunal
The applicant provided the Tribunal with substantial further information and evidence to support his claims in a submission numbering some 231 pages dated 3 November 2023, including a statutory declaration from the applicant dated 1 November 2023, country information and reports from a variety of agencies including Amnesty International, Human Rights Watch and the UNHCR.
In his statutory declaration the applicant states that both his parents have now passed away. His siblings are dispersed across the country with one brother, [Brother A], fighting with a rebel group based in the mountains. He has no close relatives in Khartoum. He is a member of the Al Salamat tribe. This tribe is of African ancestry but predominately Arabic-speakers. The tribe originated from Chad. His family settled in Southern Darfur before relocating to Khartoum and then returning. The Al Salamat tribe have faced increasing issues from both Arab and non-Arab tribes across Sudan but particularly within parts of Darfur where they have been targeted and marginalised. In the recent outbreak of hostilities, the tribe has been the target of ongoing violence by the RSF.
Race and Ethnicity
The applicant claims that because of his mixed Arab-African ancestry and membership of his tribe, he has been the target of discrimination and mistreatment. The perception of him as a “black African” due to his physical appearance makes him a particular target in the context of the current widespread violence and human rights abuses throughout Sudan.
According to country information, the Al Salamat tribe has faced recent targeted violence because of its refusal to align itself or support the RSF. The applicant’s ethnic identity as a Black African and member of the Al Salamat tribe exposes him to significant harm by Arab tribal militias (or members of the RSF supporting them).
Western returnees and failed asylum seeker
The applicant considers that he is a member of a particular social group as set out in section 5L of the Migration Act both as a returnee from the West and a returning failed asylum seeker.
The applicant states that he will be detained and questioned upon return on travel documents (if he was able to return). As a Darfuri he would attract particular attention, especially from the NISS and be imputed with a political opinion as anti-RSF and the Sudanese government. His close family ties with political activists, including his brother may also emerge.
Imputed or actual political opinion
The applicant claimed at his original interview with the delegate that he was a supporter of the JEM and that his family, including his father (now deceased) and his older brother [Brother A] were political activists and members of the JEM. The applicant states that his brother has subsequently fled to the mountains and is fighting with a rebel movement.
The applicant provided an extraordinarily detailed and coherent account of his political association in his submission to the Tribunal, which it accepts as a truthful account, and it is summarised as follows.
The applicant claims that whilst his participation in JEM was indeed limited, he was nevertheless associated with the party particularly through his family. As a result, he and his family were targeted by raids, and he was frequently detained. His appearance as a Black African was also a contributing factor to his persecution. His appearance led to him being associated with the Darfuri rebel movements and he was also targeted by members of the Janjaweed militia and Sudanese security forces, was detained, tortured and beaten.
Whilst he has been in Australia the applicant has continued to oppose the Bashir regime, including the RSF, and has attended gatherings and protests in Sydney and Canberra.
The RSF is a key participant in the violence and is largely in control of Khartoum and actively targeting civilians and those that oppose them, including the Salamat tribe.
Country information
The Tribunal is mindful of the requirement to give weight to the DFAT country reports. However, in the case of Sudan, the previous report published by DFAT was in 2016 and does not wholly assist in the Tribunal’s present deliberation.
According to the United Nations High Commissioner for Refugees (UNHCR), as of 6 May 2023, approximately 123,000 people have departed Sudan and on 9 May 2023, the International Organisation for Migration (IOM) advised 700,000 people have been internally displaced. 860,000 individuals are projected to leave Sudan by October 2023. Sudan displacement doubles in one week, says IOM | UN News
Refugees have crossed into neighbouring countries of South Sudan, Chad, Ethiopia, Egypt and Central African Republic. Khartoum airport is closed, and civilians have struggled to depart the city safely with high demand for transport including buses and cars. Some have fled on foot. Sudan's well-off stuck in limbo at border town en route to Egypt | Reuters Civilians have travelled to the Port of Sudan to escape by boat, where conditions are reportedly deteriorating due to the thousands of displaced persons awaiting evacuation, and lack of supporting services and
In May 2023 the UNHCR has made the following requests of states currently processing refugee applications: Refworld | UNHCR Position on Returns to Sudan
i)On 15 April 2023, fighting broke out between the Sudanese armed forces (SAF), led by Abdelfattah Al Burhan, and the Rapid Support Forces (RSF), a paramilitary force led by Mohamed “Hemedti” Hamdan Dagalo, in multiple cities across the country, including the capital Khartoum.
