2507424 (Refugee) - [2025] ARTA 2044

2507424 (Refugee) [2025] ARTA 2044 (31 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2507424

Tribunal:General Member R Lee
Date:31 July 2025

Place:Perth
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 31 July 2025 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – Sudan – race – Dinka – imputed political opinion – previous child soldier combatant – previous Sudanese Army service – suspected rebel sympathiser – nationality – entitlement to South Sudanese citizenship – Abyei Administrative Area – civil and ethnic conflict – fear of killing – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIMAC v SZRHU (2013) 215 FCR 35
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2025 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] January 2009 and has not departed since.[1]
[1] Movement record – 25 March 2025. The Tribunal has referred to the applicant using gendered and gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant, who has alternatively claimed to be either a national of Sudan or South Sudan, applied for the visa on 13 January 2025. The delegate refused to grant the visa on the basis that they were not satisfied there is a real chance that, if the applicant was returned to South Sudan, they will be persecuted for one or more of the reasons in s5J(1)(a) of the Act, in part due to the vast numbers of documented Sudanese refugees seeking refuge in South Sudan meaning that the applicant would be one amongst many individuals with a Sudanese accent and characteristics and there would be difficulties identifying him as a previous combatant. Further, the delegate was not satisfied that there was a real risk the applicant would suffer significant harm if removed to South Sudan.
The applicant appeared before the Tribunal on 16 April 2025 and 30 July 2025 to give evidence and present arguments.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is [an age]-year-old who was born and lived in Khartoum, Sudan. Further, the applicant:
·belongs to the Dinka ethnic group; is separated;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2507424 (Refugee)

Details

AGLC: 2507424 (Refugee) [2025] ARTA 2044
Case: [2025] ARTA 2044
Decision Date: 31 July 2025

CaseChat Overview and Summary

The case of 2507424 involved a Sudanese national of Dinka ethnicity who sought a protection visa based on fears of persecution if returned to Sudan. The applicant had previously served in the Sudanese Army and was concerned about being identified as a former soldier, particularly due to his ethnic background and suspected rebel sympathies. The matter was heard and determined by the Administrative Review Tribunal (Tribunal).

The primary legal issues the Tribunal needed to address were whether the applicant had a well-founded fear of persecution if returned to Sudan, specifically concerning his past military service and ethnic background. Additionally, the Tribunal had to determine if the applicant's fear was reasonable given the ongoing conflict in the Abyei Administrative Area, which is a disputed region between Sudan and South Sudan.

The Tribunal examined the applicant's evidence and concluded that his fear of persecution was plausible given his past service in the Sudanese Army and the likelihood of being identified as a former soldier. The Tribunal noted the instability in the Abyei region, which is rich in oil and has been a site of conflict between various ethnic groups. The Tribunal found that the applicant's accent and lack of Swahili language skills would likely reveal his northern Sudanese origins, making him vulnerable to persecution. Additionally, the Tribunal considered the ongoing intercommunal clashes and the involvement of various armed groups in the Abyei region, which further supported the applicant's fear of persecution.

Ultimately, the Tribunal decided to remit the matter to the Department for further consideration, taking into account the applicant's compelling evidence and the precarious security situation in the Abyei region. The Tribunal found that the applicant had presented a credible case for a well-founded fear of persecution if returned to Sudan.

Orders

Orders of the court

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Background

Background to the litigation

The applicant appeared before the Tribunal on 16 April 2025 and 30 July 2025 to give evidence and present arguments. BACKGROUNDEvidence before the Department According to information contained in their protection visa application, the applicant is [an age]-year-old who was born and lived in Khartoum, Sudan. Further, the applicant:·belongs to the Dinka ethnic group; is separated; is of no religion; from May 2008 lived in Australia; can speak, read and write English, Arabic and Dinka; had never studied or been employed; and·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application. In relation to their claims for protection, the applicant claimed they left Sudan because they were a child soldier who fought for the north (now Sudan) against the South and is bisexual.Protection visa application interview The Department invited the applicant to attend an interview on 6 February 2025 at which the applicant gave the following evidence. The applicant was born in [an area of] Khartoum in Sudan, but his nationality is South Sudanese. He has no identifying documents from South Sudan. His ethnicity is Dinka, from Abyei. His parents originate from the region of Abyei. His accent and name would be identifiable from the Abyei region. He is Christian (Catholic), although the protection visa application said he did not have a religion. He attends church, the last time was before Christmas, being the last time the pastor attended the detention centre where the applicant was being held. He decided to lodge a protection visa application, as it was the only option to try and stay in Australia as he does not see a place for him in South Sudan. As to the claim he was a child soldier, in 2000/2001 the family struggled, and youngsters were collected from the street and sent to the frontlines. If a person volunteered for military service, then they could leave after three or four years if they survived. The applicant had no choice as he had no way of surviving but to volunteer. His role was security, providing protection to people. He was a foot soldier on the frontline. He served in east Sudan, connected to the Port of Sudan. As to the claim that he fought against the South Sudanese, the applicant said he knew he belonged to South Sudan but he was manipulated to think they were the enemies. As he grew up, he subsequently saw things differently, that it was just one nation fighting each other. He was not sent to the frontline. A friend was sent to work in Khartoum. When the applicant took annual leave, he visited his friend who said that shortly the country would be split. After that he rid himself of his military ID’s and never returned. When asked how anybody would know about his military history in Sudan or South Sudan, the applicant said his accent and he does not speak Swahili gives away that he is from the north, and so they would know he served in the military. People from the north have fled to the South, and a few weeks ago 500 civilians were killed for supplying the rebels with information. There may be friends and family in South Sudan who would know he had been in the military. People are paid to give information. He does not know where family in Sudan or South Sudan are. The only family he has been talking to are his family here, being his parents, [specified siblings] and two children. He never had contact with his father’s family.

