2117325 (Refugee)

[2022] AATA 4796

2117325 (Refugee) [2022] AATA 4796 (31 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Maria Zarifi

CASE NUMBER:  2117325

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Nathan Goetz

DATE:31 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 31 October 2022 at 10:46am

CATCHWORDS
REFUGEE – protection visa – Sudan – particular social group – mental health issues – alcohol and drug addictions – denial of basic services – ethnicity – Dinka and Nuba tribe – imputed political opinion – anti-government activity due to ethnicity – religion – Muslim in de facto relationship with Christian – interracial children – failed asylum seeker – homelessness if returned to Sudan – denial of capacity to earn a livelihood – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 425(1), 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
EPL20 v Minister [2021] FCAFC 172

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant was represented in the review by an Australian legal practitioner.

   BACKGROUND

3. The applicant identifies as [an age]-year-old male citizen of Sudan. [In] May 2009 the applicant arrived in Australia holding a global humanitarian visa that had been granted on 26 March 2009.

4. On 28 October 2013 the applicant commenced an application to confer citizenship. This was refused on 3 July 2014.

5. On 13 July 2017 a delegate commenced a cancellation of the applicant’s global humanitarian visa on s 501 grounds. This was recorded as ‘case unsubstantiated’ on 16 June 2018.

6. On 28 August 2020 a delegate again commenced a cancellation of the applicant’s global humanitarian visa on s 501 grounds. The visa was cancelled by a delegate on 3 September 2020 and the applicant became an unlawful non-citizen. He was detained in immigration detention on 12 February 2021. As part of the cancellation of the applicant’s global humanitarian visa, the applicant was invited on 3 September 2020 to make representations to the Minister about revoking the cancellation decision. He made no representations.

7. On 8 June 2021 the applicant commenced a protection visa application. This was deemed invalid by a delegate on 10 June 2021.

8. On 11 June 2021 the applicant commenced another protection visa application. This was refused a delegate on 19 November 2021 on the basis that the applicant did not satisfy s 36(2)(a), (aa), (b) or (c) of the Act.

9. As part of the cancellation of the applicant’s global humanitarian visa, the applicant was invited to make representations to the Minister about revoking the cancellation decision. The invitation was reissued on 16 December 2021 as the earlier invitation was invalid because it did not contain the requirements of the Act. The Department records indicate that no decision has been made by the delegate whether to revoke the decision to cancel the global humanitarian visa.

10. On 23 November 2021 the applicant applied to the Tribunal to review the decision to refuse to grant the applicant the protection visa.

11. On 24 December 2021 the Tribunal wrote to the applicant under s 425(1) of the Act and invited him to appear at a Tribunal hearing scheduled to commence at 10:00am on 28 January 2022 so he could give evidence and present arguments related to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a decision favourable to the applicant on the material it had. Later, the Tribunal advised the applicant that the hearing would now occur at 2:00pm on 28 January 2022.

12. On 28 January 2022 and 18 February 2022, the applicant appeared at the Tribunal hearing by audio-visual from an immigration detention centre. The applicant’s representative attended the Tribunal hearing by audio-visual link. The Tribunal hearing was conducted with the assistance of an interpreter in the English and Arabic languages.

    Criteria for a protection visa

13. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

14. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

15. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

16. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

17. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

18. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION

20. The Tribunal considered all the relevant material concerning the protection visa application and the review application, including the evidence and submissions made at the Tribunal hearing. The Tribunal has had regard to the various articles provided in the Court Book.

21. The applicant detailed in his protection visa application form that he was born in [year]. He is now [age] years of age. He was born in Sudan and maintains citizenship of that country. He detailed his ethnicity as Nuba tribe and his religion as Sunni Muslim.

22. He detailed that his mother and father were born in Sudan and are now in Australia as Australian citizens. He is one of [several] children. Three of his siblings are deceased.

23. In his protection visa application form, he detailed his employment history in Australia. His most recent employment was as [an occupation].

24. The applicant detailed that he has a criminal history in Australia. It appears that the applicant’s criminal history, or part of that criminal history, was the basis upon which his previous global humanitarian visa was cancelled. It is unnecessary to specify the applicant’s criminal history in any detail, as the applicant’s criminal history is not relevant to whether the applicant meets s 36(2) (a), (aa) or (b) or (c) for the purpose of this review application.

25. Broadly speaking, the applicant has a criminal history for possessing drugs, contravening apprehended violence orders, drink driving offences, drug driving offences, dangerous driving offences, resisting police, stalking, damaging property and offences of violence. His criminal offending spans appearances in criminal courts from 2012 until 2020.

26. The applicant provided the Tribunal with three folders of material in support of the review application akin to a Court Book. The presentation of the material was of great assistance to the Tribunal as it was ordered, logical, separated evidence from submissions, and provided relevant reports concerning the claims raised. Particularly helpful was the fact that the applicant particularised his protection claims. The applicant did so because the Tribunal made it clear to the applicant that it would only consider the applicant to have raised claims that were particularised, and that a failure to provide particularised claims would demonstrate that the applicant was no longer advancing any other claims (if made). The Tribunal also advised the applicant that it would only consider the evidence that was contained in the Court Book.

27. The claims were particularised (page 9 of the Court Book) as follows:

    ·     The applicant fears harm in Sudan because he is a member of a particular social group, namely a person suffering from severe mental health issues.

    ·     The applicant fears harm in Sudan because he is a member of a particular social group, namely a person who is diagnosed with alcohol and drug addiction.

