2507424 (Refugee)
[2025] ARTA 2044
•31 July 2025
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 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIMAC v SZRHU (2013) 215 FCR 35Any 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; 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.
The applicant said if people found out that he had fought for the Sudanese he would be treated like a traitor, as a rebel and taken out completely. Before the war his only issue would have been with the South Sudan. Now, he could be sold out to Sudan.
He visited Abyei in 2005. If he returned to South Sudan, he does not know where he would go. Nowhere would be safe. Due to the resources in the area, the area is targeted. South Africa has also sent in militia. The place of Abyei has never been safe. When asked about the capital, the applicant said two weeks ago some of the northener’s were killed. He has no family in South Sudan. If he returned, he thought there were no jobs, unless a person was part of the South Sudanese army or government. The applicant spoke of South Sudan military officers and police dying by suicide, because there is nothing to eat. He would not survive a week there.
As to his claims about his sexuality, when the delegate said he was bisexual, the applicant said he had to be honest, when he lodged his protection visa application in January 2025 a friend helped him, but he does not have any bisexual issue. He was only told about this a day before yesterday. He had had to find someone to help. His claim has nothing to do with sexuality. He is not bisexual, he is straight. When asked if there was anything else he feared, he said he did not know his family left the country whilst he was in the military and he wanted to come here and be with them. His parents, the siblings and the children are all he has. If he returns, he will not see them again. In South Sudan, it will be the end of his life.
The delegate raised that the applicant had said he was happy to depart to South Sudan as soon as possible; he did not fear returning to South Sudan, he only feared God; and he may have some family members in South Sudan, such as an Uncle and said they would be raised in a Department email as it contradicted what he had said in the interview. The applicant said he was frustrated about being placed in the detention centre without committing any crime. Khartoum is a battlefield at the moment, and this is what brought forth the discussion about his South Sudanese nationality. The turning point was when he realised that he was going to be sent back to South Sudan, instead of Sudan. The Sudanese government said they would not take him back as they had no records of him.
Post-interview
On 6 February 2025, the Department wrote to the applicant listing various comments of his in his signed Australian citizenship application dated [in] March 2017; responding to the notification of the cancellation of his visa on 22 October 2020; giving evidence during a hearing in relation to an AAT decision dated 12 January 2022; from detention client interviews on 4 May 2023 and 28 February 2024; a conversation with the removals team on 24 April 2024; a statement the applicant signed on 4 May 2023 and the provision of details of an uncle the same day; and comments on the reintegration assistance paid to voluntary returnees on 18 November 2024. The delegate indicated that these comments gave them reason to question the credibility of the applicant’s claims regarding fearing to return to South Sudan and also brought into doubt his assertions that he did not have any contacts in South Sudan who would be able to assist him on his return.
On 9 February 2025, the applicant responded.
Evidence before the Tribunal
The 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.
The applicant took annual leave from the east to Khartoum in the north, when he was told the country would separate and he wanted nothing to do with it. He got rid of his military IDs at the age of [age range] and never returned. As he did not finish his term, nor was he fired or gave formal notice of retirement, it would cause him trouble with the SAF. He stayed in Khartoum [doing specified jobs] and surviving on the streets. The applicant went to look for his grandmother, at a place [distance] north of Khartoum along the River Nile. He also met with his Uncle at the grandmother’s place. His grandmother could not support him and [in] January 2009 his parents sponsored him to come to Australia as they preferred him to be with them and his siblings. The parents had thought he was dead, as they had lost contact when he joined the army. The parents and siblings had come to Australia together in 2006 through [Country 1]. The applicant’s two children are Australian born.
If the applicant was to return to Abyei, the people of Kurdafan who call themselves Arab are from the RSF who are fighting against the Sudanese military. As the applicant served in the Sudanese military, he would be targeted at any given time by the Kurdafan, RSF and from the South Sudanese. If the applicant spoke Dinka, the South Sudanese would be able to tell he is from Sudan from his accent. On the other hand, the applicant would be treated as a traitor and a deserter from the Sudanese army.
Reading from the delegate’s decision, the applicant agreed that their parents were born in a region called Abyei; they were ethnically Dinka, which according to country information, is an ethnic group who predominantly reside in South Sudan; that they identify with the Abyei Dinka people; they had never had any documents of identity from South Sudan. What was not clear to the Tribunal based on the map before it was whether Abyei was in Sudan or South Sudan.
The applicant disagreed with the delegate’s statement that they believe themselves as having South Sudanese citizenship, because they only came to this conclusion when they came to court. The applicant said if you are from Abyei, you do not have to have proof to live in Sudan.