ii)Hundreds of civilians are reported to have been killed, and thousands injured. The widespread fighting has led to shortages of food, water, medicine, fuel and electricity, and has left civilians without access to essential services. Prior to the eruption of the current conflict, Sudan was already affected by a major humanitarian crisis, with 3.7 million IDPs and 15.8 million people in need of humanitarian assistance, including approximately 11 million people in need of emergency assistance.
iii)Concerns have been expressed about a significant increase in humanitarian needs as a result of the fighting, while humanitarian response operations face major challenges due to the security situation. Despite calls by international and regional actors to end the hostilities, the fighting continues unabated. Large numbers of civilians have been forced to flee areas affected by the fighting, including people who were already internally displaced as a result of previous conflicts in Sudan, and refugees from other countries.
iv)As the situation in Sudan remains fluid and uncertain, UNHCR calls on all countries to allow civilians of all nationalities fleeing Sudan non-discriminatory access to their territories. This applies to Sudanese nationals as well as persons of other nationalities and stateless persons, including persons who are not in possession of passports or other forms of identity documentation. The principle of non-refoulement should be respected at all times. Third country nationals who flee the conflict in Sudan but who are not in need of international protection should be allowed to access safe territory with a view to facilitating their onward travel. UNHCR is stepping up its support to Sudan’s neighbouring countries as they prepare for larger numbers of arrivals.
v)All claims of Sudanese nationals, as well as claims of stateless persons who were habitual residents of Sudan, who apply for international protection should be processed in fair and efficient procedures in accordance with international and regional refugee law. UNHCR considers that persons fleeing the ongoing conflict in Sudan, as well as Sudanese nationals who are outside the country and who cannot return there because of the conflict, are likely to be in need of international refugee protection under Article 1(2) of the 1969 OAU Convention, or under the Cartagena Declaration; or complementary forms of protection including subsidiary protection under Article 15(c) of the EU Qualification Directive.
vi)In addition, persons fleeing the conflict in Sudan or who cannot return because of the conflict may also meet the 1951 Convention criteria for refugee status.
vii)In view of the volatility of the situation in the entire territory of Sudan, UNHCR does not consider it appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative.
viii)As the situation in Sudan is volatile and may remain uncertain for some time to come, UNHCR calls on States to suspend the forcible return of nationals and stateless persons who were habitual residents of Sudan, including those who have already had their asylum claims rejected. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.
ix)In light of the current volatility of the situation in Sudan, UNHCR calls on asylum States to suspend the issuance of negative decisions on applications for international protection by Sudanese nationals or by stateless persons who were former habitual residents of Sudan. The suspension should remain in place until such time as the situation in Sudan has stabilized and reliable information about the security and human rights situation is available to make a full assessment of the need to grant international protection to individual applicants.
In June 2023 the UK Home Office on the situation in Sudan states that, in general:
a.the level of indiscriminate violence in Khartoum and its hinterlands, Darfur and North Kordofan is such a high level to mean that, within the meaning of paragraphs 339C and 339CA(iv) of the Immigration Rules, there are substantial grounds for believing there is a real risk of serious harm to a civilian’s life or person solely by being present in these areas
b.elsewhere the level of indiscriminate violence is not at such a level to mean that there Is a general risk of serious harm to civilian’s life or person solely by being present there
c.Internal relocation to areas where there is not a generalised risk of serious harm may be possible in some circumstances. Country policy and information note: security situation, Sudan, June 2023 (accessible) - GOV.UK (>
In an updated report from the OCHA dated 23 October 2023, six months of war have plunged Sudan into one of the worst humanitarian crises in recent history, with civilian displacement continuing within Sudan and into neighbouring countries. Since fighting between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) erupted in mid-April, an estimated 5.8 million people have fled their homes. Sudan | Situation Reports (unocha.org)
According to the International Organization for Migration Displacement Tracking Matrix (IOM DTM) Snapshot 8,dated October 2023, about 4,633,930 people have been displaced within Sudan and have sought refuge in 4,728 locations across all of Sudan’s 18 states, of whom about 63,400 people were newly displaced over the past week. While IDPs in Sudan were largely concentrated in Darfur, South Kordofan and Blue Nile in 2003 and 2011, after the conflict started on 15 April 2023, IDPs have been registered in all of Sudan’s 18 states. About 1.77 million new IDPs – 38 per cent of the total – are in Darfur, about 1.1 million are in areas south of Khartoum - Aj Jazirah, Blue Nile, Sennar, and White Nile states, close to 1 million are in Northern and River Nile states, about 501,000 are in the eastern states of Kassala, Gedaref and Red Sea. About 256,000 IDPs are in the larger Kordofan region, and 63,600 people are displaced within Khartoum State. IOM reports that those displaced are from eight states, with the majority - about 3.2 million people (69 per cent of all internally displaced) - originally from Khartoum. About 1.16 million people have crossed into neighbouring Central African Republic (CAR), Chad, Egypt, Ethiopia and South Sudan as of 22 October, according to the UN Refugee Agency (UNHCR). Sudan | Situation Reports (unocha.org)
