2210273 (Refugee)

[2022] AATA 4809

2210273 (Refugee) [2022] AATA 4809 (20 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2210273

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Jane Marquard

DATE:20 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 20 October 2022 at 10:38am

CATCHWORDS

REFUGEE – Protection Visa –Sudan – Nuba ethnicity – membership of the particular social group – a returnee and person who had not completed military conscription – imputed political opinion – lack of family networks – perceived anti government political opinion – State protection is not available to the applicant – applicant has a well-founded fear of persecution for reasons of his nationality and/or political opinion – harm feared is systematic and discriminatory – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 46, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by the Department of Home Affairs (the Department) on 14 July 2022 to refuse an application for a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THIS APPLICATION FOR REVIEW

2. The applicant is a [age]-year-old man who was born in [City 1], Nuba Mountains, Sudan. He left Sudan for [Country 2] in 2001 when he was around [age] years old, and his mother and siblings joined him a few years later. He and his family applied for refugee status with the UNHCR in [Country 2]. The applicant’s mother, [a number of siblings] were granted visas for [Country 1] where they now reside and are [Country 1] citizens. The applicant arrived in Australia on [date] July 2004 on a Global Special Humanitarian (XB 202) visa.

3. The applicant has a daughter in Australia, born in [year]. He also has a cousin who is an Australian citizen. He is no knowledge of other family members in Sudan.

4. Following a number of criminal convictions, the applicant’s visa was cancelled on 7 May 2015. He was detained on this date and has remained in immigration detention since this time, primarily on Christmas Island but also at Yongah Hill Detention Centre.

5. The applicant speaks Nuba, Arabic and English.

6. The applicant applied for this protection visa on 16 March 2022 on the basis of his Nuba ethnicity, imputed political opinion, as a returnee and person who had not completed military conscription.

7. The Department, as delegate of the Minister for Home Affairs, refused to grant the visa on 14 July 2022. The delegate was not satisfied that the applicant would face a real chance of serious harm or a real risk of significant harm if he returned to Sudan.

8. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   EVIDENCE CONSIDERED IN THIS REVIEW

9. The Tribunal has considered evidence before the Department and this Tribunal, as well as independent country sources about Sudan. The applicant appeared before the Tribunal on 5 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s two sisters and mother from [Country 1]. The applicant’s representative was also present at the hearing.

10. The evidence and material before the Tribunal is referred to where relevant in the findings set out below. Not all the evidence is referred to in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[1]

    [1] See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

    SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

11. Australia acceded to the 1951 Convention relating to Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.[4] For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[5]

    [2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).

    [3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

    [4] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).

    [5] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

12. 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.

13. 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

14. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality:  s 5H(1)(a) of the Act.

16. 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, the persecution must involve serious harm, and the real chance of persecution must relate to all areas of the relevant country.

17. A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

18. 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 (1997) 190 CLR 225 (Brennan CJ).

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

    Complementary protection criterion

20. 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.

21. 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.

    Mandatory considerations

22. 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, 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.

    The applicant must satisfy the statutory elements

23. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, 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) or make out the case for the applicant (Prasad v MIEA (1985) 6 FCR 155). It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. 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; Abebe v Commonwealth of Australia (1999) 197 CLR 510.

    Consideration of evidence and findings

    Key issues for determination

24. In determining whether the applicant meets the refugee or complementary protection criteria, the key issues in this case are:

    ·     whether the applicant is of Nuba ethnicity as claimed;

    ·     whether there is a real chance of serious harm on the basis of his Nuba ethnicity and/or imputed political opinion; and/or

    ·     whether there is a real chance of serious harm as a returnee from a Western country or a person who did not complete military training.

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

    Providing an opportunity to be heard

26. As the applicant was in immigration detention in Christmas Island, the hearing was conducted by video. The Tribunal is satisfied that this format provided a real opportunity to be heard, considering the legislative requirement that the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick. The Tribunal 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.  

