2108056 (Refugee)

[2021] AATA 4645

2108056 (Refugee) [2021] AATA 4645 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2108056

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Jane Marquard

DATE:15 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2021 at 9:29am

CATCHWORDS

REFUGEE – protection visa – Sudan – religion – mixed religious marriage – applicant convicted of manslaughter of his wife – fear of revenge killing – threats to family members – attacks by Muslim extremist groups – recruitment attempts by the Muslim Brotherhood – travel blacklist – detention – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 18B, 25
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424AA, 499, 501CA
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Nagalingam v MILGEA (1992) 38 FCR 191
Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 1827
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v MIAC [2008] FCA 1816
SZTOO v MIBP [2015] FCCA 1631

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 [an age]-year old man originally from Khartoum, Sudan. He applied for a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act) on 5 May 2021. The applicant claims, in summary, that if he returns to Sudan he will be harmed or killed by Muslim extremist groups, government authorities or his wife’s family. A delegate of the Minister for Home Affairs refused to grant the applicant the visa on 17 June 2021. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.

   BACKGROUND

2. The applicant first arrived in Australia [in] October 2008 on a [Partner[visa. On 25 February 2011 he was granted a [permanent partner] visa.

3. [In] 2014 the applicant was convicted of manslaughter of his wife. The crime took place [in] 2012. He was sentenced to [term] imprisonment. He was in [Prison 1] from 2012 to [April] 2021.  On the day of his release from [Prison 1] he was transferred to [Detention Centre 1], where he is living currently.

4. His [Partner] visa was cancelled by the Department of Home Affairs (the Department) under s.501CA(4) of the Act on 1 April 2019. He applied for revocation of this cancellation, but a decision was made not to revoke the cancellation on 18 February 2021.

5. The applicant applied to the Department for a protection visa on 5 May 2021. 

6. On 17 June 2021 a delegate of the Department refused the application for a protection visa.

7. The applicant applied for review of that decision by the Tribunal[1] on 22 June 2021.

   [1] Administrative Appeals Tribunal Act 1975 (Cth), s.25.

8. The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criteria, the applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criteria there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to his or her home country there is a real risk of significant harm.

   FINDINGS

9. For the reasons set out below, the Tribunal has decided to affirm the decision under review.

   SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

10. 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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

11. An applicant must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c) of the Act. 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.

    Refugee criterion

12. Section 36(2)(a) of the Act 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.

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

14. Under s.5J(1) of the Act, 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 must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

15. The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996-97) 190 CLR 225 at [233] (Brennan CJ).

16. 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-5LA of the Act, which are extracted in Attachment A to this decision.

    Complementary protection criterion

17. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, 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) of the Act.

18. 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) of the Act, which are extracted in Attachment A to this decision.

    The applicant must satisfy the statutory elements

19. It is for the applicant to satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [187]). The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act.

20. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination[2], but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836).

    [2] The Act, s.424(1).

    Mandatory considerations

21. In accordance with Ministerial Direction No.84,[3] made under s.499 of the Act, the Tribunal must take account of the 'Refugee Law Guidelines'[4] and 'Complementary Protection Guidelines'[5] 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. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[6]

    [3] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Ministerial Direction No.84, Consideration of Protection Visa applications, 24 June 2019.

    [4] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [5] Department of Home Affairs, Policy – Refugee and humanitarian - Complementary Protection Guidelines

    [6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

    President’s Direction

22. The Tribunal has had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020 and the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.[7] 

    [7] Issued under s.18B of the Administrative Appeals Tribunal Act 1975 (Cth).

23. The Tribunal exercised its discretion to hold the hearing via video due to restrictions necessary because of the COVID-19 pandemic and the applicant’s location at [Detention Centre 2]. The hearing had to be rescheduled on a number of occasions due to interpreter issues and the applicant being in quarantine. 

24. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter, the individual circumstances of the applicant, and, most importantly, that he is in detention. As such, in the interests of justice, the matter should be heard expeditiously. In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical and quick.[8] There may have been significant delay to the matter if the hearing was not to be conducted by video. 

    [8] Administrative Appeals Tribunal Act 1975 (Cth), s.2A.

25. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that he could hear and see, and the Tribunal was able to interact with the applicant and all parties were able to maintain line of sight and appropriate communication throughout the proceedings. The Tribunal is satisfied that the hearing provided a real opportunity to be heard.

    EVIDENCE CONSIDERED IN THIS REVIEW

26. The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, sentencing comments of [Judge A] in the criminal matter before [Court 1], evidence to this Tribunal and independent sources about Sudan. While the sentencing comments in his criminal matter have been considered in regard to information provided to [Court 1] about the applicant’s background, and in regard to credibility (discussed further below), the fact of his criminal conviction is not a factor relevant to whether he meets the criteria for a protection visa (other than in regard to his fear of family members) and has not been taken into consideration in making negative findings in this matter.

    Summary of evidence in Department files

27. The applicant provided details of his claims in an application form to the Department. He also attended an interview with a delegate of the Department on 17 May 2021.

28. A summary of his evidence follows.

29. The applicant was born in [year] in Al Khartoum, Sudan. He lived there until 2008 when he travelled to [Country 1] and later Australia.

30. The applicant’s [wife] , was born in [year] in Sudan. She arrived in Australia in 1995 and acquired Australian citizenship in 1997. She departed Australia in 2003 when she was [age] years old. She married the applicant [in] December 2003. He was [age] years old. They lived in Sudan until 2008. Their son, [named], was born in Sudan in [year], and their daughter [named] was born in Sudan in [year].

31. In April 2008 the applicant and his wife left Sudan for [Country 1], where they resided until October 2008 when they left for Australia. The applicant’s wife sponsored him on a [Partner visa]. Once in Australia they had their third child, [named], born in [year].

32. All their children are Australian citizens. They live with their mother’s family.

33. The applicant’s parents have passed away. He has [specified siblings] in Sudan, [Sibling A] and [Sibling B], and a [cousin] called [Cousin A]. They live in [a named town]. He has a good relationship with them. He said that he had a [Sibling C] who passed away [just] days before his interview with the Department in ‘mysterious circumstances’.

34. The applicant attended high school in Khartoum but did not complete it. He completed a skill/trade course in [a location in] Khartoum [between specified years]. He worked [between specified years] as an [Occupation 1] in Khartoum. After that he was unemployed and got financial support from his family. In Australia he worked as a supervisor at [a named business] in [a named town] from January 2010 to April 2012.

35. In his application forms, the applicant claimed that he left Sudan because of the war and conflict between North and South Sudanese Muslims and Christians. He said that he had married a Christian and was pursued and threatened with death by Islamic groups, such as the Muslim Brotherhood.

36. He claimed that his family did not allow him to live or work and he lived in fear for his family all the time.

37. He claimed that in 2006 he was shot at while with some friends but managed to escape into the bush. He said that he then decided to leave Sudan and go to Australia.

38. He said that he was threatened hundreds of times and faced difficulty getting work or finding a place to live with his family. The applicant did not seek help within Sudan as he was afraid due to the government and the chaos that prevailed in the country. The applicant stated that some groups have spies working in the government and he did not know who to speak to or trust. He claimed that the authorities ‘do not assist with revenge problems and they will deliver’ the applicant to his wife’s family.

39. He said that he could not relocate as it was ‘the same everywhere’. He states that the minute he enters Sudan, ‘many people will know’.