    ·     The applicant fears harm in Sudan because of his ethnicity/membership of a particular social group, being a person who belongs to the Nuba tribe

    ·     The applicant fears harm in Sudan because of his ethnicity/membership of a particular social group, being a person who belongs to the Dinka tribe

    ·     The applicant fears harm in Sudan because of his imputed anti-government activity by virtue of his Nuba ethnicity or being associated with or perceived to be associated with opposition groups

    ·     The applicant fears harm in Sudan because of his imputed anti-government activity by virtue of his Dinka ethnicity or being associated with or perceived to be associated with opposition groups

    ·     The applicant fears harm in Sudan because of his membership of a particular social group, being a Muslim person who has 3 interracial children born out of wedlock to Christian partners

    ·     The applicant fears harm in Sudan because of his membership of a particular social group, being an apostate or betrayer of Islam for being intimate and fathering three children with Christian women without a lawful bond

    ·     The applicant fears harm in Sudan because of his membership of a particular social group as a failed asylum seeker, with actual and perceived links to a western country

    ·     The applicant fears harm in Sudan because of his membership of a particular social group, being a person who is homeless upon return

    ·     The applicant fears harm Sunday in the form of effective denial of access to basic services (including mental health/drug addiction services) and denial of capacity to earn a livelihood which may cumulatively threaten his capacity to subsist.

28. The applicant did not claim that he met the requirements of s 36(2)(a) or (aa) on the basis of membership of the same family unit as a person who meets either of those requirements and holds a protection visa.

    FINDINGS AND REASONS

29. The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’

30. The Tribunal has considered the applicant’s claims both individually and cumulatively.

31. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    What is the country of reference?

32. The applicant claims that he is a citizen of Sudan. As noted in the delegate decision record, the applicant did not provide documentary evidence of his citizenship and identity. However, the department file contains the applicant’s father’s Republic of Sudan passport, and the applicant was granted the offshore humanitarian visa based on his identity and claimed citizenship. He arrived in Australia and was immigration cleared on that basis.

33. By way of background about Sudan as provided in the 27 April 2016 Country Information Report on that country (at 2.1 to 2.6):

34. “Since gaining independence from the United Kingdom and Egypt in 1956, Sudan has experienced a number of protracted conflicts. Conflict in Sudan has been exacerbated by the intricacies of hundreds of different ethnic and sub-ethnic groups which are often simplistically categorised as Arabs and non-Arabs (or Africans).

35. Sudan’s First Civil War (1955 – 1972) and Second Civil War (1983-2005) were rooted in the North’s economic, political and social domination of the South and led to the deaths of more than 1.5 million people. In 1972, the Addis Ababa Agreement on the Problem of South Sudan established the Southern Sudanese Autonomous Region, ending the First Civil War and leading to a period of relative stability. In 1983, the Southern Sudanese Autonomous Region was abolished by the then President of Sudan, Gaafar Nimeiry, sparking the Second Civil War.

36. The 2002 Machakos Protocol between the Government and its main opposition, the Sudan People’s Liberation Movement (SPLM) / Sudan People’s Liberation Army (SPLA), outlined the process for negotiations that culminated in the 2005 Comprehensive Peace Agreement (CPA), ending the Second Civil War. The CPA included a commitment to hold referendum on the sovereignty of the southern provinces, which occurred in 2011. Following the referendum South Sudan seceded from Sudan.

37. The CPA also included a commitment to hold a referendum on whether the Abyei region should be in Sudan or South Sudan and to conduct popular consultations on the future of Blue Nile and South Kordofan. The commitment has not been implemented. Conflict, particularly in Blue Nile and South Kordofan, continues.

38. Since the mid-1980s, the Darfur region has experienced a number of armed conflicts. Conflict in Darfur has been influenced by historical factors such as Darfur’s relative loss of autonomy following the annexation of Darfur into Sudan by the United Kingdom in 1916, as well as successive Government’s perceived neglect of the region. The International Criminal Court (ICC) has issued two warrants for the arrest of the current President, Omar Hassan Ahmad Al Bashir, after finding that he masterminded and implemented a plan to destroy a substantial par the Fur, Masalit and Zaghawa people on account of their ethnicity. The ICC has accused Al Bashir of five counts of crimes against humanity, two counts of war crimes and three counts of genocide.

39. The humanitarian situation remains bleak with over three million internally displaced people in Sudan and over 600,000 Sudanese refugees in neighbouring countries. Compounding the situation, Sudan has an estimated 375,000 refugees from Ethiopia, Eritrea, Chad, the Central African Republic and South Sudan (arrivals of which have grown given the continued instability within South Sudan).”

40. The Tribunal is satisfied that the country of reference for the purpose of the visa application assessment is Sudan.

41. In the interview with the delegate, the applicant claimed to have been born in Khartoum in [year]. He claimed in his written statement of 23 January 2022 that some point after his birth, his parents returned to [the] Nuba Mountains of South Kordofan State, in Southern Sudan. The applicant claimed that if he was required to return to Sudan, he would live in the Nuba mountains. However, as the applicant immediate family members are not in Sudan, and that the last place the applicant lived while in Sudan was Khartoum, the Tribunal is satisfied that the applicant would live in Khartoum upon his return to Sudan from Australia.

    Is the applicant a credible witness?

42. The Tribunal is not persuaded that the applicant is a credible witness because of the following reasons.

43. Firstly, the applicant delayed applying for a protection visa. The applicant’s global humanitarian visa was cancelled by a delegate on 3 September 2020 resulting in the applicant becoming an unlawful non-citizen. The Tribunal accepts that the notice of 3 September 2020 cancelling the global humanitarian visa was defective per EPL20 v Minister [2021] FCAFC 172 and resulted in the department issuing a subsequent notice. However, as of 3 September 2020 the applicant was not to know that. The Tribunal hearing was told that the applicant had not applied to revoke the cancellation within the 28-day period provided by the notice. No attempts appear to have been made by the applicant to regularise his migration status until 8 June 2021 when he lodged a protection visa application (albeit an invalid one).

44. At the Tribunal hearing, the Tribunal was told that the applicant was handed the 3 September 2020 cancellation notice by hand by a prison guard. It was submitted that the applicant was unable to make representations about revoking the 3 September 2020 cancellation of the global humanitarian visa because he was in criminal detention and had language barriers. The applicant was told that the needed to fill out a form and fax it. The applicant said to the guards that he did not know how to do it. It was suggested to the applicant that he apply for legal aid, but legal aid could not attend the prison because of the COVID-19 restrictions. He suggested that he was being moved within the prison system and had to request legal aid to see him each time he moved prison.