There is a fight in Unity State in South Sudan, with the Nuer ethnic group, a group to which the Deputy Prime Minister of South Sudan belongs. The RSF would be against the Dinkas and Nuers, because they claim Abyei for themselves.
The applicant accepted the following in the delegate’s decision as accurate:
The applicant has claimed that they were born in [year] in Khartoum. They claim to have been
recruited as a child solider into the Sudanese army at the age of [age] without their family’s knowledge. They claim to have served for approximately three to four years. During their time in the military, their immediate family, consisting of their mother and stepsiblings, immigrated to Australia [details deleted]…
Eventually, [in] July 2008, they were granted a [visa] sponsored by the applicant’s mother. They joined their family [in] January 2009 in Australia and have not departed Australia since this date.In response to the delegate saying that after the army, the applicant worked between Sudan and South Sudan, the applicant said in addition to [specified jobs], he drove [vehicles]. The [journey] left from Khartoum and went to Abyei, up to [Town 1] and back to Khartoum. It was a circular route of twenty days duration. The applicant hid his identity from the military escort and checkpoints were paid off. He worked that on and off, about every [four or five months]. The applicant also drove mates who worked for the Red Cross in Khartoum to Abyei. The delegate’s statement that ‘after leaving the army, the applicant appears to have worked between the Sudan and South Sudan’ is only correct if you count Abyei and [Town 1] in South Sudan.
In response to the delegate saying that the applicant did not raise any claims in relation to their criminal convictions in Australia, the applicant said he did fear returning to Sudan or South Sudan because they would have their own punishment for his crimes. He has hardly seen people surviving or they were changed when released with not long to live. The applicant agreed that was a risk faced by the population generally for people who had committed a crime, but said a wealthy family would be able to pay people off, which his family was not.
The crimes for which the applicant had been convicted in Australia were property damage and theft. When the Tribunal asked why the Sudanese or South Sudanese authorities would care about the applicant’s convictions for theft and property damage in Australia, the applicant said they still have to punish you for it. The applicant said that having left Sudan for a better place and returning because they had committed a crime and had been deported back, meant that the authorities will look into it and act on the basis that he has brought shame to the country.
In response to the delegate saying, the applicant claimed that, if people found out that they had served in the Sudanese military, they could be accused of being part of the rebels, the applicant said the Sudanese Army had been fighting the people who became the South Sudanese army. The South Sudan army would see the applicant as part of the group who fought them, although he never did.
The applicant deserted the Sudanese military before South Sudan became a separate nation, as he did not want to be a part of that fight. The Sudanese military created the RSF, and they became a part of the Sudanese military, because of the possible separation, before they turned on each other. The North wants the country to be one nation, so the applicant said there will be another war.
The applicant is Christian, from a Christian family and attends church when it is available in immigration detention. Pope Francis visited South Sudan recently. Sudan believes Christians cannot rule or have power in the system. When the Tribunal asked if being Christian would be the cause of any harm if he returned to Abyei, the applicant said the problem was not just the religion, it is his darker skin because he will be known not to be Arab. The word they use (Abe) is a slave. There is also now an issue in the Abyei region with the Nuer ethnic group (to which he does not belong).
The applicant agreed with the delegate’s comments as follows, noting that he was talking about have been part of the Sudanese army which fought against what became the South Sudanese army:
The applicant…claimed that they will be identifiable as a person who had lived in the north of Sudan [through] their personal characteristics, such as their accent. They claim that their obvious connection with Sudan will make them vulnerable to being targeted with violence and mean they could be suspected as a rebel sympathiser.
The applicant said now you have South Sudan recruiting youth and sending them to fight the Nuer; each tribe is trying to recruit the youth to fight in support of their tribes; and the RSF going after the youth or anyone who had had anything to do with the Sudanese Army. Everybody has to be armed and fight somebody or other. Sudan would use you to fight the RSF and the RSF would use you to fight Sudan.
The applicant does not have any personal connections with South Sudan. Although the delegate had commented that this does not mean that the applicant does not have any family in South Sudan and said that in 2024, the applicant stated that they have a large family in South Sudan, when the Tribunal asked about this, the applicant responded that he has never met this family and he does not know their whereabouts. The only family he has known were his grandmother, who has passed when he was imprisoned, and his parents. You go by the last name, and somebody said people were in the South, but nobody knows where. The applicant said he does not have extended family in the Upper Nile, Unity State, Jonglie, Warab or Northern Bhar El Ghazal. If he does, he has never met them before. His parents, grandparents and great grandparents were from Abyei. His mother left with her mother when she was about [age] and his father left Abyei when he was [age], when the 1970’s war started. There are family members who have not been heard from since.