Evidence

Evidence Before The Court

On 9 February 2025, the applicant responded.Evidence before the TribunalThe review application On 25 February 2025, the applicant lodged an application for review of the delegate’s decision with the Administrative Review Tribunal (Tribunal), in which he stated his nationality was Sudanese and with which he provided a copy of the delegate’s decision.The first hearing: supporting documents and oral evidence The applicant gave the following oral evidence. The applicant has seen the delegate’s decision, and the Tribunal handed a copy to the applicant at the hearing. He can read English. A friend helped the applicant prepare the protection visa application. The applicant did not fully read it before it was lodged because he relied on his friend who had worked on previous applications, although the applicant acknowledged it remained his responsibility. The applicant is a member of the Abyei Ngok subgroup of the Dinka’s. Abyei is the restricted area on the border between Sudan and South Sudan. He has visited Abyei, including a small place called [Town 1], which is [near] Abyei. The area is unstable, as both Sudan and South Sudan say it belongs to them and they currently share power. When the Tribunal mentioned a map showing a town called Abyei in Western Kurdufan in Sudan, the applicant said that was the one. The applicant said he had never visited anywhere that is now South Sudan. The Tribunal also raised information which referred to the Abyei Administrative Area, which is under the control of South Sudan. The applicant was born in Khartoum, or north of Khartoum, in [year] and believes he is Sudanese. His parents, grandparents and great grandparents were born in Abyei. Dinka’s are indigenous to South Sudan and they are everywhere. Tribalism fights never end. The current President of South Sudan is a [Dinka]. The Tribunal noted that the applicant had claimed protection from South Sudan. The applicant said he ended up being South Sudanese when there was no choice of nationality, after he lost his visa and went to court, because the Department thought Sudan would not accept him anymore because of the war. All of his documents show that he is Sudanese. The applicant fears going back to Abyei as it has never been stable, since the independence of South Sudan in 2011. Recently, there has been fighting between Twic ethnic and Abyei ethnic groups, which only settled down a few weeks ago after two years. The north will also attack to get rid of the Abyei people. Another side will come into Abyei to steal the cattle. People fight about land and cattle. Abyei is rich with oil. The applicant was born in [year] and had lived north of Khartoum. His parents came to the north when they were children and never returned to Abyei. The family had no contact with people of the Dinka ethnicity or extended family in Abyei. In 2003, he volunteered for military service with the Sudanese Army (SAF) [while underage] for nearly five years when you were expected to serve at least ten years. He was a frontline foot soldier, who worked security at schools in the east, before Port Sudan. Whilst he had discharged his weapon in a celebratory manner, he had not shot at human beings. Nobody shot at him in Sudan.

Decision

Reasons for decision

The applicant travelled to Australia on a travel document issued by the Australian Embassy in [Country 1], based on the protection visa application, which was a Global Special Humanitarian visa, based on the Administrative Appeals Tribunal decision in [citation deleted] (AAT 2022 Decision). Based on the protection visa application, the applicant claimed to be a Sudanese citizen at birth and at the time of the application, but that he sought protection from return to South Sudan. At the interview with the delegate on 6 February 2025 he said he was South Sudanese. The delegate found the applicant was a South Sudanese national, on the basis that both of the applicant’s parents were born in what is now the Abyei Administrative Area and that this region is part of South Sudan. The Tribunal will address those two issues in reverse order as follows. The Abyei Administrative Area on the border between Sudan and South Sudan is disputed territory between the two countries. The Netherlands Ministry of Foreign Affairs in 2024 stated:[10]Abyei is an oil-rich area on the border between Sudan and South Sudan. At the time of South Sudan’s independence [in 2011], the two countries could not agree on this border region. Under international pressure, Abyei was placed under joint administration. This administration consisted of members appointed by both countries. In the future, the status of Abyei is to be decided through a referendum amongst the local population. Until then, a UN peacekeeping force is trying to maintain peace and security in Abyei. This UN mission is known as the United Nations Interim Security Force for Abyei (UNISFA). On 6 November 2023, the UN determined that the status of Abyei could not be finalised for the time being, given the war between the SAF and the RSF in Sudan.[10] 'General Country of Origin Information Report on Sudan', Netherlands Ministry of Foreign Affairs, 31 May 2024, 20240904113405 at [2.7.7]. The Abyei Administrative Area is included in both maps of Sudan and maps of South Sudan. As at March 2025, according to a Political Geography Now map of approximate territorial control, the top half of the Abyei Administrative Area is controlled by the Sudanese Armed Forces (SAF) and the bottom half is controlled by the South Sudan People's Defence Forces (SSPDF), with the RSF holding West Kordofan and East Dafur to the north and west and the SAF holding West Kordofan to the east.[11][11] 'Country Guidance: Sudan', European Union Agency for Asylum, 23 June 2025, 20250626140442, Map 1. In June 2025, the European Union Agency for Asylum stated:[12]In the disputed region of Abyei, the situation remained tense as intercommunal clashes continued and accounted for most of the security incidents reported in the [Kordofan] region. In addition, the local security situation continued to be affected by the conflict in Sudan with an ongoing flow of weapons into the region, the arrival of persons displaced by the fighting and clashes between the SAF and the RSF in border areas. There were also reports of RSF incursions into Abyei territory, mainly in connection with looting incidents.[12] Ibid at page 80.

Ratio Decidendi

Legal Principle Established

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