45. There is no evidence that the applicant did anything to regularise his migration status in Australia until around June 2021 when the applicant lodged the protection visa application form with the assistance of his current representatives. It was also his good fortune that in December 2021 due to the invitation to provide reasons to revoke the cancellation of his global humanitarian visa being invalid, the applicant was provided with a further opportunity to make representations to the Minister about why that cancellation should be revoked. However, the fact remains that for all purposes, the global humanitarian visa was cancelled in September 2020 and the applicant did nothing about that for approximately 9 months. The Tribunal accepts that there may be some logistical difficulty attending to paperwork when a person is in prison, however, the applicant had biological family and a de facto partner living in the community during that time. He could have gotten those people to attend to the correspondence of 3 September 2020. He did not do so. The Tribunal really struggles to accept that if the applicant was genuine in his claimed fears of harm returning to Sudan, he would have delayed lodging this protection visa.

1. Second, the applicant gave a very different account to the Tribunal about his travel to Egypt from Sudan. In his statement dated 23 January 2022, he described that:

2. “I was kidnapped and forced to become a child soldier in the Red Army. After we were captured, I and other children were all treated very badly. We would regularly get mistreated and assaulted because they wanted to make us stronger.

3. I remember that while in their captivity, I was hot on my knee with a wooden plank by one of the red army soldiers. My right knee until this day is in pain especially during winter.

4. After around two months in captivity, I found an opportunity one night and escaped the camp. I walked all night until I came across a truck on the road and hitched a ride to Khartoum.

5. Once in Khartoum, I went back to [Town 1] where my family were before I was kidnapped by Red Army. Though my family was no longer in the same place. I looked around for a few days without any luck. So, I then joined other refugee families from Sudan and went to Egypt.

6. In Egypt, after some time, I found a job in [Cairo].

7. It was some three years later that I found my family members in the refugee camp in Egypt.”

8. At the Tribunal hearing, the applicant told the Tribunal that he left Sudan with his family. They were given permission to travel to Egypt. They travelled by train and then by boat three days up the Nile. The applicant said that he and his family had little money, so they all shared the same room on the boat.

9. The Tribunal asked the applicant to address this inconsistency because it suggested that the applicant may have a flexible approach to the truth. The applicant suggested that his travel was organised by his father and that his knowledge of the travel arrangements came from what his father told him. The Tribunal compared for the applicant’s benefit the contents of the written statement to the applicant’s oral evidence to highlight the drastic difference and invited his comment. In response, the applicant attributed this inconsistency to a misunderstanding and a language problem, mental health problems, memory problems and the fact that he was sick.

10. The Tribunal considered that explanation but was not persuaded by it. It was about one month between the applicant’s written statement and his oral evidence to the Tribunal. The Tribunal does not accept that memory problems would result in inconsistent evidence, given the applicant provided two inconsistent accounts about his departure from Egypt. It was not as if the applicant said either to the Tribunal or in his written statement that he could not remember how he departed Sudan for Egypt. Nor does the Tribunal accept that the inconsistency can be put down to any language problem, mental health problem, or fact that ‘the applicant was sick.’ Instead, the Tribunal is satisfied that the inconsistent evidence demonstrates that the applicant is not a witness of truth and that he was prepared to claim whatever he thought would be a more persuasive narrative about his departure from Sudan, and that this changed in the space of one month. The Tribunal is satisfied that this demonstrates a flexible approach to the truth and causes the Tribunal to doubt the applicant’s narrative about his past background in Sudan.

11. Third, the applicant gave inconsistent evidence about where he was born. In his written statement dated 23 January 2021, the applicant claimed that he was born displaced people’s camp in Khartoum, Sudan in [year]. At the Tribunal hearing, the applicant was asked where he was born. He said he was born in [Town 1]. The Tribunal understands that this is in Khartoum. The Tribunal asked whether he was born in a hospital or a house. The applicant said that the family relocated to Khartoum while his mother was pregnant with the applicant. They lived in a small house in [Town 1] and waited for the situation in Kordofan to settle down and his father returned there for his job in the public sector. The applicant described this as a temporary house and owned by a friend of his father.

12. To the Tribunal’s way of thinking, being born in an ‘internally displaced person’s camp’ in Khartoum was very different to being born in a small temporary home owned by a friend of the applicant’s father. In response to the Tribunal’s concern about this inconsistent evidence, the applicant attributed this to an interpretation problem and a misunderstanding of the Tribunal’s question.

13. The Tribunal considered that response and was not persuaded by it. It was about one month between the applicant’s written statement and his oral evidence to the Tribunal. The Tribunal was very specific when asking whether the applicant was born in a house or a hospital. There is no independent evidence of deficiency in the interpretation of the applicant’s evidence at the Tribunal hearing. The Tribunal is satisfied that the inconsistency can be attributed to the fact that the applicant is prepared to fabricate evidence in order to lend credibility to his narrative about his experiences in Sudan and departure from Sudan. This leads to the Tribunal to the conclusion that it should doubt the veracity of the applicant’s narrative about what occurred to him in Sudan and the circumstances of his departure from that country.

14. The Tribunal notes that the applicant provided statements dated 20 September 2021 from the applicant’s mother and father, as well as supplementary statements dated 27 January 2022 from his mother and father. The Tribunal does not give the statements any weight in terms of corroborating the applicant’s claims in light of the concerns that the Tribunal has about the applicant’s credibility. They are not statements from impartial and independent people.