27. The Tribunal was satisfied that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant - most importantly that he is in detention on Christmas Island, such that in the interests of justice, the matter should be heard expeditiously. The applicant has been in immigration detention since 2015 and there may have been significant delay to the matter if the hearing was not to be conducted by video. 

28. The applicant confirmed that he could hear and see well. The representative was also present by telephone. There was appropriate communication between all parties during the hearing. The Tribunal is satisfied that the hearing provided a real opportunity to give evidence and present arguments in the format utilised.

    Nationality

29. For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’, or if they do not have a nationality, outside the country of former habitual residence. Section 5J(1) refers to this country as a ‘receiving country’.

30. For the purposes of the complementary protection criterion, s 36(2)(aa) of the Act 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, or a country of former habitual residence.

31. The applicant claims that he is a Sudanese national and this is accepted by the Tribunal. He entered Australia on a Class XB Subclass 202 Global Special Humanitarian Visa as a UNHCR mandated refugee from [Country 2], travelling on a travel document titled ‘Document for Travel to Australia’ issued to Sudanese citizens. The Tribunal is satisfied on the basis of his travel document and his 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

32. Asylum cases present particular complexities in respect of fact-finding. Applicants may have difficulties presenting evidence due to experiences in their home countries, as expressed by the Full Federal Court 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.

33. Indeed, assessment of credibility is inherently difficult and at times can be based on imperfect perceptions of truth.[6] 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’.[7] An Australian study found that tribunal members may rely on assumptions which can be inconsistent with psychological literature.[8]

    [6] Fox v Percy (2003) 214 CLR 118.

    [7] Hilary Evans Cameron, ‘Refugee Status Determinations and the Limits of Memory’ (2010) International Journal of Refugee Law, Volume 22, Issue 4, 469 –511<  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.’

The Tribunal is conscious and mindful not to have unreasonable expectations of memory and that there may be factors that consciously or otherwise influence decisions.[9] An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[10] The Tribunal is assisted by the comments of both the High Court and Federal Court of Australia[11] in ensuring that the process of credibility assessment is reflective and fair (see AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133). 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.

[9] H Bennett and G Broe, ‘The neurobiology of achieving a comfortable satisfaction’ (2014) 26 Judicial Officer, Bulletin 8, 65–9.

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

The Tribunal has also taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility,[12] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and should approach the assessment with an open mind. In this case, the applicant and his family lost their father and brother due to the conflict in Sudan and these traumatic experiences may have impacted on evidence presented, and also may have resulted in nervousness and anxiety in presenting evidence to government authorities. Presentation may also have been impacted by cultural or psychological issues or level of education, as well as stress caused by separation from home and family. The applicant has been in detention since 2015, an extraordinarily long period. The applicant told the Tribunal about suicides which took place in both Yongah Hill and Christmas Island detention centres. He said that these experiences were very difficult, and he had to be strong. He experienced flashbacks from incidents in Sudan when a helicopter arrived at the detention centre after a detainee set himself on fire. He said that he has seen a counsellor while in the detention centre. The Tribunal has taken into consideration medical research which concludes that long-term detention may have significant impact on mental health,[13] and consequent ability to testify. [14]

[12] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website,< .

[13] M von Werthern, K Robjant and Z Chui, ‘The impact of immigration detention on mental health: A systematic review’, BMC Psychiatry, December 2018,  < UNHCR, ‘Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process’, November 2017.

The findings of fact are set out below.

Is the applicant of Nuba ethnicity?

The Tribunal accepts that the applicant is of Nuba ethnicity for the following reasons.