40. The applicant said that he has not told [some siblings] about what happened with his wife and they do not know she is dead, although other family members do. He said that he told them that ‘a problem happened between me and my wife and it was about children and other things. Then she attacked me. I defended myself’. He claimed that ‘his life is in great danger’ because of the family of his deceased wife. Her family have been threatening the applicant’s family. He claimed that they want revenge for their daughter’s death and promise the applicant’s family in Sudan that they will kill the applicant if he returns to Sudan. He said that they have asked for the date of return.

41. The applicant suggested that the Muslim Brotherhood would torture him and kill him as they think he is a traitor and wish to use him as an example for men who marry non-Muslim women.

42. The Department asked the applicant why he could not move to areas such as Omdurman, Gedaref or Port Sudan. The applicant claimed that he does not have any documentation and cannot obtain it as the government is corrupt. He said that he attempted to relocate but the ‘spies in the government’ could find him. He said that he spoke to a relative who told him that news of his release from prison had already reached Sudan and people were ‘watching and waiting’ for his return.

43. He said in his Department interview that in Sudan he was always on the run as ‘they’ were ‘after him’ and people ‘used to come and search my place’. He said that he was arrested without knowing why. He said that the Islamic Front wanted him to join them. He said that they have not asked anyone from his family, and he does not know why they want him. He said that he cannot say no to them. He said that once they pulled out a pistol when he said that he did not want to join them. He said that he continuously had to relocate due to the Islamic Front finding him with spies. He said that he owned one house and rented another. He said that this lasted for 10 years.

44. At the Department interview he also claimed that he could not return as his name is on a blacklist for people not allowed to travel, possibly because he worked at [government agencies]. He said that he spoke to some ‘high people in government’ to be removed from the list and then apply for his visa. He said that he spoke to the ‘[Official A]’. He said that he was ‘arrested in the police station’ and ‘they said they would help me or release me’.

45. He also claimed that he could not return to Sudan because of the ‘current situation’ and ‘the guy who is in control’.

46. At the Department interview, he said that his ‘father’s side were against him’ as he did not choose a bride ‘from their side’. He said that they refused to attend the wedding and are not in contact.

47. He said at the Department interview that his family in Sudan know that his wife died, but not the circumstances. He said that he told them that ‘me and my wife had problems, she attacked me and now I’m in gaol’. He said that he had received threats from his late wife’s family who called [Sibling A] then [Sibling C]. He does not know who made the calls as it was from a private number. He said that he advised his [siblings] to relocate, so [Sibling C] moved to [Country 1]. He said that [Sibling A] told him in 2014 not to travel to Sudan as people have said that they will kill him. He said that there had been no repercussions for [Sibling A].

48. The applicant said that since being in prison he is a different person. He did not have a ‘single charge’ in gaol and has done courses on domestic violence.

49. In his response dated 4 June 2021 to a natural justice letter sent by the Department, the applicant said that he was tortured, arbitrarily detained and suffered forced disappearance by the government.

    Decision of the Department dated 1 April 2019 to cancel the applicant’s [permanent] Spouse visa

50. Section 501(3A) of the Act provides for a mandatory cancellation power. The Department was satisfied that the applicant did not pass the character test and therefore his visa was cancelled. The basis for this decision was that the applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more.  Furthermore, the applicant was serving a sentence of imprisonment on a fulltime basis in a custodial institution for an offence against a law of a State.

    Sentencing Comments of [Judge A], [Court 1], [case cited]

51. In sentencing the applicant for manslaughter of his wife, the court found the facts of the matter, which were consistent with the findings of the jury were that the applicant had been covertly recording his wife’s conversations prior to her death at the age of [age].  She was in her nightclothes in bed when attacked. According to the sentencing remarks, ‘he brutally attacked’ his wife with a large knife, stabbing her at least [number] times.

1. [Judge A] found that the applicant was an ‘unimpressive witness’. The judge found the provocation to be at the lower end of the scale and the attack to be vicious and brutal and completely excessive. He said that:

   [The applicant gave frequent inconsistent answers, was evasive and resented being challenged. For example, at different times he outlined two contradictory reasons for how he sustained a particular injury. The applicant’s evidence could not be accepted.]

   Summary of evidence before the Tribunal

2. The applicant appeared before the Tribunal by video link from [Detention Centre 2] on 27 August 2021 to give evidence and present arguments relating to the issues arising in relation to the decision under review. An interpreter assisted the Tribunal. The applicant confirmed that he could understand the interpreter clearly and was satisfied with the standard of interpretation. The applicant also confirmed that he could see and hear the Tribunal member well.

3. Some of the evidence before the Tribunal is referred to where relevant in the findings. A brief summary is set out below.

   BACKGROUND AND FAMILY CIRCUMSTANCES

4. The applicant confirmed that he was born, and grew up, in Khartoum. His family is from a mixture of tribes, one from Darfur and the other is called [tribe name] from Sinnar.

5. His father is from Sinnar but grew up in Khartoum. His father was in the army. His mother worked selling food in a stall. His father passed away when he was young and his mother passed away in [year].

6. He confirmed that he had [specified siblings] but one, [Sibling C], passed away recently. His [Sibling A] and [Sibling B] are living together in Khartoum. They are unemployed. One is married [but they only have limited income] because of the ‘difficult situation in Khartoum’. They have children. [Detail deleted].  The other [sibling] is separated. 

7. He has two [siblings] from his father’s second wife, living in Khartoum. [One] runs a shop and the other is not working. The applicant said that prior to incarceration, he was in contact with them regularly and sent them money. Since being in gaol he does not feel like calling them as he feels helpless and cannot help them. However, ‘if someone passed away’ he would call them.

8. The applicant has extended family including uncles, aunts and cousins living in Khartoum. His uncles and aunts are working. Some work as [occupations] and others in a [business]. He is from a Christian and Muslim family. His father came from a strict Muslim family and his mother from a Christian family. When his mother and father married they had no contact with relatives. Relatives on both sides did not want to have anything to do with them. He was asked if he had contact with any of the relatives. He said that he had limited and little contact with them. The Tribunal asked him about a cousin called [Cousin A], mentioned in his Department papers. He said that he is in contact with her, but in a limited way. She lives in Khartoum.

9. He and his siblings were brought up as Muslims. His mother had converted to Islam.  At the same time, his mother’s family are strict Christians. The applicant said that as children they did not attend mosque regularly, although sometimes they did. Asked if he attended an Islamic school he said that the majority of schools were Islamic. He said that he practised Ramadan. They were forced to fast at school. He is still a practising Muslim.

10. He said that he quit school after his father died. His mother went to work and although he was a good student, he left to help his mother at her shop. Later on, he did an apprenticeship course as an [Occupation 1]. He then worked as an [Occupation 1] until he travelled to Australia. Initially he was employed by someone else and then he was self-employed and worked for multiple [government agencies]. After he came to Australia he worked in the [specified] sector as he did not have a licence.

11. Asked if he lived in the family home with his mother and [siblings] until he came to Australia, he said that [these siblings] got married and moved out. He lived with his wife and mother in the same house which was rented. He also owned another house which he sold prior to travelling to Australia. He said he had ‘problems in Sudan’.