    Ethnicity/Membership of a particular social group, being a person who belongs to Nuba Tribe

    Imputed anti-government political opinion by virtue of Nuba ethnicity or being associated or perceived to be associated with opposition groups

15. It is convenient to deal with these claims together, given that one is an extension of the other.

16. According to the 27 April 2016 DFAT Country Information Report on Sudan (at 3.10 to 3.12):

17. “Nuba is a term used to describe over 50 ethnic groups that inhabit the Nuba Mountains in South Kordofan and Blue Nile and a number an estimated 3.7 million people. The Nuba have traditionally clashed with the pastoralist Arab ethnic group, the Baggara. In the mid-1980s, clashes intensified and became increasingly political with the Government supporting the Baggara-linked militia, the Murahalin. In the early 1990s, the Government intensified its efforts to limit the authority of the Nuba, including through forcibly converting some of the Christian populai Islam. The prominence of Christianity in the Nuba Mountains has added another layer of complexity given the religious divide between the mainly Islamic Sudan and mainly Christian South Sudan. Despite commitments in the CPA, the Nuba population has not been provided with an opportunity to decide whether they identify as being from Sudan or South Sudan and conflict between the Government and SPLM-North has continued to intensify.

18. DFAT assesses that the conflict in South Kordofan and Blue Nile has political, ethnic and religious motivations. In the absence of a negotiated ceasefire with the SPLM-N, the Government has continued to intensify ground and aerial bombardments on rebel-held areas of South Kordofan and Blue Nile which has led to significant harm to the Nuba population. The US Department o States’ Human Rights Report states that between April and May 2015, Government-linked forces burned at least three villages displacing as many as 50,000 people. Those fleeing also reported number unverified civilian executions. In addition, DFAT understands that the Government has prevented Nuba from fleeing to safety.

19. Overall, DFAT assesses that Nuba currently face a high risk of discrimination and violence. Given the actual or perceived association of Nuba with the armed opposition, Nuba are likely to face a high risk of discrimination and violence outside of the Nuba Mountains, including in Khartoum.”

20. The Tribunal notes the applicant’s submission that the Khartoum-based human rights organisation noted that Darfur African tribes, such tribes from the Nuba Mountains were more likely to experience employment discrimination but this does not persuade the Tribunal that the applicant there is systematic and discriminatory conduct in Sudan that would threaten the applicant’s capacity to subsist in Sudan because of this ethnicity.

21. As detailed in the delegate decision, the UK Home Office report of December 2020 provided the following:

22. “The situation during 2020 has broadly maintained…’direction of travel’ towards democracy and the rule of law. For example: the peace agreement with the rebel groups, appointment of civilian state governments, amendments to the penal code which have improved human rights, the removal of Sudan from the US State Sponsor of Terror list which should allow access to international finance and trade. While there continue to be human rights violations, particularly in South Kordofan, the country evidence since December 2019 does not indicate that the Nuba have been targeted because of their ethnicity by the state.” While the Tribunal acknowledges that since that time, there has been a military overthrow of the Sudanese Government, there is no persuasive evidence that Nuba people have been targeted because of their ethnicity.

23. The Tribunal accepts that the applicant’s father is a Nuba person and that the applicant primary appears to identify as a Nuba person, as made clear in the delegate interview. The applicant claimed in his statement that his father was part of the Nuba Armed group in Sudan and that his father had a falling out with that group and was detained and tortured because of the falling out. The applicant did not claim that he would positively engage in any activity in Sudan upon his return that would place him at risk of harm due to his ethnicity as a Nuba person.

24. The Tribunal observes that at the Tribunal hearing, when asked about his protection claims, the applicant did not claim to fear harm in Sudan due to his ethnicity. The applicant explained failure to raise this claim due to a misunderstanding with the interpreter. The Tribunal has considered that response but is not persuaded by it. The Tribunal is satisfied that the applicant’s failure to repeat this claim at the Tribunal was due to the fact that the applicant does not fear harm in Sudan due to his ethnicity, despite what he had claimed in his written material.

25. The Tribunal’s assessment is that while there have been and continue to be history tensions between the Nuba people and others in Sudan, the situation now appears to be relatively stable. The Tribunal is not satisfied that the applicant is a witness of truth about his claimed narrative of his past experiences in Sudan and he would be returning to Sudan after an absence of 13 years. The Tribunal has not engaged in any political activity in Australia which would be capable of demonstrating that the Sudanese authorities, or any group in Sudan, would be of interest to him because of his ethnicity as a Nuba person or any other reason. The applicant has not suggested that he would do so in Sudan upon his return but made reference to being forced to join the Nuba tribal group and fight rivals in Sudan where he would likely be killed. The Tribunal does not accept that the applicant would be forced as [an age]-year-old man to join any group for the purpose of violence.

26. While the Tribunal is prepared to give the applicant the benefit of the doubt that the applicant’s father was involved in a Nuba Armed Group during his father’s time in Sudan, there is no county information to suggest that relatives of people who were previously involved in armed groups are harmed because of that familial association. The Tribunal is not satisfied that the applicant would be of interest to any person, group or authority in Sudan because of his father’s previous involvement with an armed group.

    Ethnicity/Membership of a particular social group, being a person who belongs to Dinka Tribe

    Imputed anti-government political opinion by virtue of Dinka ethnicity or being associated with or perceived to be associated with opposition groups

27. It is convenient to deal with these claims together, given that one is an extension of the other.

28. The 27 April 2016 DFAT Country Information Report on Sudan makes little reference to members of the Dinka tribe, other than to assess (at 3.4) that:

29. “Minority Rights Group International ranks Sudan third on its 2015 Peoples Under Threat Ranking identifying the Fur, Zaghawa, Massa and others in Darfur, along with the Ngok Dinka, Nuba and Beja, as the most at-risk ethnic groups in Sudan.”

30. The Tribunal accepts that the applicant’s mother is a Dinka person and that the applicant may be identified as part of that group. However, the Tribunal struggles to accept that a reference in the DFAT report to an assessment made by the Minority Rights Group International about the Dinka people demonstrate that the applicant, as a person who may identified as a Dinka person, faces a real chance of serious harm due to his membership of that particular group.