Inter-ethnic violence – Al-Salamat and others (race/ethnicity)

It has been reported in September 2023, that in the Darfur region, the SAF and RSF continued to clash over the control of key towns, such as Nyala and Zalingei where the SAF retains its bases. The region, and South Darfur in particular, experienced escalating tensions and heightened inter-ethnic violence due to disputes over alleged support to the RSF (see map below). This ongoing struggle for dominance coupled with the inter-ethnic dispute, has had a profound and devastating impact on civilians. Clashes between Arab militias were rarely reported before the conflict between the SAF and RSF; however, these militia groups have since been clashing over inter-ethnic disputes. Some indications suggest that implicit allegiance with either side of the conflict has also impacted the violence. Sudan Situation Update: September 2023 | Deadly Reciprocal Offensives for Strategic Locations in Khartoum and Darfur (acleddata.com)
A series of clashes between Arab militias in South Darfur drove another round of escalation of violence during the second week of August. Clashes involving the Salamat, Beni Halba, and Habbaniya communities reignited again after a spate of fighting in June, when tensions rose due to a looting incident between the militias in May. Clashes broke out in Kubbum on 7 August and continued for multiple days, expanding to other locations south of the region. Fighting originally began over a looting incident in Kubbum, where a Salamat militia reportedly looted a Beni Halba leader; as of writing this report, the reasons for this attack are still unclear. Separately, the Salamat tribe refused to announce its support for the RSF amid pledges of allegiance to the RSF from the Beni Halba and other South Darfur communities in July. An estimated 120 people were killed in multiple locations during the clashes, while dozens of people were reportedly wounded, and hundreds were displaced. Militias also looted the Markondi market and obstructed the road between Nyala and Buram. Notably, both Salamat and Beni Halba militias deployed reinforcements from Khartoum, as many of their members are RSF soldiers. The tensions remained high in the area on 18 August as hundreds of Habbaniyah militiamen mobilized in Buram, while large numbers of Salamat forces mobilized in Nadif. Additionally, a considerable number of Masalist militia elements mobilized in the Greida region, indicating the potential for a renewal of clashes and heightened violence. Sudan Situation Update: September 2023 | Deadly Reciprocal Offensives for Strategic Locations in Khartoum and Darfur (acleddata.com)
Failed returning asylum seekers (membership of a particular social group)
A report from CGRS on the treatment of failed Sudanese asylum seekers returning to Sudan indicates, there are two controls upon arrival at Khartoum International Airport (KIA): first by the immigration service and then by the National Intelligence and Security Service (NISS). CGRS quotes information from Waging Peace, an NGO in Sudan, which staties that returnees on emergency travel documents are usually taken away by the NISS since they are immediately identified as rejected asylum applicant, which gives them a political profile.
At page 49 of the report, several sources describe the procedure upon arrival at Khartoum Airport. Passengers first pass through an immigration check, followed by a security check by the intelligence service (NISS), which is strongly present at the airport. The British and other western embassies, as well as UNHCR, IOM, Landinfo and a number of NGOs interviewed by the British-Danish mission, declared that they were not aware of Sudanese returnees having been ill-treated by the Sudanese security services. The British embassy wrote that voluntary or forced returnees, including rejected asylum applicants, do not face a risk upon return. Nevertheless, several sources pointed out that returnees may be held for interrogation. According to the British embassy in Khartoum and IOM, these interrogations do not last long unless the person concerned is a “potential person of interest”. A number of non-governmental and international sources consulted by the CGRS stated however that voluntary or forced returnees, including rejected asylum applicants, are always interrogated by the NISS and, depending on their answers and on circumstances, they are free to go or detained and possibly tortured. The way a returnee is treated also depends on whether the media and civil society are informed of the return and on whether the returnee’s family is informed, according to Sudanese sources. According to IOM, holders of an emergency travel document (ETD) will be questioned more extensively or, according to a number of non-governmental sources, are at risk of being targeted, arrested and detained by the authorities. Persons without a compulsory exit visa will also attract attention upon their return to the airport and may be prosecuted, but not necessarily for political reasons, according to Landinfo. coi_focus_sudan._risk_upon_return_1.pdf (cgrs.be)
Findings and Reasons
The delegate accepted that the applicant’s family had been political activists in Sudan and members of the opposition group JEM, and that the applicant himself had been targeted as a result. The delegate found that the applicant provided credible claims about his experiences and the harm he was subject to in relation to his political associations and his Darfuri ethnicity. They also accepted that the applicant’s family fled Khartoum after the applicant’s father passed away and that he had no family left in Khartoum. The delegate found, however, that the applicant would not be of particular interest to the Sudanese authorities such that he would face a real risk of significant harm if he returned to Sudan.