12. He met his wife as she was a relative. Her [aunt] was a Muslim although her family was Christian. She left for Australia with her family when she was [age] years old. They started to communicate with each other. She travelled to Sudan in 2003 when she was [age] years old. They married in 2003 in Khartoum. Asked if they had a big wedding, he said they did. About 150 people attended. He said that the people at the wedding were not relatives, they were friends and neighbours. The relatives from both sides did not attend as they did not agree with the wedding. Asked why her family would not have agreed with the wedding if they sent her to Sudan at the age of [age], he said that he has no idea and it was a matter for the family, but perhaps because her [sister] got married at a young age. He said that he had no knowledge of her age as she did not tell him. Asked if her age was required for the marriage certificate, he said that it was, but sometimes the age recorded was not the real age. He said that none of her family members attended the wedding. The only one who attended was her [auntie], [named], and cousins as they were Muslims.

13. He said that his side of the family opposed his marriage as they wanted him to marry ‘from the family’. The Tribunal asked why they would oppose marriage to his wife as she was a relative. He said that both sides of the family ‘did not agree’. His father’s side wanted him to marry a Muslim. He said that his wife converted to Islam before their marriage. He ‘had no knowledge’ what religion she was prior to their marriage, but she converted before they married. His family were opposed even though she converted.

14. Asked if anyone from his side of the family attended the wedding, he said that only the close members from his father’s side attended, but not the ones further away. Asked if his mother, [and siblings] attended, he said that they did attend. He said that he cannot remember who attended as it was a long time ago. Asked if uncles, aunts and cousins attended he said that on his paternal side, they did not.

15. He said that his mother-in-law, [and specified in-laws] live in Australia. His father-in-law returned to Sudan after a marriage breakdown and his mother-in-law remarried. He said that he has no other relatives in Australia. His wife’s father and extended family are living in Sudan. He said that when he lived in Khartoum they did not spend much time with her extended family. He said that he did not know how to describe his relationship with them. He said that he was ‘withdrawn’ from them although he had ‘some kind of relationship’ with some of them. He was asked if it was not difficult for his wife after they married if they did not spend time with her extended family. He said he was not open to talking to them as they did not communicate with him. He said that he was willing to have a good relationship with them, but they did not want to do so.

16. He said that he also felt his mother’s and father’s relatives did not accept him. He said that his mother and sisters agreed with his marriage, but his mother said he was putting himself ‘in the same type of problem once again’.

    REASONS FOR DEPARTURE FROM SUDAN

17. The applicant said that they travelled to [Country 1] in 2008 because he had ‘problems with the Muslim Brothers, who were causing me trouble’. Asked what the trouble was, he said that they were monitoring his movements, ‘especially because my job was for [government agencies] but they did not want me to work there and wanted me to work for them. This made me feel really bad. They often came to my place.’ He said that the first time they contacted him was about 10 to 16 years ago, or in the last year or so before they left Sudan. He knows they approached him in 2007. They were ‘really bad to him’ and threatened him and pointed a gun to his head. They perceived him ‘in a bad way’ because he got married to a Christian, and they felt that he was a traitor to his religion and considered him an apostate. He said that in one instance they shot at him, but he managed to escape. Asked if there were individuals that he personally knew who harassed him, or how he knew that they were from the Brotherhood, he said that you can tell they are a Muslim Brother from the way they are dressed and the cars they drive without number plates.

18. He said that he was first approached to join them 10 years ago, and this happened continuously until the last day before he came to Australia. He was asked why they were trying to recruit him as he was not young at the time. He said that he worked at [one government agency] and had to go through security. When he entered the house, he was a trusted person because he never did anything wrong. He worked in the personal rooms. He said age was not an issue for them. They were interested in him as someone who was trusted by the [government agencies]. He claimed that situation was ‘really bad’ so he decided to leave and sold his house, and moved to a different house. He then said that he moved ‘all over to different places’. The Tribunal put to him that earlier he had told the Tribunal that he lived in Khartoum the whole time he was in Sudan. He said that he meant that he did not live in one place. Asked when he moved, he said that he moved houses almost every year and the maximum he stayed in one house was a year and a half, and he was ‘constantly on the move’. He was asked how he was able to manage his job as an [Occupation 1] if he was constantly on the move and being taken into detention on many occasions. He said that sometimes he was ‘forced to go to work’ as this was his source of income.

19. He said that he did not tell the Muslim Brotherhood he did not want to join them as he was scared, but he just kept ‘negotiating with them in a calm way’. He was asked how many times they asked him to join. He said that it was many years and he felt very threatened ‘because of guns pointing to his head’. He said that they would even come to his house and point guns and he would feel embarrassed because of the neighbours. He said that different people would come. He would be detained for four or five days at a time, and they would just say he was ‘a suspect’. He said that he could not complain to anyone. He said that he was taken into detention seven or eight times. He said that in his job he dealt with people who had important jobs, who had high ranks in the police. He said he could ‘give the names of important people who could get him out of trouble’ but these people would tell him they could not always intervene. These people have now retired or been laid out of the jobs because of ‘the public interest’. Asked why he did not report the shooting to them, he said that it if he conveyed this to them then his life would be at risk.

20. He was asked if he could recall who the leader of the Muslim Brotherhood was at the time. He said that he did not know the name of the leader. He was thinking that he did not ‘want to take a side’.

21. He said that on occasion the Muslim Brothers followed him. He is ‘sure of this’, otherwise they could not have found him. He said that he was shot at in a deserted place leading to the west. They were not robbers intercepting others. He knows that ‘for sure as they did not look like poor thieves’, as they were wearing good clothes.

22. He said that they moved to [Country 1] with an intention to travel to Australia.

    FEAR OF HARM

23. He was asked if he still fears the Muslim Brotherhood if he returns to Sudan. He said that he ‘wants to say one thing. If I ever go to Sudan I swear by Allah I will not go out of Sudan again. I will be trapped from both sides, either the family or the Muslim Brothers would shoot me.’

24. The Tribunal asked the applicant why he did not apply for protection earlier if he fears harm in Sudan. He said that he had permanent residency and did not know about the law.

25. The Tribunal asked him if he wished to add any further evidence or make any additional submissions.  He said that since being in prison he has changed and has done a number of courses. He said that he is sorry for what happened and is very tired. The Tribunal noted that it had been a long hearing and provided him with a week to provide any extra information or submissions if he wished to do so. No further evidence or submissions were provided.

    Independent country information

26. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

    DECISION OF THE DEPARTMENT

27. The delegate of the Department was not satisfied that the applicant would be persecuted by the Muslim Brotherhood or that his name was on a blacklist or that he would be targeted by the government.

28. The delegate accepted that the applicant received verbal threats from his wife’s family in 2014. The delegate was satisfied on basis of country sources that under retributive justice principles under the Criminal Act 1991, Sudan, or ‘qisas’ under Shariah law, he would be subject to payment of diya as compensation. The delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm from his wife’s family.

    FINDINGS AND REASONS OF THIS TRIBUNAL

    Key issues for determination

29. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:

    ·     Whether the incidents he described in Sudan took place, such as targeting by the Muslim Brotherhood or by the authorities (findings of fact).

    ·     Whether there is a real chance of serious harm or a real risk of significant harm from members of the Muslim Brotherhood.

    ·     Whether there is a real chance of serious harm or a real risk of significant harm from the Sudanese authorities.

    ·     Whether there is a real chance of serious harm or a real risk of significant harm from his wife’s family members.

    ·     Whether the applicant could relocate within Sudan.

30. These issues and other threshold issues are discussed below.

    Nationality

31. For the purposes of the refugee criteria, s.5H(1) of the Act refers to a person being outside their country ‘of nationality’. For the purposes of the complementary protection criteria, s.36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

32. The applicant has a passport from Sudan issued in 2008 which expired in 2010. The Tribunal is satisfied on the basis of his passport and testimony that the applicant is a national of Sudan, and that Sudan is the receiving country for the purposes of the legislation.