31. The applicant’s submissions, and his written statement did not identify the harm he claimed he would suffer in Sudan because of his member of the Dinka people, nor identify the perpetrators of that harm. The Tribunal is satisfied that the absence of detail is due to the fact that the applicant neither fears harm because he is a Dinka person, or because there is a real chance of serious harm to the applicant because he is a Dinka person.

32. The Tribunal also observes that at the Tribunal hearing, when asked about his protection claims, the applicant did not claim to fear harm in Sudan due to his ethnicity. The applicant explained failure to raise this claim due to a misunderstanding with the interpreter. The Tribunal has considered that response but is not persuaded by it. The Tribunal is satisfied that the applicant’s failure to repeat this claim at the Tribunal was due to the fact that the applicant does not fear harm in Sudan due to his ethnicity.

33. The DAFT Country Information Report does not suggest that Dinka people in Sudan are linked, or imputed to be linked to, opposition groups in Sudan. If there was any such information, the Tribunal is confident that this would be included in DFAT’s assessment.

34. The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Sudan by being associated or perceived to be associated with opposition groups in Sudan by virtue of his identity as a Dinka person. The Tribunal is not satisfied that any association exists.

    Membership of a particular social group, namely a person suffering from severe mental health issue

35. The applicant provided reports concerning his claim to suffer mental health issues, namely depression and post traumatic stress disorder, and reports detailing his regular mental health counselling.

36. In the report of 24 June 2021, [name deleted] provided a summary of the psychological treatment as four treatment sessions. The treatment summary detailed that the applicant’s concerns reflect his traumatic experiences in Sudan, as well as separation from his partner and children and uncertainty about his future. The summary detailed that the applicant reported experienced feeling jumpy, having nightmares, auditory hallucinations, headaches, low mood, low energy, low appetite, isolating socially, memory issues and sleeping difficulty. The treatment was ‘further assessment, behavioural therapy (which was detailed as exercise), strengths work, and use of ‘grounding techniques.

37. In the report of 23 July 2021, [a named person], who is identified as a psychologist wrote that the applicant reported and presented with symptoms that are characteristics of DSM-V diagnostic criteria for a persistent depressive disorder (Dysthymia) and PTSD. She wrote that these conditions have arisen as a result of his past experiences as well as his current predicament.

38. The Tribunal notes that the diagnosis of the applicant’s mental health condition has been based on the applicant’s own reporting, and as outlined above, the Tribunal has concerns about the applicant’s credibility concerning his narrative about his previous experiences in Sudan. Nevertheless, the Tribunal is prepared to accept that the applicant suffers with a persistent depressive disorder and post-traumatic stress disorder as diagnosed in the psychological report. The question is whether there is a real chance of serious harm to the applicant in Sudan due to his profile as a person who suffers from mental health issues.

39. The most recent 27 April 2016 DFAT country information report on Sudan does not discuss people who suffer from mental health issues as a group that is at risk of serious harm in Sudan. It details that a lack of capacity and resources means that Sudanese overall have poor access to health care and poor health outcomes, particularly outside major urban centres, but does note that the Government is responsible for the provision of universal and free-of-charge basic health care. The DFAT travel advice of 10 September 2020 detailed medical facilities are basic in Khartoum and inadequate elsewhere.

40. The delegate decision noted a July 2020 journal article about the decline of the public health system following decentralisation and increasing privatisation of the health system, and detailed the following from the article:

41. The study highlighted strong indications of healthcare budget cuts and privatisation of drug supply systems after the implementation of decentralisation. Moreover, this led to internal hospital pharmacies focusing on profit-making and on removal of free treatment schemes for vulnerable populations. The budget cuts and deficits resulted in deterioration of quality and capacity of decentralised hospitals, thereby facilitating privatisation.

42. The delegate decision also noted that according to a 2015 journal article, despite a high prevalence of mental illness throughout most parts of Africa, there are structural and systemic barriers such as inadequate health care infrastructure, insufficient number of mental health specialists, and lack of access to all levels of care. The same 2015 article also notes that mental health is neglected and under-funded in the health care system.

43. The delegate also detailed that the World Health Organisation (WHO) 2011 Mental Health Atlas profile of Sudan notes that although Sudan has a mental health policy and a mental health plan, there is ‘no dedicated mental health legislation’ or ‘legal provisions concerning mental health legislation. Later in the decision record, the delegate cited that country information located shows that there are non-governmental organisations (NGOs) in Sudan providing health care. A 2019 report by the International NGO, Médecins Sans Frontieres (MSF) notes that it provides a range of medical and humanitarian support to people across Sudan.

44. The delegate noted that a 2015 article elaborates that ‘stigma and discrimination are some of the common challenges faced by those with a mental illness in many African countries, as a result of which many people suffer in silence and fail to reach their full potential’ and that, according to another article in April 2015 ‘Sudanese society, like many around the world, has stereotyped views about mental illness and how it can affect people (which) often leads to discrimination and social isolation of affected individuals, with a person suffering from schizophrenia suffering from hallucinations or delusions being labelled as a ‘crazy person’ or someone possessed by an evil spirit.

45. However, the Tribunal has no evidence that people in Sudan who suffer from mental illness are discriminated against in the sense of being subject to systematic and discriminatory conduct. There is no evidence that treatment for people with mental health problems is deliberately withheld because Sudan has decided to withhold treatment from those people.

1. While the Tribunal accepts that mental health services appear to be limited in Sudan, there is a level of care that in Sudan that the applicant would be able to access to treat his mental health problems in Sudan.

2. The Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm in Sudan due to his profile as a person who suffers from mental illness.

3. In the event that the people who suffer mentally illness are not a ‘particular social group,’ the Tribunal considered whether there is a real risk of serious harm to the applicant in Sudan as a person who suffers mental illness.