His evidence that he was born in [year] in [City 1], Nuba Mountains, Sudan and is of Nuba ethnicity has been consistent in all his interactions with the Department. Evidence about his Nuba background was provided when he first applied for a Global Special Humanitarian visa in 2004. The Department records state ‘Nuba Mtns people’. He has also consistently provided evidence that at home his family members, including his grandparents and father, spoke Nuba although they spoke Arabic at school and in the community. His experience is consistent with information about languages in Sudan. Country sources indicate that Nuba ethnic groups speak several different languages,[15] or dialects,[16] though the lingua franca is Sudanese Arabic. He also spoke about having Nuba friends in Australia, the historical oppression of the Nuba, discussed later in these findings, and noted (accurately) that some Nuba are Christians and some Muslims.

[15] IRRN News, ‘The Nuba: Prisoners of Geography’, 3 August 2015.

[16] Minority Rights Group International, ‘Nuba’, 19 June 2015, < type="1">

For these reasons, the Tribunal accepts that the applicant’s ethnicity is Nuba and that he can be identified as such by his darker skin and name.[17] Reports confirm that an individual can be identified or perceived as Nuba due to their name, the colour of their skin, facial appearance or accent.[18] The Nuba are of black African origin.[19] The Encyclopedia of Stateless Nations states that Nuba tribes ‘differ in appearance’.[20] The National Human Rights Monitors Organisation (NHRMO) was cited in a joint paper published by the UK Home Office (UKHO) and Danish Immigration Service (DIS) stating that Nuba individuals ‘would be easily identifiable from the name’.[21] The UKHO-DIS report explained that individuals from Darfur or the Two Areas ‘could usually be identified on arrival, for example by the name of the person, his language (Arabic or non-Arabic accent) and his facial/physical features’.[22] A representative of Journalists for Human Rights (JHR) in that report also stated that ‘it was very easy for Sudanese to identify one’s ethnic affiliation by physical appearance and skin colour’.

Why the applicant left Sudan

[17] International Refugee Rights Initiative, ‘We just want a rest from war: Civilian perspectives on the conflict in the Sudan’s Southern Kordofan State’, April 2015.

[18] UK Home Office and Danish Immigration Service, ‘Sudan: Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’, August 2016, < IRRN News, ‘The Nuba: Prisoners of Geography’, 3 August 2015.

[20] Encyclopaedia of Stateless Nations: Ethnic and National Groups around the World, 2^nd edition, Google Books, ABC-CLIO.

[21] UK Home Office and Danish Immigration Service, ‘Sudan: Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’, August 2016, < UK Home Office and Danish Immigration Service, ‘Sudan: Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’, August 2016, <>

The Tribunal accepts that the applicant’s family left Sudan after their village was invaded and the applicant’s father and elder brother were killed by the army, as well as due to the applicant’s fear of conscription. This evidence has been consistent since the application for a humanitarian visa. The applicant said in his application to the Department for the protection visa that he left Sudan in 2002 with his family due to ‘threats’ and that his father was killed in front of him and his family after the army invaded their village, and his elder brother was also killed. He said that he and his family were in danger due to army control in the country. In evidence to this Tribunal differently constituted in relation to a review of the decision not to revoke his visa cancellation, his sister also gave evidence that his father and brother had passed away and that was why they escaped Sudan. The applicant’s mother gave corroborative evidence that she lost her husband in the war in 1995 and her oldest son in 1999 because they were members of the Nuba tribe. Consistent evidence was provided to the Department in the protection visa interview. The applicant said that the Sudanese army came to the village in about 1998 in order to move people out when he was about [age] or [age] years old. He said that they killed civilians, including his father and that after this, his elder brother took them to Khartoum. In a statement to the Tribunal the applicant reiterated his claim that his father and older brother were killed in ‘ethnic cleansing’ in the 1990’s that ‘claimed the lives of 500 000 of close family and friends in the Nuba Mountains’. He said in his Department interview that the ‘Nuba government they don’t want to agree with the government at the time’. He said that his people were always in the woods, hiding from the government and some are ‘still in the woods’.