    Findings of fact

    Taking a reasonable approach to fact-finding

33. When assessing claims the Tribunal must make findings of fact in relation to the claims made, in order to assess whether there is a real chance of serious harm or a real risk of significant harm. In this case, the Tribunal must make findings as to whether the applicant suffered harm from the Muslim Brotherhood or the authorities while in Sudan, and whether his wife’s family did not accept their marriage and threatened him through his [siblings] in 2014/ 2015.

34. The Tribunal recognises that assessment of credibility is an inherently difficult process and that there are special considerations in relation to asylum seekers. The Tribunal also recognises that assessment of credibility can be based on imperfect perceptions of truth.[9]

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

35. As assessment of credibility is a complex task, the Tribunal is assisted by the comments of both the High Court and Federal Court of Australia.[10]  As a threshold principle, 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.

    [10] 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 The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (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.

36. The objective of taking a ‘reasonable approach’ to fact-finding is supported in numerous judgments and commentaries. As Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

37. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

38. The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11] A similar approach is taken in the Department’s Refugee Law Guidelines[12] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[13] which provides useful guidance for this Tribunal.

    [11] SZLVZ v MIAC [2008] FCA 1816 at [25]

    [12] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [13] UNHCR, re-issued February 2019 at [203]–[204]

39. The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, 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, trauma (discussed further below), and/or cultural issues. A person may forget dates, locations, distances, events and personal experiences for a number of reasons.[14] As credibility assessment is not an exact science, great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair. As suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[15] such factors are taken into consideration both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole.

    [14] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website, >

    The Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons,[16] in light of the fact that the applicant was in prison for 10 years and detention for five months since then. Although no medical evidence has been provided, clearly prison and detention can be stressful environments which are likely to have had significant psychological impact on the applicant. The applicant has referred to seeing a ‘psychologist or psychiatrist’, and to medical problems he has, including diabetes, heart problems and high blood pressure. The applicant also referred to the emotional impact of being ‘deprived of his children’ while in prison. He said that they are ‘the most precious thing to him’ and he has not seen them for nine years. He said that his whole life has been turned upside down, and he sleeps with tears in his eyes.

    [16] AAT, Guideline on Vulnerable Persons, available on the AAT Website, type="1">

40. The Tribunal notes that the applicant’s evidence at the Tribunal hearing appeared to be lucid and he was able to answer questions without difficulty. He did not claim to be adversely affected on the day of hearing by any of his medical issues although he said that he sometimes finds it difficult to remember. The Tribunal has taken into consideration the subconscious impact that his psychological and physical state, including separation from his children, may have had on his memory and evidence generally. The Tribunal accepts that his memory may not be perfect and has assessed his evidence accordingly.

    Findings of fact – Muslim Brotherhood

41. The Tribunal is satisfied that the applicant was approached for recruitment by the Muslim Brotherhood. The ‘Muslim Brotherhood’ dominated Sudanese politics and life from 1989 until the overthrow of the Islamic regime in 2019. The Oxford Dictionary of Islam’s entry states:

    Islamic revivalist organization that originated among Sudanese students in Cairo in 1940s. Rejected union with the Egyptian branch, forming an alliance instead with the Sudanese Ansar-Ummah political bloc in support of Sudanese independence. Hassan al-Turabi emerged as its most effective spokesperson in 1964. The Muslim Brotherhood founded the Islamic Charter Front in 1964 to advocate Islamic constitution. The Muslim Brotherhood preferred pragmatism to armed struggle and joined forces with the regime in 1977. Members were appointed to positions in the judiciary and the educational and financial systems, improving organization and finances. Insisted on the foundation of an Islamic state. Supported the implementation of hudud punishments in 1983 as part of an educational process to improve the morals of citizens. Formed the National Islamic Front in 1985 and participated in 1986 elections. Provided support for the regime established by a military coup in 1989 and has since dominated Sudanese politics.[17]  

    [17]  Oxford Dictionary of Islam, Oxford Islamic Studies Online, ‘Muslim Brotherhood in Sudan’, 21 June 2021

42. The Muslim Brotherhood dominated politics in Sudan at the time. It is conceivable, as claimed by the applicant, that they were interested in recruiting him.

43. The Tribunal is not satisfied that the Muslim Brotherhood targeted the applicant for harm on the basis of being married to a Christian or because he refused to join them. The Tribunal is not satisfied that he was threatened, shot at or detained on numerous occasions or that he was placed on a blacklist or moved houses to avoid them. The reasons for this are set out below.

44. Firstly, the applicant’s evidence about the experiences he had with the Brotherhood was inconsistent in the account provided in his application and in the Departmental interview to the extent that the Tribunal was satisfied that the evidence had been fabricated for the purposes of the refugee claim. For example, at the interview with the Department for this protection visa, he claimed that he could not return to Sudan as his name is on a blacklist for people not allowed to travel, possibly because he worked at [government agencies]. At the Tribunal hearing he was asked why he had not mentioned this blacklist in his application form or at the Tribunal. He responded that his name was on a blacklist which he said would have been definitely arranged by the Brotherhood, although he does not know this for certain. He said that he had no criminal record in Sudan, but the Brotherhood wanted to prevent him from going out of the country. Asked how he knew he was on this blacklist, he said that when he took his passport to apply for a visa, he was told his name was on a blacklist. Asked how he was then able to obtain a visa, he said that he went to ‘someone he knew’ who told the authorities that he had no criminal record, and ‘that was when they checked and found nothing’ against him. He said that the Muslim Brotherhood did not want him to go. The Tribunal asked him how he was then able to get a passport and visa and leave the country without any difficulty. He said that they ‘put the obstacles in front of him but they had nothing against me’. He said that he spoke to some ‘high people in government’ to be removed from the list and then apply for his visa. He said that he spoke to [Official A]. He said that he was ‘arrested in the police station’ and ‘they said they would help me or release me’. If the applicant had been on a blacklist, the Tribunal is of the view that this would have been an important element of his evidence, and he would have referred to it in his application and to the Tribunal. It is also difficult to understand how he was able to have consistent work in Sudan if he was on such a blacklist, and how he was able to get a passport and visa and travel without difficulty, given connections at the time between the Brotherhood and the authorities.

45. Furthermore, in his application form for the protection visa the applicant stated that the Muslim Brotherhood wanted to kill him because he married a Christian woman. He did not refer to his fear of being harmed by the Brotherhood because they were trying to recruit him. At his Department interview by contrast, he claimed that the Brotherhood were after him as they had tried to recruit him for many years. He told the Tribunal that the Brotherhood were angry with him for both reasons, because he married a Christian and because they wanted to recruit him. He also told this Tribunal that he was detained seven or eight times and was held for four or five days on each occasion, which is evidence he did not adduce to the Department.

46. At the Tribunal hearing, the Tribunal put the inconsistencies to the applicant under the natural justice provisions in the legislation.[18] He responded that he cannot remember why he did not mention blacklisting or detention earlier, but in regard to the detentions, it may have been that he was not asked questions about it by the Department delegate. The Tribunal is not satisfied that if the Brotherhood were angry about him not joining, and that he had been detained seven or eight times and held for four or five days on each occasion, that he would not have mentioned this in his application and to the Department, as they are central elements of a claim of persecution. He also told the Department that he did not know why the Brotherhood wanted to recruit hm, but he told the Tribunal it was because he had access to [government agencies] where he worked. It is not clear why he would have told the Department that he did not know the reason, when he provided a reason to the Tribunal, which does suggest that his evidence has been provided to bolster his claim.