4. There is no evidence that the applicant as a person who suffers mental illness will be arbitrarily deprived of his life or be subjected to the death penalty. The Tribunal does not accept that the applicant would be tortured, or subject to cruel or inhuman treatment or punishment, or be subject to degrading treatment or punishment. The Tribunal does not accept that the applicant would not be able to access treatment to address his mental health problems, limited as that treatment may be, and is satisfied that any lack of medical care is faced by all citizens of Sudan and not the applicant personally.

   Membership of a particular social group, being a person who is diagnosed with alcohol and drug addiction

5. The Tribunal accepts that the applicant has had been diagnosed with alcohol and drug addiction. The reports submitted by the applicant make that clear. The applicant’s criminal history in Australia also makes it clear that he is a person who has struggled with substance abuse. The evidence provided by the applicant is that he is currently undergoing regular counselling to address his issues.

6. The Tribunal understands the applicant to be arguing that in the event that he is unable to access treatment for his medical health problems, he will utilise drugs and alcohol as a substitute for treatment, which may result in him being harmed. It was submitted that the applicant would do so because he had done so in the past.

7. In the event that the applicant did not have medical treatment to address his mental health issues, the question is what harm (if any), the applicant would suffer. While it is broadly correct to say that a person who has mental health problems that are untreated is harmed by lack of treatment, and that drugs (as an alternative to treatment) are harmful to a person, the Tribunal does not accept that if the applicant chooses to use alcohol and drugs as a substitute for medical treatment, his use of drugs or alcohol amounts to persecution.

8. There is no evidence that the applicant would be denied medical treatment for reasons of persecution, so any harm from the denial of medical treatment would not be intentional, but rather a consequence of a lack of medical treatment. In so far as the harm that would be caused to the applicant because of his use of drugs, that is harm that the applicant would cause himself, and Sudan could not be held responsible for that.

9. The applicant claimed that in the circumstances if he was to fall back into taking drugs or alcohol addiction, he would face serious harm and punishment under the Sudanese criminal law. In so far as use of alcohol, he claimed that he would be prosecuted for drinking alcohol in Australia if returned to Sudan. The Tribunal does not accept that that will occur in Sudan, given the structure of the Sudanese Crimes Act 1991 as discussed below. In short, because consuming alcohol is not illegal in Australia, he would not be prosecuted for that conduct upon his return to Sudan in the event that the authorities in Sudan became aware of this particular offending.

100.   Although the applicant did not specifically claim that if he was unable to get the same type of treatment for his mental health issues in Sudan as he has in Australia, he would resume using alcohol and drugs as a substitute for this treatment and be liable to detection and prosecution for this offending in Sudan, the Tribunal does not accept that this would occur.

101.   The Tribunal notes that the applicant provided s 78 of the Criminal Law Act 1991 of Sudan which provided that a person who is a Muslim and drinks or possesses or manufactures alcohol shall be punished with a whipping. Imprisonment and a fine may also be imposed if a Muslim person drinking alcohol causes annoyance to others. That Act does not deal with the offending of using, possession or trafficking of drugs (other than what appears to be offending related to diluting the quality of what appears to be prescription drugs in s 84), the Tribunal accepts that “Penalties for possessing, using, or trafficking in illegal drugs in Sudan are severe, and convicted offenders can expect long jail sentences and heavy fines” as advised in ‘Criminal Penalties in Sudan,’ as advised in the CountryReports.org website.

102.   The Tribunal has considered the applicant’s criminal history, and the medical documentation provided. The applicant is now [an age]-year-old male who, as a result of the medical reports and treatment, clearly understands that terrible effects that drug and alcohol use has upon him, as it has clearly resulted in his criminal offending. The Tribunal is satisfied that the applicant has an understanding that drug and alcohol use is not a good alternative to address his mental health problems. The Tribunal does not accept that with this knowledge, the applicant would use drugs or alcohol in Sudan as an alternative to treatment to address his mental health problems.

103.   As a result of the Tribunal’s satisfaction that the applicant will not use drugs or alcohol upon his return to Sudan, the Tribunal is satisfied that the applicant will not face the Sudanese criminal justice system or otherwise to any adverse attention related to drug or alcohol use.

104.   The Tribunal does not accept that there is a real chance of serious harm to the applicant in Sudan due to his membership of a particular social group, being people with alcohol and drug addiction.

105.   The Tribunal has considered in the alternative to the finding that this is a particular social group whether there is a real chance of significant harm to the applicant in Sudan as a person who has a drug or alcohol addiction. The Tribunal is not satisfied that the applicant will use drugs or alcohol in Sudan and is not satisfied that the applicant would be arbitrarily deprived of his life, subject to the death penalty, tortured, or subject to cruel and inhumane treatment or punishment, or degrading treatment or punishment because of his drug or alcohol addiction in Sudan.

Membership of a particular social group, being a person who is homeless upon his return

106.   The applicant claimed that he would be homeless if he returned to Sudan, and that he does not have any siblings, assets or savings in Sudan and that his family in Australia are not in a position to financially support him upon his return to Sudan.

107.   The Tribunal accepts that people who are homeless upon their return to Sudan can constitute a particular social group.

108.   The Tribunal accepts that there is no evidence that the applicant would have a home to go to as he settled back into living in Sudan. The Tribunal is also satisfied that is unlikely that his family in Australia would financially support him in Sudan, and there is no evidence that the applicant has any family in Sudan or assets or savings in that country.

109.   However, the protection visa application form identifies that the applicant can speak, read, and write Arabic and English, that he completed Level 1-3 English studies at [a] College between January 2009 and January 2011, and that he completed courses [through] TAFE. He has experience [in various jobs]. The applicant also indicated that in addition to his employment history in Australia, he worked in [one role] in Sudan and was a [particular occupation] in Egypt.

110.   This evidence demonstrates that the applicant is a person who can work and subsist in a variety of environments, including Sudan. While the applicant may not have a stable and permanent place to live upon his return to Sudan, the Tribunal finds it likely that he would be able to secure some form of accommodation shortly after his arrival in that country on the basis of his skills.