The applicant’s evidence was further corroborated by his sisters and mother at the Tribunal hearing giving evidence by video. The sisters and mother were credible witnesses. They are living in [Country 1] and are citizens of [Country 1]. One of the sisters has a [degree] and is working for [an employer]. The other sister is studying to be [an occupation]. The Tribunal was persuaded by their considered evidence, as they did not attempt to underplay the seriousness of the applicant’s criminal convictions, instead reflecting on how he might have changed while in detention. They confirmed that they left Sudan in 2003 due to the civil war and that the applicant left earlier than they did as their mother felt that he would be killed. The Tribunal accepts their evidence that they did not agree with the civil war and did not want him to be killed. One of the applicant’s sisters referred to the family suffering ‘the trauma of the father and elder brother being killed’.  She said that there was ‘fire and a huge fight and blood on their farm’. She said that they were not activists, but her brother did not want to go into the army like their elder brother who was taken and never came back. She said that they saw a lot of unnecessary bloodshed. She said that her brother would have had to sign up for the military, so their mother made the arrangements for her son to depart.

The applicant’s sister also gave evidence, which is accepted by the Tribunal, that the applicant’s mother was imprisoned as a result of the applicant departing the country without completing his military service. According to the sister’s evidence to the Tribunal, the applicant’s mother worked full-time and had a kiosk after hours. She was a single mother as by this time the applicant’s father had been killed. She said that after the applicant’s departure, the military came and asked where her son was. She said that he had left the country and they took her in for questioning, telling her that he needed to fight in the army. She told them that she did not agree with the war. She was beaten and then they released her.

The applicant provided some more detail about these incidents at the Tribunal hearing, saying that his father was a farmer in the Nuba Mountains and they lived a peaceful life in the mountains, but the government ‘would not leave them alone’. He said that he does not have many memories of the mountains due to his age at the time but knows that his father ‘helped some young people resist the government’. He referred to a general who fought for the Nuba rights. He said that the government attacked the rebels who fought back, and his father got caught up in the conflict. He said that following the killing, his family went from town to town and there was ‘a lot of shooting’. He said that they hid, and it took them three days to get to Khartoum and after this they never went back to the region. He explained that his elder brother had to do military service, and he was taken to ‘reserve army’. He said that after training they wanted his brother to fight in Nuba and South Sudan. His brother did not want to fight ‘their own brothers’, and six to seven of the recruits tried to escape by jumping off the army base wall into the river, but the army saw them and shot them. He said that their mother wanted them to leave immediately. She had in fact started to plan for the applicant to leave when he was [age] years old so he could leave before army conscription. He said that he left prior to the university test which preceded conscription. He went by train and boat to [Country 2] in 2001 and about two years later his family joined him. The Tribunal accepts this evidence as it was consistent and coherent.

The Tribunal asked the applicant at hearing about a claim made in a letter to the Tribunal that in 2001 the government authorities asked him to join their cause, but he escaped. He explained, and the Tribunal accepts his explanation as reasonable, that ‘he does not know what that means’, instead he meant that he escaped before they he could be recruited into the army. The Tribunal accepts that this is what the applicant meant, and that the applicant did not do his military service. Departmental records relating to the Global Special Humanitarian visa state that he ‘refused to do military service’. He left when he was around [age] years old, so it is quite plausible that he had not completed his military service.

The experiences as described by the applicant and his family accord with information in country sources. These sources describe a long history of targeting of Nuba by the military or support of militias in conflict with the Nuba. According to a December 1991 report from Africa Watch the Sudan Peoples Liberation Army (SLPA) first formed in 1983, recruiting people from the Nuba Mountains. The SLPA made its first incursion into the Nuba Mountains in 1985, and this led to the creation of Sudanese Arab Baggara militias, called the Murahaliin, in response. The Murahaliin began to engage in small-scale raiding of Nuba communities. In July 1987 an SLPA unit infiltrated the Nuba Mountains and subsequently began recruiting Nuba youths, and systematically killing or kidnapping opponents. Raiding by Murahaliin intensified, and during 1988 a branch of these militias came to form a paramilitary force named the Popular Defence Force. The conflict in the Nuba Mountains escalated during 1988, with army and military intelligence arresting and executing Nuba individuals suspected of sympathising with the SLPA. In 1989, the conflict escalated further when the SLPA advanced close to Kadugli town, with combatants on both sides targeting civilians in the area, and attacks by Murahaliin increasing in frequency and savagery. Following the 1989 Sudanese coup d’état the Revolutionary Command Council (RCC) introduced the Popular Defence Act, which in effect legitimised the Murahaliin. After this, there was a spate of militia raids that sometimes occurred in conjunction with the regular army. This pattern of violence continued in 1990 and 1991, with an upsurge of violence by the army and military intelligence against Nuba civilians occurring in mid-1991.

