2301956 (Refugee)

The applicant, a national of Sudan, sought a protection visa. Her claims for protection were initially considered as part of her father's application, but her own claims were separated for review. The dispute concerned whether the Tribunal had jurisdiction to determine her claims and whether she met the criteria for a protection visa, specifically alleging a well-founded fear of persecution based on her membership in the particular social group of "unmarried women and girls in Sudan," her gender, and imputed political opinion, including past gender-based violence and fear of future violence and forced marriage.

The primary legal issues before the Tribunal were whether it retained jurisdiction to determine the applicant's protection claims, given her evidence was heard in her father's related proceeding without her claims being formally determined, and whether she met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth), either on refugee grounds or complementary protection grounds. The Tribunal was required to consider the applicant's personal circumstances, including past gender-based violence and her current physical and mental health, in light of country information regarding the situation for women and girls in Sudan.

The Tribunal found that it retained jurisdiction to determine the applicant's claims because her claims had not been formally determined in the related proceeding, where she had only given evidence as a witness. Applying Ministerial Direction No. 84 and considering the evidence before it, including the applicant's statutory declarations, her sister's evidence, a transcript of her oral evidence from the related proceeding, and a youth worker's report detailing her trauma and mental health issues, the Tribunal concluded that the applicant had a well-founded fear of persecution. The Tribunal noted that her father and siblings had been found to be refugees and that her sisters had been found to have a well-founded fear of persecution as "unmarried women and girls in Sudan subject to past gender-based assault and violence from male members on a repeated basis who face the likelihood of a repeat of this violence either within marriage or outside marriage if forced to return to South Sudan."

The Tribunal determined that it should decide the review in the applicant's favour on the basis of the material before it pursuant to section 425(2) of the *Migration Act 1958* (Cth). The decision under review was remitted for reconsideration with a direction that the applicant satisfied the requirements of section 36(2)(a) of the Act.