In response to the delegates statement that it was plausible that the applicant would have family or tribal connections remaining in Abyei region in the north of South Sudan, even if they are not in contact with them currently, the applicant said people in that region hardly make it to sixties, so if he has relatives in Abyei they would be descendants of descendants. Most of them would have been adopted, where parents died, with names changed and the fact of adoption kept secret. This also means he may be related by name to someone who is not in fact a true blood relative.
The applicant confirmed that he was not seeking protection on the basis of his sexual orientation, it had been written by the person helping him. The applicant is straight not bisexual. He wants nothing to do with this claim.
The applicant does not wish to be returned to Abyei, because he is Dinka – Ngok who served in the Sudanese army but deserted and has darker skin and a northern Sudanese accent so could be identifiable as having lived in Sudan. The applicant said he would not be safe in either Sudan or South Sudan. The only place where he would have been safe was Khartoum, but not now. He would be given away by people for any price. People work within and around the airport, looking for new faces who have arrived, and will contact people outside advising of names and country coming from. He would be followed and his military record as part of what he did before he left and his criminal record in Australia would be found out. He fears being disappeared by being imprisoned.
The Vice-President is under house-arrest and the Nuer and the Dinka fighting, and people are complaining in South Sudan about unfairness because the President appointed someone else of his own volition.
Between hearings
On 23 July 2025, the Tribunal invited the applicant to comment on information pursuant to s 359A of the Act as well as country information about his nationality.
On 24 July 2025, the applicant replied by email that he had no comments.
The second hearing: supporting documents and oral evidence
The applicant gave the following oral evidence.
The applicant confirmed that his mother came to Australia with his stepfather. His biological father had not been in his life. The applicant met him once in Sudan in about mid-2005. The biological father was born in Abyei and has since passed. The applicant never had his biological father’s name, but he always knew his stepfather was not his biological father and it was not a secret. The grandmother he referred to in the previous hearing was his maternal grandmother. Both of the applicant’s biological parents are Ngok Dinka, as is the applicant, though the applicant said he was particularly dark skinned for a Ngok Dinka.
The applicant’s stepfather has been in his life since he was 3/4/5 and adopted the applicant. The applicant’s surname is his stepfather’s. It is the stepfather who was born in [Town 2], which is now part of South Sudan.
The only comments the applicant had on the information provided by the Tribunal on 23 July 2025 is that he now understood why people said he was South Sudanese; he accepted he was South Sudanese because of the birthplace of his stepfather; and he was grateful because it gave him a sense of identity. The applicant confirmed he has never been to South Sudan, but has been to Abyei, and does not know anyone in South Sudan. He expressed his concern because not only would the South Sudanese know he was from the north from his accent; they would know because the way they speak Arabic is different. He is fearful of the volatile situation in South Sudan.
The applicant accepted the following was accurate:[2]
On [a day in] July 2020, [the applicant] was convicted in the District Court of South Australia with the following offences: commit theft using force (aggravated offence) (2); damage property not building or m/v (not graffiti or fire); basic offence: dishonestly take property without consent (2); drive or use motor vehicle without consent (2); damage building or motor vehicle (not graffiti or unknown); carry visible offensive weapon in a school or public place; and disorderly behaviour. He was sentenced to [period] imprisonment with a non-parole period of [period] and was disqualified from driving for 12 months.
Between 2010 and 2017, [the applicant] was convicted of offences including carrying an offensive weapon, numerous driving offences and a bond breach. For these offences, he was sentenced to a total of [period] imprisonment, two good behaviour bonds, disqualified from driving five times and issued various fines.
There is no indication [the applicant] has an overseas criminal history or outstanding charges in Australia or overseas.
[2] Based on a Pre Removal Clearance email of [a day in] May 2024.