47. The Tribunal acknowledges that not all memory deficit correlates with lack of truthfulness, as research demonstrates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma,[19] taking into account the applicant’s long time in prison, and separation from his children. Furthermore, although an asylum seeker may lie or exaggerate one part of the evidence, this does not mean it is all untrue. In Guo Wei Rong and Pam Run JuanvMinister for Immigration and Ethnic Affairs and McIllhatton,[20] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:

    Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee.  “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[21]

    [18] The Act, s.424AA.

    [19] H E Cameron, Refugee Status Determinations and the Limits of Memory (2010) International Journal of Refugee Law 469.

    [20](1996) 40 ALD 445.

    [21] Hathaway, J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.

100.   A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:

the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.

101.   The Tribunal is not satisfied however that such significant events as blacklisting and detention on numerous occasions, as well as motivations for harm, would not be consistently recalled, when considering the evidence as whole.[22] It is when considering the significance of the inconsistencies within the context of the evidence in its entirety,[23] discussed further below, that the Tribunal reaches a level of satisfaction that these events did not occur. After considering the evidence, the Tribunal is satisfied that the omissions and inconsistencies are material to the applicant’s claims and lead to an adverse finding of credibility, rather than being instances of exaggeration or yielding to a temptation to embroider. For example, if the applicant had been targeted by the Brotherhood for recruitment, then this is an element of his claims which it is likely he would have mentioned in his application, as at the Tribunal he said it was one of the reasons he was targeted. Further, it is likely he would have referred to the detentions consistently as an important element of his claim of persecution. Although the Tribunal is guided by the principle that the benefit of the doubt should be given to applicants, guidance suggests that this is where the evidence is generally credible,[24] however, in this case the Tribunal is not satisfied that the applicant is generally credible, given the centrality of the inconsistencies to his claims, and his lack of credibility discussed further below.

[22] Chand v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 7 November 1997)

[23] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; AAT, Guidelines on the Assessment of Credibility, July 2015, available on the AAT Website, SZLVZ v MIAC [2008] FCA 1816; UNHCR, re-issued February 2019 at [203]–[204]

102.   A second consideration in reaching a finding that the applicant was not targeted for harm by the Brotherhood, when considering his inconsistencies in evidence, was that His Honour [Judge A] has indicated that the applicant has a propensity to provide different accounts of evidence. In the sentencing comments on his criminal trial, [Judge A] stated as follows:

[The applicant was not an impressive witness, gave inconsistent answers, was evasive and resented being challenged. For example, at different times he outlined two contradictory reasons for how he sustained a particular injury. The applicant’s evidence could not be accepted.]

103.   The Tribunal put these comments to the applicant at the Tribunal hearing for comment pursuant to the natural justice provisions, noting that they suggest a propensity to produce different accounts of evidence as needed, which may lead the Tribunal to conclude that the evidence adduced to the Tribunal is not true and accurate. The applicant responded that ‘at the end of the day, the truth remains to be the truth.’ He said that he is only human and can make mistakes. He said that he can remember certain things and not others. He said that he is ‘not a computer’ and ‘sometimes forgets details’.

104.   The Tribunal does not have the full transcript of the trial before it but notes that [Judge A] concluded that the applicant provided different accounts of the evidence and was an unimpressive witness. The applicant told the Tribunal that he did not have a ‘single charge’ in gaol and has done courses on domestic violence. The Tribunal accepts that he may have made some positive changes in his life, but notes that before this Tribunal as well, different accounts have been provided as discussed earlier. An example of the applicant providing evidence which was not credible, was him telling the Tribunal that he did not know that his wife was aged [age] when he married her, even though he also told the Tribunal that his wife’s family did not accept the marriage because the other sister had also married young. When asked by the Tribunal if there was a marriage certificate which indicated her date of birth he agreed there was, then said that he was not sure if it was true. While not central evidence in regard to this application for review, this evidence does indicate a propensity to present inaccurate evidence. The Tribunal accepts as claimed by the applicant that memory is generally very imperfect, and people make mistakes, but does not accept that he would forget significant events such as detention, or that he would provide a number of different accounts of evidence, unless he was trying to advance his case, without adhering to the truth of what took place.

105.   Thirdly, the applicant was unable to provide the name of the leader of the Muslim Brotherhood at the time and did not provide the kind of detail about the Brotherhood which would have been expected of a person being targeted by them.  The Tribunal acknowledges that a want of detail where detailed knowledge may be expected, may have psychological explanations, such as lack of concentration or reduced production, caused by many mental disorders.[25] The Tribunal also acknowledges that a decision-maker should be mindful not to impose too high a standard when assessing level of knowledge. However, if the applicant were being troubled by the Brotherhood or the authorities it would be expected that he would recall the leader or provide some detail about the organisation. The Tribunal is entitled to have regard to an applicant’s level of knowledge of matters about which the applicant would reasonably be expected to know if his or her claims were truthful: Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 1827. However, given his lack of knowledge may have been impacted by factors such as the passing of time and psychological trauma, the Tribunal has given this some but not significant weight.

[25] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017

106.   Fourthly, the applicant’s evidence in his application for a spouse visa in Australia suggests that he was living in one place rather than moving around to escape the Brotherhood, and also suggests stability rather than fear of the Brotherhood or isolation from family members. He provided information which suggested that he was living in one place, rather than moving around, and he omitted mention of being on the run because of targeting by the Brotherhood. He said that ‘after the marriage, we lived in our place in Khartoum ... We rent a flat in [a location]’. In his interview with the Department, he said that there were 100 people at his wedding and his wife’s aunt [named], her uncle [named] and uncle [named] attended. His mother, [specified relatives] and friends attended. In his interview for his spouse application the Department delegate asked the applicant why he decided to migrate to Australia. He answered that he had been looking after his mother, but she died in [year] and after that he had no reason to stay in Sudan and all of his wife’s relatives were living in Australia.

107.   At the Tribunal hearing, the Tribunal put to him under the natural justice provisions that there was no suggestion in his spouse application that family members did not attend the wedding or that they disapproved of the marriage as he had suggested at the Tribunal. Further, there was no suggestion that he was constantly moving houses to escape the Brotherhood and he did not mention being targeted by them. He did not refer to problems with the Muslim Brotherhood or being on the run for 10 years or being detained regularly. At the Tribunal hearing, the Tribunal suggested to him that these may have been matters he would have raised if in fact they had happened.

108.   The applicant responded that he meant that approximately 100 people attended his wedding. In regard to the auntie who attended, he said one auntie agreed to the marriage. The wedding was at her house. He said that the people who came to the wedding were all Muslims. He said that he had contact with some of the family but not all of them. He said that it is perhaps 16 years since he has had contact with some of them. He has now spent nine years in gaol and his memory is not that good. He said that he married his wife and they had an apartment. He spent all the money he had and took care of her. He said that when he left Sudan he left with ‘lots of problems and did not want to leave documents which would cause him to stay’. He said that he did not bring any documents and wanted to put all his troubles behind him. He said that in [another country] the Muslim Brotherhood’s problems still were going on. He was still scared in [that country] that they would find him. He felt safe in Australia.