111.   There is no evidence that people who are homeless in Sudan are subject to systematic and discriminatory conduct to constitute persecution. While people in Sudan may experience hardship if they are homeless (by virtue of the fact that they do not have a permanent place to live) that hardship does not mean that they are persecuted.

112.   The Tribunal has also considered, in the alternative that homeless people in Sudan are not a particular social group, whether there is a real risk of significant harm to the applicant in Sudan on the basis that he would return to Sudan as a homeless person. There is no evidence that the applicant would be arbitrarily deprived of his life in Sudan as a homeless person or that he would be subject to the death penalty because he was homeless. There is no evidence that the applicant would be subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as a homeless person because there is no evidence that the authorities in Sudan deliberately withhold any services, or protection, to homeless people in Sudan.

Membership of a particular social group, being a Muslim person who has three interracial children born out of wedlock to Christian partner(s)

113.   In the protection visa application form, the applicant indicated he was in a de facto relationship with [Ms A], [an age]-year-old female citizen of Australia. He identified that he has three children who were Australian citizens, two of which he had with [Ms A]. The applicant identified that he was a Muslim.

114.   [Ms A] provided a statement dated 20 September 2021. In that statement, she suggested that she would move to Sudan to be with the applicant. The Tribunal observes that the applicant requested the Tribunal take oral evidence from [Ms A] at the Tribunal hearing, but the Tribunal refused to accede to that request because the Tribunal was satisfied that [Ms A] would give evidence consistent with her written statement.

115.   The Tribunal accepts that a Muslim who has three interracial children born out of wedlock to Christian partners may constitute a particular social group.

116.   The applicant provided the Tribunal with the English translation of the Sudanese Criminal Act of 1991. The applicant drew the Tribunal’s attention to s 145(1) of the Act, which makes it a criminal offence to have sexual intercourse with a woman ‘without a lawful bond.’ The applicant also directed the Tribunal to s 7 of that Act which also provides that ‘A Sudanese who has committed outside the Sudan an act which makes him a principal or joint offender to an offence falling under the provisions of this Act shall be punished when he returns to the Sudan if the act constitutes an offence and also, under the law of the State where the Act is done, unless it is proved that such a Sudanese was tried outside the Sudan before a competent court and has served his sentence, or has been found not guilty by such a court.’

117.   Concerning the enforcement of the criminal law, the Tribunal is not satisfied that the applicant would be punished for his past conduct in Australia by having three children out of wedlock. This is because this conduct is not a criminal offence in Australia, which appears to be a prerequisite to enliven the prosecution in Sudan of offences committed outside Australia. The Tribunal is not persuaded by the applicant’s argument that ‘Sudan is a very corrupt country and security forces are a law onto themselves’ which would mean that he would be prosecuted despite the limitation provided in that Act.

118.   Concerning future conduct, the Tribunal accepts that if the applicant’s Australian de facto partner was to relocate to Sudan with her two children, they would likely continue in their relationship, including sexual relations without being married. However, despite what the applicant’s de facto partner asserts in her written statement that her genuine intention is to considering return to Sudan with the applicant, the Tribunal does not accept that this will occur. As made clear from [Ms A]’s written statement, she has a host of medical [conditions]. She wrote about that she was really concerned that services or quality of services to address her medical conditions in Sudan will not either be affordable or available. She also wrote that ‘unlike Australia, she would have no support network or anyone that she knew in Sudan. The Tribunal is satisfied that [Ms A] and the two children she shares with the applicant will not travel to Sudan with the applicant, and therefore, there is no risk that the applicant would be prosecuted in Sudan for having sexual intercourse with his de facto to whom he is unmarried, because she will not be in Sudan.

119.   In the event that a person who has had children out of wedlock to Christian women are not a particular social group, the Tribunal has considered whether the applicant would face a real risk of significant harm with this profile upon his return to Sudan. The Tribunal is not satisfied that the applicant will be arbitrarily deprived of his life, or subject to the death penalty in Sudan because he has previously had sexual relations with two women in Australia that resulted in the production of three children. The Tribunal is also not satisfied that the applicant will be tortured, or subject to any cruel inhuman treatment or punishment, or degrading treatment or punishment in Sudan because of these relationships.

Membership of a particular social group, being an apostate or betrayer of Islam for being intimate and fathering three children with Christian(s) without a lawful bond

120.   The applicant claimed that he will be harmed in Sudan due to his relationship in Australia with Christian women and fathering three children outside wedlock, which may be considered ‘contrary to Islamic principles’. He claimed that he may be prosecuted for apostasy because of this.

121.   The Tribunal accepts that people who may have relished their faith and fathering children with people outside their original faith may constitute a particular social group.

122.   In the Sudan Criminal Act 1991, ss 125 and 126 deal with insulting religious creeds and apostasy respectively.

123.   However, the Tribunal does not accept that the applicant would be considered to have insulted a religious creed or an apostate in the strict legal sense for the purpose of prosecution under that Act.

124.   The Tribunal’s reading of that Act related to insulting a religious creed relates to public abuse or insulting any religion or their traditions. In the Tribunal’s assessment, this means engaging in public criticism against a religion. The Tribunal does not accept that the applicant, living a life contrary to any particular religious practice, would constitute an insult to Islam, or any other religion. The Tribunal is not satisfied that the applicant would be prosecuted for this reason under s 125 of that Act.