Country information
Based on the Department of Foreign Affairs and Trade Country Information Report South Sudan (5 October 2016) (2016 DFAT Report), the new nation of South Sudan was established on 9 July 2011 following two protracted conflicts between the northern and southern regions of Sudan, being the First Civil War (1955 – 1972) and the Second Civil War (1983 – 2005). On 23 July 2013, President Salva Kiir (a Dinka) dismissed Vice President Riek Machar (a Nuer) and the entire Council of Ministers. Tensions within the ruling Sudan People’s Liberation Movement (SPLM)/Sudan People’s Liberation Army continued to build in the lead up to a meeting of the SPLM’s National Liberation Council on 13 December 2013, which was partially boycotted by Machar and his supporters. On 15 December 2013, conflict erupted and quickly assumed ethnic dimensions when Dinka elements of the Presidential Guard violently targeted Nuer civilians in Juba. Conflict continued to intensify, largely between the Government led by Kiir who is the leader of the SPLM and the Sudan People’s Liberation Movement-In-Opposition (SPLM-IO), led by Machar. While Machar was re-appointed as First Vice President on 26 April 2016 and the Transitional Government of National Unity (TGNU) was formed on 29 April 2016, Kiir undermined the Agreement on the Resolution of the Conflict in the Republic of South Sudan (ARC) of 26 August 2015 and the TGNU both before and after Machar’s re-appointment. The SPLM-IO’s Taban Deng was sworn in as Machar’s replacement on 26 July 2016. The humanitarian situation in South Sudan was dire and had been aggravated by the recent escalation in conflict.
The 2016 DFAT Report further stated that ‘official and societal discrimination and violence linked to an individual’s ethnicity occurs in two distinct ways – as a result of the formal conflict between the Government and the SPLM-IO and due to informal inter-tribal conflict’. The three main ethnic groups the Dinka, the Nuer and the Shilluk are ‘most at risk’ owing to their active involvement in the conflict between the Government and SPLM-IO. An individual’s ethnicity can often be identified by facial scarification, appearance, language, accent or name. The 2016 DFTA Report also stated that Dinkas had been targeted by the SPLA-IO on the basis of their ethnicity, particularly in conflict-affected areas.
There is no current DFTA reports for South Sudan, but in the intervening nine years, the situation does not appear to have improved.
As of 25 July 2025, the Australian Government was advising:[3]
We continue to advise do not travel to South Sudan, including Juba, due to the dangerous security situation and the threat of violence and armed conflict. The security situation is volatile and could deteriorate rapidly with little or no warning. If you’re in South Sudan despite our advice, leave when it's safe to do so using commercial means while they’re still available. If the security situation deteriorates further, routes into and out of South Sudan may be blocked and you may be unable to leave for an extended period. Juba airport may close or be inaccessible…
·Since March 2025, there has been armed fighting between rival factions, including airstrikes in some parts of South Sudan. Due to continuing tensions, there is a heightened military presence in Juba.
·Many security checkpoints (legal or illegal) have been set up in Juba and throughout the country. Vehicles are regularly stopped and searched, sometimes resulting in violence.
·Reports of intercommunal violence are common. Border areas are especially dangerous…
Since March 2025, there has been armed fighting between rival factions, including air strikes in some parts of South Sudan, resulting in casualties. Due to continuing tensions in the country, there is a heightened military presence in Juba and some parts of the country. Political tensions remain high, and the security situation could deteriorate quickly.
Lack of law and order across the country is a serious threat, the security situation is volatile and could deteriorate with little warning, including in Juba. Thousands of people have been killed in South Sudan since violence began in December 2013. Intercommunal violence and fighting between armed groups continue across the country. Border areas are especially dangerous.
[3] South Sudan Travel Advice & Safety | Smartraveller.
A rise in arbitrary arrests and detention has raised serious human rights concerns in South Sudan, as hundreds of political opponents, journalists and activists are being harassed, intimidated or held by State security agencies and armed groups in a practice human rights groups warn is undermining the country’s fragile peace process. Arbitrary detentions have been committed by holding victims incommunicado, denying them access to lawyers and family, and using torture and ill-treatment in detention facilities. The arrests have included South Sudan’s first vice-president, ministers, members of parliament and military officers, as well as civilians.[4]
[4] 'In South Sudan, scourge of arbitrary detentions undermines fragile peace', United Nations Office of the High Commissioner for Human Rights (OHCHR), 16 July 2025, 20250717104858.
In a Briefing Paper of March 2025, it is stated:[5]
It is not incorrect to claim that Kiir is the only thing holding South Sudan together. Dinka rivals, in particular, are wary of causing disruption to this system, lest the Dinka coalition splits apart and other groups attempt to take power, with potentially calamitous consequences for Bahr el Ghazal; ethnic hatred towards the Dinka, after years of land occupancy and violence targeting other ethnic groups by predominately Dinka forces, is well entrenched in much of the country.
[5] 'On The Brink: The Politics of Violence in South Sudan', Small Arms Survey, 28 March 2025, 20250429152749.