Country sources indicate that the late 1980s through to 2002 was a time when Nuba were targeted by the military and the experience of the applicant’s family does appear plausible in light of the information. The attacks on the Nuba by Sudanese armed forces in the 1990s have been described as a ‘nearly successful genocidal effort to exterminate the Nuba people’.[23] DFAT provided a background to the targeting of the Nuba in its 27 April 2016 report:

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 Murahaliin. In the early 1990’s, the Government intensified its efforts to limit the authority of the Nuba, including through forcibly converting some of the Christian population to Islam.[24].

[23] E Reeves, ‘The Challenge of peace in the Nuba mountains’, Briefs and Advocacy, September 2020

[24] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report - Sudan ', 27 April 2016, paragraph 3.10, p.1.

Reports also refer to attacks by the army on civilians around Kadugli at the time. Fighting as part of the Second Sudanese Civil War continued in the 1990s and early 2000s, with fighting between the Sudanese government and the rebel movement officially ending with the signing of the Comprehensive Peace Agreement on 9 January 2005.[25]

[25] Africa Watch, ‘Sudan destroying identity: the secret war against the Nuba’, 1 December 1991

The courts have suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims [26]. A similar approach is suggested in the Department’s Refugee Law Guidelines[27] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (‘UNHCR Handbook’) [28], which provide useful guidance for this Tribunal. Given the consistency of evidence provided and the country information about military action in the Nuba mountains at the time, there is no reason to doubt the explanations provided for why the applicant departed Sudan for [Country 2].

[26] SZLVZ v MIAC [2008] FCA 1816 at [25].

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

[28] UNHCR, re-issued February 2019 at 203-204].

The Tribunal is also satisfied that the applicant and his family suffered some discrimination as Nuba people when living in Sudan and that young Nuba men were forcibly recruited into the military. The applicant explained that he is a ‘big person’ who was therefore targeted, and sometimes the army would stop the bus and take people to the army. He said that he was lucky that he always had identification with him. He said that the army believed that Nuba people were involved in politics even if they were not, and that Nuba were not trusted and some of them did work as spies. The Tribunal accepts the applicant’s evidence that although he was not involved in politics, Nuba people were often imputed with being involved in anti-government political activity. This experience is consistent with information provided in country sources.[29] The Tribunal also accepts his evidence that sometimes there was discrimination in access to health and social services, and the authorities expressed ‘hate’ towards Nuba people, telling them to go back from where they came from. These experiences accord with information about the Nuba people in Sudan, discussed later in this decision.[30]

Life in Australia

[29] Department of Foreign Affairs and Trade, DFAT Country Information Report Sudan, 27 April 2016

[30] See for example, UK Home Office and Danish Immigration Service, ‘Sudan: Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’, August 2016, <>

The Tribunal accepts the applicant’s evidence that after fleeing to [Country 2] the United Nations sent him to Australia at the age of [age]. The Tribunal accepts his evidence that he ‘did his best to integrate into the community’ but that it was difficult for him without family support.