125.   Concerning the specific offence of apostasy under s 126 of the Act, the Tribunal is not satisfied that the applicant would be charged with that offence in Sudan.  The Tribunal’s understanding of that law is that it relates to people who propagate renunciation of Islam or publicly declares renouncement of that faith with an express statement or a conclusive act. The Tribunal is not satisfied that having children out of wedlock with a Christian is an express statement of renunciation of Islam or a conclusive act that demonstrates a renunciation of Islam. Instead, they are acts inconsistent with (as the Tribunal understands) the teaching of Islam, and in so far as having children out of wedlock, inconsistent with a number of religious faiths. To the Tribunal’s way of thinking, an express statement of renunciation of Islam would be a public declaration of no longer believing or supporting Islam, and a conclusive act of no longer believing in Islam would be something capable of demonstrating that the applicant was no longer a Muslim, such as becoming baptised into the Christian faith, or attending church services for another faith.

126.   While the applicant may not be a devout Muslim or agree with some or all of that faith’s teachings, the Tribunal does not accept that this makes him an apostate as envisaged under the Sudanese criminal law. The Tribunal does not accept that the applicant would be charged with a criminal offence related to apostasy in Sudan

127.   Looking at that claim more broadly, the Tribunal accepts devout Muslims in Sudan may consider that the applicant does not live his life in accordance with the principles of Islam. However, it is a remote risk that some person who just happens to be a devout Muslim in Sudan would get to know the applicant and harm him because of that person’s view that the applicant has, by his conduct, renounced Islam. The Tribunal does not accept that this will happen.

128.   The Tribunal has also considered whether, in the alternative to the applicant being a member of a particular social group whether he would face a real risk of significant harm upon his return to Sudan because of his profile as a person who has been intimate and fathered three children out of wedlock with Christians to whom he was not married. The Tribunal does not accept that the applicant would be arbitrarily deprived of his life or subject to the death penalty upon his return to Sudan should any person, group or authority become aware of this when he returns to Sudan. The Tribunal is not satisfied that any person, group or authority would have any adverse interest in the applicant. Further, the Tribunal does not accept that if some person, authority or group in Sudan became aware of the applicant’s conduct in Australia they would decide to torture the applicant, or subject him to cruel or inhuman treatment or punishment, or degrading treatment or punishment.

Membership of a particular social group as a failed asylum seeker, with actual and perceived links to a western country

129.   The 27 April 2016 DFAT country information on Sudan addresses the conditions for returns (from 5.38). The report details that ‘DFAT is not aware of any evidence that suggests an asylum seeker returning to Sudan would be distinguishable to the broader community to any form or discrimination or violence, unless they present a threat to the Government. In reality, this is likely to affect vocal opponents of the Government. DFAT understands that the main issue facing returnees is this perceived lack of financial support for effective reintegration into Sudanese society, particularly in Khartoum.’

130.   The applicant claimed that he had adopted to Australian culture, language and embraced other values of Australia. He claimed that he would face harm at the hands of militia groups and other tribe members as a western returnee. It was claimed that this would be because he would be seen as a wealthy person and would become a target for criminals and armed militias.

131.   The Tribunal accepts that the applicant would return to Sudan as a failed asylum seeker from a western country. The Tribunal accepts that people such as the applicant with those circumstances may constitute a particular social group. Although the applicant provided what was described as ‘country information confirms the applicant’s worst fear is a real possibility because there have been many recent instances of looting, stealing and killing by various actors in South Kordofan,’ the Tribunal has been provided no information to suggest that any of these claimed instances have been directed towards Western returnees. The Tribunal is not satisfied that any harm would be directed towards the applicant because he has returned to Sudan from a western country. If there was any evidence that returnees to Sudan were perceived as wealthy and targeted because of this assumption, that information would have been included in the 27 April 2016 DFAT report.

132.   The Tribunal has had regard to the applicant’s claim that he dresses differently to other Sudanese which would make it easy to identify that he is a western returnee but is not persuaded that wearing clothing would identify him as a western returnee who would be targeted for harm. The Tribunal does not accept that there is a real chance he would targeted by armed groups and general criminals and held for ransom.

133.   The Tribunal has also considered the applicant’s claim that he would become a target of the authorities in Sudan upon his return to Sudan because he left without an exit visa and would be interrogated and harmed. Given the Tribunal’s findings about the applicant’s credibility about his backstory in Sudan, the Tribunal places no weight on the applicant’s claim that he left Sudan without an exit visa.

134.   The Tribunal has considered the alternative about whether the applicant, as a failed as asylum seeker from a western country, would face a real risk of significant harm in Sudan. The Tribunal does not accept that the applicant would be arbitrarily deprived of his life or subject to the death penalty as a result of being a failed asylum seeker from a western country. Further, there is no evidence that the applicant would be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment upon his return to Sudan based on his profile as a failed asylum seeker from a western country.

Denial of access to basic services (including mental health/drug addiction services) and a denial of capacity to earn a livelihood, which may cumulatively threaten his capacity to subsist

135.   The Tribunal accepts that the medical services and health system in Sudan is not comparable to Australia. However, as discussed previously, there is a health care system in Sudan which is adequate, and there is no evidence that the applicant would be deliberately denied the services available because of his profile for reasons of persecution, or any other reason.

136.   The Tribunal also notes, as discussed previously, the applicant’s employment history and skills. The Tribunal does not accept that the applicant would not be able to subsist in Sudan in light of his skills and demonstrated ability to work.

137.   The applicant’s evidence also suggests his belief that Sudan is a corrupt country, with risk of violence between tribes and groups. There is no persuasive evidence that the deficiencies in the political system or lack of general security may be faced by him personally as opposed to the population in general.

138.   The Tribunal is not satisfied that the general security situation in Sudan will expose the applicant to a real chance of persecution under s 36(2)(a), or that the applicant will face significant harm personally for the purpose of s 36(2)(aa) given the general security situation in Sudan.

CONCLUSION

Refugee

139.   For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Sudan due to his race, religion, nationality, membership of a particular social group, or political opinion.

140.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Complementary protection

141.   For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sudan, there is a real risk the applicant will suffer significant harm.

142.   Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

Member of the same family unit

143.   For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who meets the requirements of s 36(2)(a) or (aa) and holds a protection visa.

144.   Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.

decision

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

Nathan Goetz
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

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

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…