Attacks of civilians and other unlawful killings was one of the top five severe protection risks in South Sudan in 2024. Another one was discrimination and stigmatization, denial of resources, opportunities, services and/or humanitarian access.[6] In the February 2025 report, it was stated:
Out of a population of 11.29 million, approx. 9.18 million people in South Sudan are affected by climate-related shocks (such as floods and droughts), poverty and forced displacement. This means that approximately 81% of the population (IDPs, returnees and residents) are exposed to at least one of the top five protection risks. Further analysis shows that 98% of returnees (840K people) are the most protection risk-exposed population group, followed by IDPs at 81% (1,58M).
[6] 'South Sudan Protection Cluster and Areas of Responsibility: End of Year Report 2024', Global Protection Cluster, 18 February 2025, 20250303150514.
The Crisis Watch Report for April 2025 said about South Sudan:[7]
Violence wracked Upper Nile and spread to other areas. Conflict in Upper Nile state intensified, pitting President Kiir’s South Sudan People’s Defence Forces (SSPDF) and allied militias, backed by Ugandan army, against Nuer militia known as White Army, which has loose ties to First VP Machar’s Sudan People’s Liberation Army-In Opposition (SPLA-IO). White Army 7-13 April battled SSPDF and aligned militias (mostly from Padang Dinka and Shilluk communities) in Ulang County, reportedly killing hundreds. Wounded soldiers from Kiir’s force arrived in multi-ethnic state capital Malakal, sharpening intercommunal tensions and prompting many Nuer residents to flee to Fangak County (Jonglei State). Their arrival triggered mobilisation of Fangak White Army which, alongside SPLA-IO, mid-April advanced toward Malakal, clashing with Kiir’s forces around Owachi village south-west of city. SSPDF, supported by Ugandan airpower, 17, 20 April recaptured Ulang and Nasir towns from White Army, which marked setback for militia but is unlikely to bring an end to hostilities. Conflict also spread to parts of Central Equatoria and Western Equatoria states. Meanwhile, hostilities intensified in Sudan’s Blue Nile and South Kordofan states bordering South Sudan…fuelling concerns of further overlap between Sudan’s civil war and Upper Nile conflict.
[7] 'CrisisWatch 2025 - April Trends and May Alerts - Africa', International Crisis Group (ICG), 11 May 2025, 20250513151302.
According to Amnesty International in April 2025:[8]
In October, Akol Koor Kuc was dismissed from his position as director general of the National Security Service (NSS), a position he had held since South Sudan’s independence in 2011. During his tenure the NSS was accused of committing numerous serious human rights violations and other crimes under international law. The war in neighbouring Sudan gravely impacted the economy when damage to oil pipelines in March halted South Sudan’s oil exports through Port Sudan, which had contributed more than 85% of government revenue. According to UNHCR, the UN refugee agency, approximately 2 million people remained internally displaced. South Sudan hosted over 500,000 refugees, primarily from Sudan. Meanwhile, approximately 2.3 million South Sudanese people had sought refuge in neighbouring countries since the conflict began in 2013.
On 3 July the Transitional National Legislative Assembly passed the National Security Service Act 2014 (Amendment) Bill 2024. It became law by default on 12 August...The law strengthened the NSS’s already sweeping powers that allowed them to curtail the rights to freedom of expression, association and peaceful assembly, among other rights.
According to the UN Mission in South Sudan (UNMISS), by October, at least 54 people, including a child, were subjected to extrajudicial executions by government authorities, including members of the security services.
Clashes between armed actors in some areas left hundreds dead, most of them civilians, according to UNMISS which documented 1,069 killings resulting from inter-communal and political violence.
According to OCHA, the food security situation deteriorated due to flooding, ongoing conflict, displacement and the high cost of living. The conflict in neighbouring Sudan continued to compound the already dire humanitarian situation. As of late December, more than 900,000 people, including returnees, refugees and asylum seekers, had fled Sudan and crossed into South Sudan. Nine million people, or 75% of the population, required humanitarian and protection assistance. Approximately 7.1 million people (56.3%) were expected to face crisis-level or more severe food insecurity during the year. Malnutrition rates remained high, with more than 2.5 million children and women facing acute malnutrition. The UN’s Humanitarian Response Plan 2024 had received only 68.5% of the requested USD 1.8 billion needed to support 6 million people with life-saving assistance and protection services.
[8] 'The State of the World's Human Rights 2025', Amnesty International, 28 April 2025, 20250429095811.
In March 2024, it was reported that:[9]
South Sudan is still in a fragile state between war and peace. In February 2020, after a two-year process, parties to the ongoing conflict led by President Salva Kiir Mayardit and former First Vice President Riek Machar finally agreed to implement the 2018 Revitalized Agreement on the Resolution of the Conflict in South Sudan (R-ARCSS).