Records in the Department’s file regarding the cancellation of the applicant’s visa show that the applicant has been convicted of a number of offences of driving while intoxicated between 2007 and 2013. He was also convicted of assaulting an officer in 2009. The Tribunal accepts his evidence that ‘unfortunately I got involved with the wrong types of people and did things I thought I was not capable of’. The Tribunal accepts that in recent years he has taken steps to improve himself as evidenced by Certificates of Attendance in a number of programs in detention, as well as a Certificate of Appreciation from Australian Border Force as a person who had demonstrated positive behaviours. The Tribunal accepts that he is attempting to improve his life. His mother said in a statement to the Tribunal, ‘I know my son was not an upstanding citizen and chose some routes he could've avoided. However, I know he still has a chance to do so, especially after spending over seven years incarcerated. Based on my conversations with him thus far, I can assure you that he had a lot of time to reflect on his actions and re-evaluate his life and the choices he had made. I know if he gets a second chance, he will make amends.’

The Tribunal notes that the applicant has a daughter in Australia, born in [year] and that he is no longer in a relationship with her mother. The Tribunal accepts that the applicant is ‘trying to fix the relationship with her grandmother, who looks after the child, but it is difficult from detention’.

Does the applicant have a well-founded fear of persecution?

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 if he were to return to Sudan.

Under s.5H(1) of the Act, 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 themself of the protection of that country.

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.

Does the applicant fear being persecuted?

Section 5J(1)(a) requires that the person ‘fears being persecuted’ for one of the stated reasons. This appears to incorporate the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.

There was somewhat inconsistent evidence provided to the Department about the applicant’s subjective fear. He did express fear on the basis of his Nuba ethnicity in his application, although at the Department interview, he agreed that he did not fear returning for this reason as he ‘would not be remembered’, and the government had changed. It was also put to the applicant at the Tribunal hearing that there was information which may be a reason or part of the reason for affirming the decision under review. This information was that in evidence as part of his application for review of a decision not to revoke cancellation of his visa, he said that he feared returning due to not wanting to go into the reserve army and because he had no family in Sudan. He did not claim to fear the government. The Tribunal member in that matter asked him: ‘your concern about going back to Sudan or South Sudan relates to being drafted into the army’, and he agreed with this. Then the Tribunal member asked him, ‘that is your main concern. You are not worried about any political persecution or any trouble like that. What you are worried about its being forced into the army and going to fight a war somewhere that you don’t want to do, is that right?’ The applicant said ‘yes that is true’. When this was put to the applicant at the Tribunal hearing, he said that maybe at that time he was not given enough time and he was also very nervous.

After hearing his evidence at the Tribunal hearing, the Tribunal is satisfied that the applicant genuinely fears harm for reasons of ethnicity and imputed political opinion and that his contrary evidence to the Department may have been the result of inability to fully articulate comprehensively, or nervousness. He has given evidence, which the Tribunal accepts, of discrimination and hatred towards Nuba people when he was growing up. He said that although his mother worked hard to look after them, they ‘grew up in fear’. He said that there is ‘a hate especially from the army towards the Nuba people’.  He commented that when Nuba people were recruited to the army they were taken to the front line. He said that because of the difference in appearance, sometimes there was a difference in treatment of Nuba people in regard to health and other services, and Nubas would be told to ‘go back to where you come from’. He said that they are the victims of historical oppression. It is reasonable given his experiences in Sudan, that he would fear going back on the basis of his Nuba ethnicity.

The applicant also told the Department at interview and the Tribunal, that he fears returning to Sudan as he has no relatives or friends, and they lost their house in Sudan. He said if he returned to Khartoum he would have to hide and try and survive. He said if it was known that his family live in [Country 1] he would be ‘kidnapped and chopped to pieces’ until his family paid money. He said in a written statement that the country is run by the army and if he returned he would face the people who killed his father. He claimed that political kidnappings and torture happen daily and that Sudan is a dictatorship and there is no law and order. He confirmed that is afraid that if he returned he would be flagged for violence as his family were previously victims of the army. He said from his accent, his place of origin, his looks and the fact that he left the country as a refugee, he will be harmed, violently, tortured, or kidnapped.