109.   The Tribunal accepts that memory is fallible and over time people forget matters such as dates and locations. The Tribunal is not concerned that the numbers he provided for wedding guests were different. The Tribunal accepts that they may have had poor relationships with some family members. However, the applicant’s response does not explain why he would not have told the Department during his spouse visa application that he had troubles with family members or the Muslim Brotherhood in Sudan, or that he moved around constantly. The evidence in his spouse application suggests that he lived in one place. This evidence is consistent with personal particulars provided to the Tribunal about his address and the fact that he had stable employment in Sudan. Furthermore, his evidence to the Department during his spouse application suggests that he and his wife travelled to Australia to join his wife’s family after the death of his mother in Sudan, rather than due to fear of harm from the Brotherhood.

110.   Fifthly, [Judge A] in the Sentencing Remarks in his criminal trial provided a summary of the applicant’s background in Sudan, which presumably was provided by the applicant, or through health or legal professionals, which also indicated a stable environment in Sudan. [Judge A] stated: ‘he grew up in the Sudan in what seems to have been a loving family. He left school at [age] to work and help support his family. He worked in the Sudan as an [Occupation 1]. Although his work occasionally took him to the areas of conflict, he lived away from these areas, and generally stayed away from war zones. He lived in an area which was relatively safe. He was good at his work and made friends with some of his customers … with the exception of the conflict within his marital relationship and his inability to get along with his wife’s family, he seems to have had a relatively normal life.’

111.   The Tribunal put this information to the applicant pursuant to the natural justice provisions in the legislation, indicating that he had been legally represented at the time of his criminal trial, and he had provided to the court information which suggested that he had a fairly safe life in Sudan living in a relatively safe area with a good job, without any major problems. The Tribunal put to him that as he had provided a different version of events to the Tribunal this may suggest that he had bolstered his evidence to support a refugee claim.

112.   The applicant responded that ‘for me, my life after I arrived in Australia, the past is a dark era in my life, a black page, and I turned it over, and I wanted to forget it. It did not occur to me that I would have to talk about that again’. He said that it was daunting for him to talk about matters in the past. He said it is like seeing someone smiling but inside they are in pain. The Tribunal acknowledges that it may be difficult for the applicant to talk about his past, however, as he was legally represented, it would have been reasonable for him to tell [Court 1] about difficulties in his past in relation to mitigation of sentence. For example, it would have been of relevance that he was shot at, that he was detained on a number of occasions, or that he was threatened so had to move around constantly. The Tribunal does not have the full transcript before it so has given some but not significant weight to this factor, when considered alongside the other evidence, in finding that the applicant was not targeted for harm while living in Sudan.

113.   In regard to decision-making generally, researchers have provided useful insight into subconscious influences on credibility findings. Research in Canada found that refugee decision-makers have unreasonable expectations of memory, and that ‘decades of psychological research’ has demonstrated that memory is incomplete and changes over time, and that inconsistencies in testimony should not be used ‘mechanically’.[26] The Tribunal is conscious of not having unreasonable expectations and also that there may be factors that consciously or otherwise influence decisions[27] and that one study found that Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[28]

[26] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010)  International Journal of Refugee Law, Volume 22, Issue 4, 469–511, H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.

[28] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’

114.   While reflecting on this research the Tribunal notes also that it is well established that the Tribunal is not required to accept uncritically claims made by an applicant.[29] Findings on credibility are open to a Tribunal, provided that they are not tainted by unreasonableness or subject to any failure to afford procedural fairness: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83].

[29] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at [451]; MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70

115.   In Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, Kirby J observed:

[I]t is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the ‘real chance’ of persecution required by Chan.

116.   When considering the evidence cumulatively as referred to above, the Tribunal is not satisfied that the applicant suffered any harm from the Muslim Brotherhood or from the authorities in Sudan prior to leaving Sudan. The Tribunal is not satisfied that he was threatened, shot at, detained, arrested or placed on a blacklist. In light of these findings, the Tribunal is also not satisfied that ‘spies in the government’ or others have said that they are awaiting his return.

Findings of fact – threats from wife’s family members in Sudan

117.   The applicant claimed in his interview with the Tribunal that his wife’s family did not accept their marriage. The Tribunal is not satisfied that this was the case. As discussed with him at the Tribunal hearing, his wife’s family permitted and presumably financed her to travel from Australia to Sudan at the age of [age] to marry him. The couple then moved to Australia to be with her family. Furthermore, in his Department evidence he said that they had a big wedding and mentioned numerous relatives from her side who attended. The sentencing remarks of [Judge A] refer to a generally happy and stable life in Sudan. The Tribunal is of the view that he has introduced evidence that his wife’s family did not accept his marriage so as to bolster his claim that they would harm him if he returned to Sudan. The Tribunal does accept that he may have had personality issues with some members of the family, as this is not an unusual occurrence, and he mentioned it in his criminal trial as well as to this Tribunal.

118.   The applicant said in his interview with the Department that he had received threats from his late wife’s family who called his [Sibling A] then [Sibling C]. He said that he did not know who made the calls as it was from a private number. He said that he advised [these siblings] to relocate, so [Sibling C] moved to [Country 1]. He said that [Sibling A] told him in 2014 not to travel to Sudan as people have said that they will kill him.

119.   At the Tribunal hearing the applicant was asked who specifically he fears would inflict revenge on him. He said that ‘all of them of course’. Asked if there were any particular family members he feared, he said that he fears his wife’s father and paternal uncles. He said that these family members do not accept the conviction of the court and believe that the killing was done intentionally. He said that his mother-in-law told him this at the court. Asked what family members had done to suggest they would harm him, he said that they spoke to his [sibling] in Cairo and his other [sibling]. There was a telephone call from a private number. They said that they would take revenge on him and would kill him. He was asked if there was anything in their conduct to indicate that they would carry out these actions, he said that he doesn’t think that they are just talking. He was asked why these family members may be prepared to give up their families and jobs by taking a risk to commit a crime on him. He said that they would.

120.   The applicant has not provided evidence from his [siblings] about the threats made in 2015, and as discussed earlier, is a witness who changes versions of events in order to support self-serving narratives. In light of these factors, the Tribunal has some doubts about whether any threats were made to his [family]. However, giving the applicant the benefit of the doubt, the Tribunal is prepared to accept that threats were made from unknown persons to his [sibling] in 2014/ 2015.

THE REFUGEE CRITERIA

Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

121.   A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.[30]

[30] The Act, s.5H(1).

122.   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.

123.   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.

124.   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) of the Act provides an objective element to that concept;[31] not only must a person fear persecution, there must be a prospect of that fear being realised.

[31] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees

125.   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 of the Act.

126.   The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:

“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[32]

[32] Chan v MIEA (1989) 169 CLR 379 at 397.

127.   The Tribunal has assessed whether there is a real chance of serious harm in the reasonably foreseeable future.[33]

Is there a real chance of serious harm from the Muslim Brotherhood?

[33] SZTOO v MIBP [2015] FCCA 1631 at [27].

128.   The Tribunal is not satisfied that there is a real chance that the applicant would be harmed by members of the Muslim Brotherhood if he returned to Sudan. For reasons set out earlier, the Tribunal is not satisfied that the applicant was targeted by the Brotherhood for harm when living in Sudan. The Tribunal has also taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559: ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ The Tribunal is satisfied that there may have been attempts by the Brotherhood to recruit the applicant but not that he was harmed in any way in the past. The Tribunal is not satisfied that there would be any reason for them to harm him if he returned to Sudan.