As of January 2023, the South Sudanese state’s monopoly on the use of force was still contested in multiple ways, and government control is only directly enforceable in small parts of the country.
Driven in part by the personal ambitions of some of the protagonists in the war, South Sudan is more divided today than it has ever been since its independence in 2011. Recent years have also exposed elite figures’ deep divisions as to whether to prioritize peace and democracy or instead continue fighting over power. The violence of December 2013 and the seven years of civil war were caused by these divisions. As the civil war continued, more factions emerged, with splinter groups breaking away from the SPLM. The fact that the SPLM continues to narrow the political space makes it difficult for new political actors to emerge. By contrast, rural areas are mostly under the authority of chiefs and local military units – often directly under the command of regional military and political structures. In short, there is no question of consensus-building, at least for now.
CONSIDERATION OF CLAIMS AND EVIDENCE
[9] 'BTI 2024 Country Report - South Sudan', Bertelsmann Stiftung, 19 March 2024, 20240320104523.
Criteria for protection visa
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.
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.
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).
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.
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.
Mandatory considerations
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
What is the applicant’s nationality?
The applicant had a Sudanese passport, which expired [in] 2010, in an alias which the delegate was satisfied was a variation of the spelling of the applicant’s name. The delegate had no concerns about the applicant’s claimed identity, and there is nothing before the Tribunal which raises a concern.
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.
The citizenship of people from the Abyei region born before 2011 is no easy matter. In relation to Sudan, a 2022 report concluded:[13]
Citizenship in Sudan is governed by the Constitutional Document adopted on 17 August 2019, which repeated the provisions of the Interim Constitution in relation to citizenship, and the Sudanese Nationality Act 1994, as amended in 2011 following the independence of South Sudan…the Constitution provides that “[e]very person born to a Sudanese mother or father shall have an inalienable right to enjoy Sudanese nationality and citizenship”. The law…provides for automatic citizenship for children of Sudanese men but requires children of Sudanese mothers to go through an application process. Since it was adopted in 1994, the law has allowed for dual nationality. Following the secession of South Sudan, the 1994 Nationality Act was amended in 2011 to discriminate against millions of Sudanese of southern origin, the majority of whom were rendered stateless. In 2018, the Nationality Act 1994 was amended again to reduce the impact of the 2011 amendments on the Sudanese of southern origin. These amendments preceded the 2018 revolution, which then ushered in a new era of political transition in Sudan after 30 years of autocratic rule and Islamic dictatorship and created a great hope that Sudan was marching towards democratization, the rule of law and constitutionalism. This hope was shattered after the military coup of 25 October 2021, which aborted any processes of democratization in the county, where the civilian cabinet was dissolved and all legislative, judicial and executive powers were concentrated in the hands of the military. Positive changes to the law seem unlikely under the current regime.
[13] 'Report on Citizenship Law: Sudan', Global Citizenship Observatory (GLOBALCIT), 01 May 2022, 20240826142205.
For a person born in [year] within the territory of the current Sudan, they are Sudanese by birth, unless their citizenship has lapsed or been revoked, pursuant to the 1994 Sudanese Nationality Act 1994, s.4(1)(b)(i).[14] It is stated in the 2022 report:
[14] The Sudanese Nationality Act 1994', Citizenship Rights in Africa Initiative, 2018 amendments signed into law 30 December 2018, Article 4, 20200525121353.
Citizenship is currently governed by the 2019 Constitutional Document and by the Nationality Act 1994, as amended in 2005, 2011 and 2018…The 2019 Constitutional Document is partially suspended following the military coup of 25 October 2021 and no longer governs the political transition in Sudan. However, the citizenship provisions remain in force.
Section 10 of the 1994 Nationality Act, as amended in 2011 and 2018, provides that:
…(2)(a) without prejudice to section 4 sub-section 3, Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.
(b) the Minister may exempt any person from the application of section 2 (a) if it is proved that his ancestors domiciled in Sudan in or before the first of January 1924.
Section 16 also provides that: Without prejudice to Section 10(2), the President of the Republic may, upon application, reinstate nationality to any person whose Sudanese nationality was revoked.
While existing laws grant dual nationality for all other nationalities, Section 10 singles out the southern Sudanese as the only persons who will not be able to acquire dual Sudanese nationality. Furthermore, the Act does not provide for a 'transitional procedure' between the loss of Sudanese nationality and acquisition of South Sudan nationality so as to ensure that no person will be rendered stateless in the process and hence being denied the nationality of both north and South Sudan. This amendment resulted in rendering thousands of South Sudanese stateless, who arbitrarily lost their entitlement to nationality and citizenship rights. South Sudan also does not extend automatic nationality for the minority northerners who have resided in South Sudan for years. The nationality regimes of both countries do not institute any preferential treatment or pay particular attention to the plight of the thousands of vulnerable Sudanese after secession. Such legal regimes are inadequate and do not envisage any 'transitional regulations' that need to be in place to avert arbitrary loss of nationality and mitigate the risks and dangers that many Sudanese may be rendered stateless.