Well-founded fear of persecution
The Tribunal notes the country information above details significantly changed circumstances in Sudan which make the applicant’s safe and dignified return unachievable. For the following reasons the Tribunal is satisfied that the applicant has a well founded fear of persecution by reason of his ethnicity, his imputed and actual political opinion and his membership of a particular social group. The Tribunal is satisfied that the applicant is a refugee.
In June 2023 the UK Home Office found that: the level of indiscriminate violence in Khartoum and its hinterlands, is such a high level to mean that there are substantial grounds for believing there is a real risk of serious harm to a civilian’s life or person solely by being present in these areas.
The UNHCR also considers that all persons fleeing the ongoing conflict in Sudan, as well as Sudanese nationals who are outside the country and who cannot return there because of the conflict, are likely to be in need of international refugee protection.
The Tribunal notes the UNHCR opinion and acknowledges that whilst the UK law would allow for all persons in Sudan to be considered as eligible for humanitarian protection, by reason of being equally at risk of the generalised and indiscriminate violence, the provisions in Australia’s complementary protection regime do not make such allowances. S36(2B)(c) specifically excludes persons from being found to be at a real risk of suffering significant harm in a country if the Minister is satisfied that the real risk is one faced by the population of the country generally.
Be that as it may, the Tribunal has considered the evidence before it, including the applicant’s claims in the context of recent country information and is satisfied that, should the applicant be forced to return to Sudan either now or in the reasonably foreseeable future, there is a real chance that he will face persecution.
The Tribunal accepts that the applicant would likely be detained and interrogated by the NISS upon arrival. Country information above indicates that rejected asylum applicants are always interrogated by the NISS and, depending on their answers and on circumstances, they may be tortured. Given the ethnicity of the applicant, particularly in the context of current hostilities, such an interrogation would, in the Tribunal’s view, become more likely and more hostile.
During this interrogation it would not be far-fetched to conclude that the applicant’s past detentions and interrogations would be revealed along with his perceived association with JEM (either through his family or individually), his imputed (and actual) anti-RSF views, and that he is a failed retuning asylum seeker with deeply held anti- government views.
The Tribunal accepts the applicant’s account of his, and his family’s involvement in political movements and resistance in the past. The Tribunal accepts the applicant’s claim that his close family ties with former political activists and/or members of rebel movements who opposed the former Bashir regime and his paramilitaries which includes the Janjaweed/RSF who are currently in control of most parts of Khartoum, would bring him to the adverse attention of authorities such that they could seek to cause him significant harm.
The Tribunal also accepts that, in the current environment, the applicant will face increased vulnerability to targeted violence by reason of his ethnicity and distinctive physical appearance. The country information indicates that the current conditions in Sudan involve increased violence and targeting of ethnic minorities, and violent inter-ethnic conflict, including with the Salamat tribe in and around Khartoum and Darfur.
The Tribunal is satisfied that the harm the applicant faces is serious and well-founded and is for the essential and significant reason of his perceived and actual political opinion, membership of a particular social group and his race/ethnicity.

56. The Tribunal is satisfied, in the context of current militarised violence and systematic human rights abuses towards perceived political opponents and ethnic minorities, that the harm the applicant faces would involve systematic and discriminatory conduct.
57. The Tribunal finds that the harm the applicant faces is from the Sudanese regime and its agencies and hence the applicant will not be able to obtain effective protection from those authorities. In view of the volatility of the situation in the entire territory of Sudan, and in line with the UNHCR’s decree, the Tribunal does not consider it appropriate to deny international protection to the applicant on the basis of an internal flight or relocation alternative. The Tribunal therefore finds that the real chance of serious harm faced by the applicant exists in the country as a whole and that safe relocation within Sudan is not reasonably available to him. There is no evidence before the Tribunal that the applicant has a right to live in a third country.
CONCLUSION

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Ann Duffield
Senior 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.
…

[2023] AATA 4722

10 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Statutory Construction