129.   Furthermore, there is now a different government and prevailing culture in Sudan, and the power of the Muslim Brotherhood has been reduced such that it would be more difficult for former members to act with impunity. Since former president Omar al-Bashir’s removal from power in April 2019, Sudan – with the support of Egypt – has been working to ‘crack down on the Muslim Brotherhood’ and there are more political freedoms.[34] At the Tribunal hearing country sources regarding the reduced power of the Brotherhood and the new political and religious environment in Sudan, were discussed with the applicant. He was asked if he still has a fear of the Brotherhood or authorities in light of this information. He said ‘believe me, what is happening there is never going to end, there are armed groups everywhere, even in the capital’. He said that the Brotherhood is still ‘everywhere’. He said that the situation would be ‘worse’, the Muslim Brotherhood would try harder to recruit people and would still kill people. He said that current government was not the choice of the people but was forced on them.

[34] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

130.   The Tribunal has considered the applicant’s submissions but is not satisfied that the applicant faces a real chance, one that is non-remote and substantial, from the Muslim Brotherhood in the reasonably foreseeable future. Country sources confirm that there has been a crackdown on the Muslim Brotherhood. This has included the withdrawal of Sudanese nationality from 3,000 foreigners ‘who obtained it during the rule of ousted Sudanese President Omar al-Bashir, including members of the Brotherhood who fled Egypt and other countries’, dismantling the Brotherhood’s control of state institutions, introducing laws to dissolve and confiscate the property of the Brotherhood’s political arm (NCP) and instigating training courses for imams promoting peace and countering extremism.[35] As part of its efforts to dismantle the Brotherhood’s influence over state institutions, the transitional government is reported to have ‘terminate[d] the service of 239 advisers and ambassadors affiliated with the Brotherhood’.[36] At the opening of the training course for imams, which commenced in December 2020, Sudanese Ministers were quoted by media outlets as saying:

The Sudanese government has pursued a policy of openness to the outside world, but the practices of the Sudanese Islamic movement affiliated with the Muslim Brotherhood has led to the isolation of Sudan and its government from many countries as Sudan was added on the list of countries sponsoring terrorism.

[35] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

[36] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

131.   In July 2019, The Arab Weekly reported that ‘Sudan’s transitional authorities are enthusiastic about weakening the Muslim Brotherhood amid fears that the Islamist organisation would emerge victorious from the strife in the country’.[37] The same media outlet proceeded to quote a former Brotherhood member:

Sudan faces a very intricate situation, especially when it comes to the Muslim Brotherhood … The Islamist movement controlled the deep state in Sudan for 30 years under al-Bashir and now they continue to be everywhere inside Sudanese institutions.[38]

[37] The Arab Weekly, ‘Sudan likely to hand over Muslim Brotherhood members to Egypt’, 9 June 2019

[38] The Arab Weekly, ‘Sudan likely to hand over Muslim Brotherhood members to Egypt’, 9 June 2019

132.   The same article notes that Sudan’s transitional government was preparing to deport hundreds of Brotherhood members who had previously fled Egypt.[39]

[39] The Arab Weekly, ‘Sudan likely to hand over Muslim Brotherhood members to Egypt’, 9 June 2019

133.   The Tribunal is not satisfied that the applicant would be recruited by the Brotherhood given their reduced power, and the fact that he has been out of the country for so long. The Tribunal is also not satisfied that the applicant would be targeted by the Brotherhood for marrying a Christian or because he refused to join them in 2008/9. These events took place a long time ago, such that there is unlikely to be interest in him. The Tribunal notes that his wife converted to Islam, and she has now passed away, such that there would be minimal interest in him on this front were he to return. The evidence from his spouse application and from sentencing remarks in his criminal trial suggest that he lived a stable life without any significant problems in Sudan, as discussed earlier.  Furthermore, religious tolerance has improved significantly in Sudan. In September 2019, newly-appointed Prime Minister Abdalla Hamdok declared that his administration would address ‘religious discrimination’, with the minister for religion inviting Jews and Christians who had left the country to return.[40] The Minister proceeded to state that the country was ‘pluralistic in thought, culture, ideology, and religion’ and said that the government would return confiscated properties to Christian churches. He acknowledged that Christians had ‘experienced “persecution” and “very bad practices” during the previous administration’ and told international press that ‘he would fight terrorism, extremism and “takfiri” ideology that calls for those who leave Islam to be punished’.[41]

[40] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Executive Summary

[41] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Executive Summary

134.   This tolerance is also referred to in the United States Department of State (USDOS) international religious freedom report for Sudan published in June 2020, which contains a summary of changes under the transition regime:

On August 17, following the April ouster of President Omar al-Bashir after months of popular protests and a military takeover, the Transitional Military Council (TMC) and the opposition coalition, known as the Forces of Freedom and Change (FFC), signed an interim constitutional declaration that includes several provisions protecting the right to freedom of religious belief and worship “in accordance with the requirements of the law and public order.” It makes no reference to sharia as a source of law, as was the case under the former 2005 constitution. The FFC announced that laws promulgated under the former constitution would remain in effect while the civilian-led transitional government (CLTG) worked to amend or abolish those laws and pass new legislation within the framework of the interim constitutional declaration. Some of the laws and practices established by the Bashir administration were based on its government’s interpretation of a sharia system of jurisprudence, which human rights groups stated did not provide protections for some religious minorities, including minority Muslim groups.[42]

[42] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Executive Summary

135.   More recently, the US Commission on International Religious Freedom reported in April 2021 that ‘Sudan continued to make significant steps toward improved religious freedom conditions in 2020’, citing the adoption of the Fundamental Rights and Freedoms Act and the abolition of the guardianship law requiring women to obtain a permit from a male guardian when travelling abroad with their children as reasons for their assessment.[43]

[43] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2021', 21 April 2021

136.   In its April 2021 World Report, Aid to the Church in Need (ACN) provides positive endorsement for the work of the transitional government regarding religious freedom in Sudan, heralding it as a ‘new era’:

The New Transitional Government of Sudan heralds a new era for religious freedom in the country. The Minister of Religious Affairs and Endowments, Nasredin Mufreh, issued a public apology to Sudanese Christians “for the oppression and harm inflicted on your bodies, the destruction of your temples, the theft of your property, and the unjust arrest and prosecution of your servants and confiscation of church buildings.” At present, the government has officially expressed its intention to re-establish the values of religious coexistence that existed before al-Bashir’s Islamist regime.

Under its new rulers, Sudan declared Christmas a national holiday which it hadn’t been since the secession of South Sudan. Christians marked the occasion by taking to the streets in the capital for a “March for Jesus”, singing and sharing the Gospel message on banners, a tradition outlawed under Bashir’s government.[44]

[44] Aid to the Church in Need (ACN ), Sudan Country Chapter, ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021

137.   On societal relations, the USDOS stated that ‘[i]ndividual Muslims and Christians reported generally good relationships at the societal level and stated that instances of intolerance or discrimination by individuals or nongovernmental entities were generally isolated’.[45]

[45] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Executive Summary.