In reality, in the post secession period, many vulnerable groups have lost their citizenship rights and were rendered stateless, including southerners in the north…[Internally Displaced Persons (IDPs)] were also affected by the secession, in particular southerners who were living in the north whose legal status has been changed after secession, i.e. from IDPs to refugees. Accordingly, former IDPs were subjected to national immigration laws, which provide little legal protection to refugees in terms of due process of law in case they intend to reside legally in north Sudan.
However, the information before the Tribunal is that in accordance with the Comprehensive Peace Agreement (CPA), residents of the Abyei Administrative Area were to hold dual citizenship. Given the referendum proposed to coincide with the South Sudan independence referendum to determine Abyei’s status has not taken place to date, it appears that the agreement that residents of Abyei continue to be citizens of both Sudan and South Sudan until further decided by the referendum remains.
In September 2024, South Sudan said that long-awaited elections would be postponed for a further two years, once again extending a transitional period agreed in the peace deal, whilst key provisions of the transitional agreement remain unfulfilled – including the creation of a national constitution.[15]
[15] 'South Sudan postpones elections, extends transitional period', rfi, 14 September 2024, 20240916115359.
The South Sudan’s 2011 Transitional Constitution, with amendments through 2013, Article 1.2(b), states that the territory of the Republic of South Sudan includes the Abyei Area, the territory of the nine Ngok Dinka chiefdoms transferred from Bahr el Ghazal Province to Kordofan Province in 1905 as defined by the Abyei Arbitration Tribunal Award of July 2009 in the event that the resolution of the final status of the Abyei Area results in the Area becoming part of the Republic of South Sudan.[16]
[16] South_Sudan_2013.pdf.
Article 97.4(a) states that pending a final solution on its status Abyei Area, the territory of the nine Ngok Dinka chiefdoms transferred from Bahr el Ghazal Province to Kordofan Province in 1905 as defined by the Abyei Arbitration Tribunal Award of July 2009, is accorded a special administrative status under the Office of the President of the Republic of South Sudan and the members of the nine Ngok Dinka Chiefdoms of Abyei Area shall have an inalienable right to enjoy South Sudanese citizenship and nationality and all rights and freedoms guaranteed by this constitution.
The Tribunal is aware that the Transitional Constitution was again amended in 2015, but those amendments do not appear to affect these Articles.[17]
[17] Mark Deng, The ‘Intermestic’ Transitional Constitution of South Sudan Int’l J. Const. L. Blog, Apr. 13, 2025, at: and ssd182397.pdf.
The applicant became a Sudanese national by birth, having been born in Khartoum or north of Khartoum in Sudan in [year]. The issue is whether that Sudanese citizenship has been revoked since 2011 because the applicant has acquired, de jure or de facto, the nationality of South Sudan. The Tribunal considers that given the referendum has not yet occurred and by all accounts will not occur in the reasonably foreseeable future given the ongoing conflict between the SAF and the RSF in Sudan, the Transitional Constitution of South Sudan suggests that the Abyei Administrative Area is not yet a part of its country.
In the delegate’s decision, the delegate relevantly quoted Section 8(1) of South Sudan’s Nationality Act (2011), which provides that:
(1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements— (a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or (b) such person belongs to one of the indigenous ethnic communities of South Sudan.
Like the delegate, the Tribunal accepts that the applicant was born and grew up in or around Khartoum in Sudan. The Tribunal finds that, as at the date of this decision, if both of the applicant’s parents were born in the Abyei area, then, with respect to the delegate, they were not born in South Sudan and so s 8(1)(a) does not apply. That may change as a result of the proposed referendum, but it has not changed yet. This would mean that at the moment the applicant retains his Sudanese nationality (subject to s 8(1)(b)).
As such, whether the applicant has acquired the nationality of South Sudan is dependent on where his parents, grandparents and great-grandparents were born. If it was in the Abyei Administrative Area, that is not part of South Sudan at this time.
At the hearing on 16 April 2025, the applicant’s evidence was that his parents, grandparents and great grandparents were born in the Abyei area. However, there is information in the material from the Department, which was not referred to in the delegate’s decision, in which a person reported:
I have also reviewed [the applicant’s] parents’ [visa] application ([number], p. 81), which indicates his mother’s birthplace was Abyei (a region contested between present-day Sudan and South Sudan), and his father’s was [Town 2] (now located in South Sudan).