138.   When considering these sources about the new religious and political environment in Sudan, the Tribunal is not satisfied that there is anything more than a remote chance of harm from the Muslim Brotherhood were the applicant to return to Sudan. The Tribunal is also not satisfied that the applicant faces a real chance of serious harm from the government. The Tribunal is not satisfied that the applicant was put on a blacklist, for reasons mentioned earlier and is not satisfied that he was of any interest to authorities. The applicant has not been involved in political activities while in Sudan, or since, and the Tribunal is satisfied that he would not be involved with political groups or activities if he returned to Sudan. Furthermore, there has also been a change of government since he lived there. Sources indicate that since the change of government there is overall political freedom in Sudan. The UK Home Office Report in 2020 states:

Under the transitional government, groups opposing the government – including students, political parties and civil society – generally have more freedom to operate openly, whilst freedom of assembly and association has generally been respected. Ill-treatment of political opponents have largely ceased under the new government, political prisoners have been released and death sentences against opposition group members have been cancelled. NGOs which were banned under the former regime have now resumed operations. Some sources report the arbitrary arrest of a small number of political activists critical of the security forces, however such reports are much fewer than under the Bashir regime.[46]

[46] UK Home Office, ‘Country Policy and Information Note: Sudan, Opposition to the government, April 2021

Does the applicant face a real chance of serious harm by re-prosecution for criminal offences in Australia?

139.   Although not an issue specifically raised by the applicant, for thoroughness, the Tribunal has considered whether there is a real chance of serious harm by reason of re-prosecution or incarceration.

140.   The Tribunal is not satisfied that the applicant would be re-prosecuted for the crime he committed in Australia. Protection from double jeopardy is enshrined in Sudanese legislation.[47] According to the Penal Code, no person shall be punished in the Sudan for an offence committed outside the Sudan if it is proved that such person was tried outside the Sudan before a court of competent jurisdiction and has served his punishment or was declared innocent by such court.[48]

Is there a real chance of serious harm from the applicant’s wife’s family members?

[47] Penal Code 1991, Government of the Sudan, 1991, s. 6(2); see also Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Sudan’, 27 April 2016, paragraph 5.21

[48] Penal Code 1991, Government of the Sudan, 1991, s.6

141.   The applicant also claims to fear returning to Sudan because his wife’s family will inflict revenge on him as he has been found guilty of her manslaughter in Australia, and family members are not ‘confident of the conviction’, believing he intentionally killed his wife. The Tribunal is not satisfied that there is a real chance of serious harm from family members for the reasons set out below.

142.   The applicant has claimed that his [siblings] received telephone threats from unknown persons in 2014 (Department hearing) or 2015 (Tribunal hearing) in which the callers said that they would kill their brother. The applicant does not know who the callers were. No corroborating statements from his [siblings] have been provided. The Tribunal is not satisfied on this sparse information that the callers were his wife’s former family members, or how serious the threats were, or what was actually said.

143.   In MIEA v Guo (1997) 191 CLR 559, the High Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.

144.   As discussed with the applicant at hearing, six years have passed since the threats were made, and there have been no further threats and no repercussions for his [family] in Sudan. On this basis, the Tribunal is not satisfied that there is a real chance, that is a substantial chance, of family members harming him if he were to return. Other factors relevant to this finding is that no evidence has been provided that these family members have been involved in any criminal conduct, or in fact where they live or why they would be motivated to commit a crime. As discussed earlier, the Tribunal is not satisfied that her family did not accept the marriage, although he did not get on well with all family members. The Tribunal is satisfied that it is mere speculation therefore that family members would harm the applicant if he returned to Sudan, rather than having a substantial basis. Although no doubt his wife’s family members would have been extremely angry with him for killing her, not all individuals use violence in revenge. Further, as set out in some detail in the delegate’s decision record, even if these family members were to apply sharia law, which has been codified, the compensation may be payment of blood money, which has been enacted as possible compensation for crimes such as intentional homicide and semi-intentional homicide.[49] Notably, in 2020, Nasredeen Abdulbari, Sudan’s justice minister announced the end of bans on alcohol and apostasy, and prohibited the use of traditional corporal punishment, which an article in the Washington Post suggests are part of a wider effort to shift Sudan away from traditional sharia, or Islamic law, which has been the basis of law in the country for decades.[50]

[49] J M Otto (ed), ‘Sharia and the National Law in Sudan’ in Sharia Incorporated: A Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past and Present, Jeiden University Press, 2010

[50] Washington Post, 27 August 2020, Islamic law has long been the basis of law in Sudan. - The Washington Post

145.   The applicant has family support in Khartoum and substantial work experience in both Sudan and Australia. It is likely therefore that he will not be destitute should he choose to live in a different part of Sudan or in Khartoum.

146.   Considering these matters cumulatively, the Tribunal is not satisfied that there is a real chance of serious harm from his wife’s family members.

Is the feared persecution for one of the reasons set out in the legislation?

147.   The Tribunal is also not satisfied that the persecution feared from family members is for one or more of the reasons mentioned in s.5J(1)(a) of the Act. These reasons are race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that harm feared from the applicant’s wife’s family members would be harm for one of these reasons. Clearly the harm would be motivated by revenge, a private motivation.

Is harm through civil conflict or crime for one of the reasons set out in the legislation?

148.   The applicant referred during the Tribunal hearing to his fear of crime and lawlessness in Sudan.

149.   Although crime rates are high in Sudan[51] and there is still civil conflict,[52] the Tribunal is not satisfied that criminal conduct or harm from general violence would amount to harm for one of the stated reasons set out in the legislation. Crime is by nature random and non-selective, and the motivations are usually economic or based on the characteristics of the aggressor, rather than for reasons of race, religion, nationality, membership of a particular social group or political opinion. Studies on crime[53] indicate that there are multiple motivations for criminal conduct and that crime is often opportunistic, rather than caused by a desire to inflict harm on a particular group. Indiscriminate violence caused by inter-tribal or political conflicts would not be targeted at the applicant for one of the reasons set out in the legislation. In Chan v MIEA,[54] McHugh J suggested in his reasoning that it was not enough that there be fear of being involved in ‘incidental violence as a result of civil or communal disturbances’. The Tribunal is not satisfied that harm due to civil disturbance or crime would amount to persecution for one of the reasons set out in the legislation.

[51] OSAC, Sudan 2020 Crime and Safety Report, Sudan 2020 Crime & Safety Report (osac.gov)

[52] Human Rights Watch, UN Human Rights Council should continue scrutiny of Sudan, 2 October 2020, US Department of Justice, Agnew, Why Do Criminals Offend?: A General Theory of Crime and Delinquency, 2005, Chan v MIEA (1989) 169 CLR 379

Summary of findings – refugee criteria

150.   The Tribunal has considered the applicant’s claims, individually and cumulatively. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Sudan. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Does the applicant meet the complementary protection criteria?

General principles – complementary protection

151.   If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).

152.   ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

153.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

154.   The Tribunal has not accepted for reasons set out earlier that the applicant was targeted and harmed by the Muslim Brotherhood while living in Sudan. The Tribunal has also not accepted that the applicant’s wife’s family did not accept their marriage, although it has accepted that there may have been some personality problems and the applicant’s [siblings] received telephone threats in 2014/ 2015. For reasons set out earlier, the Tribunal is not satisfied that there is a real chance of serious harm from the Muslim Brotherhood, or from authorities, or from his wife’s family members, were the applicant to return to Sudan in the reasonably foreseeable future. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation from the Muslim Brotherhood or authorities or members of his wife’s family.

155.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. The Tribunal is satisfied that the risk from crime or general lawlessness or civil conflict is a risk faced by the population of the country generally and not by the applicant personally.

Findings on complementary protection

156.   The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sudan there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

157.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

158.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

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

Jane Marquard
Member

ATTACHMENT A  -  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.

…