The country information is that [Town 2] is now located in Warrap State in the Bahr el Ghazal region of South Sudan.
Prior to the second hearing, the applicant was given an opportunity to comment on this information and advised in writing that he had no comment. The Tribunal does note that in the AAT 2022 Decision at [16] and [21], it was said:
When the Applicant was [age], his parents separated. He had [siblings], but they all died very young. He knows little about them and never met them. His mother remarried and has had [specified children] with his stepfather…It seems that his mother and stepfather are separated…
In 2006 the Applicant’s father died, but he does not know much about the circumstances. He had met him for the first and only time that he can recall a few weeks before this.
At the second hearing, the applicant confirmed that it was his stepfather who was born in [Town 2], he shares his stepfather’s surname and his stepfather adopted him. Whilst his biological father was born in the Abyei area and the applicant met him once in about 2005, the applicant now understands and accepts that he is South Sudanese because of his stepfather. The Tribunal accepts all of this evidence.
This accords with the applicant’s counsel in the matter previously before the Administrative Appeals Tribunal consenting to the position that notwithstanding ongoing territorial disputes between the two countries, the applicant would, by reason of his ancestry, be entitled to obtain South Sudanese citizenship and that he is a de facto or de jure citizen of South Sudan: see AAT 2022 Decision at [11] at [14].
The Tribunal has information from the Department that as of [April] 2024, the Sudanese embassy had advised that they consider the applicant to be South Sudanese and would not issue a travel document but that it was possible that the South Sudanese authorities may yet decline to recognise him as a citizen as the Department did not have a South Sudanese travel document for him and had no official confirmation of the applicant’s South Sudanese citizenship.
What is not before the Tribunal is what information was given to the Sudanese embassy to make this determination. There is an indication that the Sudanese Embassy was advised that the applicant does not have any Sudanese documents issued since 2011, but the Embassy asked if names and phone numbers of any relatives in Sudan and their identity documents such as a passport or the names and identity documents of relatives in Australia could be provided and that the applicant was happy for such information to be provided in relation to the applicant’s stepfather, his sister and his mother. The identity documents of anyone else in the applicant’s family are not in themselves before the Tribunal.
However, on the basis of the evidence of the applicant at the second hearing, the Tribunal finds that the applicant’s stepfather was born in [Town 2], which is now located in Warrap State in the Bahr el Ghazal region of South Sudan, and the applicant has acquired or has the right to acquire South Sudanese nationality and his Sudanese citizenship has been revoked. As such, the Tribunal finds the applicant is a national of South Sudan, which is also his receiving country for the purposes of refugee and complementary protection assessments.
Does the applicant satisfy the refugee criterion for protection?
This protection visa application has a unique feature in that the Tribunal accepts that the applicant previously considered himself Sudanese, and that since he left Sudan in 2008, the country has changed in his absence, with the creation of South Sudan in 2011 and the revoking of his Sudanese citizenship without any input from the applicant, meaning his receiving country has changed. In addition, the receiving country has changed to one the applicant would be imputed has having been against having served in the army of the country of his birth.
The Tribunal accepts that the applicant is one of the Ngok Dinka people. Accepting the 2016 DFAT Report, the Tribunal accepts that an individual’s ethnicity can often be identified by appearance, language, accent or name, and as such, the applicant’s ethnicity as a Ngok Dinka is identifiable by his appearance, even if he may be darker than most Dinkas, his language and his accent. The Tribunal also accepts that the applicant could be identifiable as non-Arab, through their dark-skinned appearance or otherwise.
100. Although according to the delegate’s letter, the applicant had declared in his Australian citizenship application [in] March 2017 that he had two known family members residing in South Sudan, a sister and a uncle, the Tribunal accepts the applicant’s written response that he last spoke with them in around 2017 and in 2023 when the Sudan war started the sister and uncle were in Khartoum, but nobody knows where they are now.
101. Like the delegate, the Tribunal accepts that it is plausible that the applicant would have lost contact with any connections in either Sudan or South Sudan due to the ongoing upheavals in both countries and that family networks are incredibly important in South Sudanese society. Unlike the delegate, the Tribunal accepts that the applicant has never lived in or visited South Sudan, because although it accepts that the applicant has visited the Abyei area, based on his evidence at the first hearing, visiting Abyei is not at this time the same as visiting South Sudan and so the Tribunal rejects that the applicant has any familiarity with South Sudan and is satisfied that the applicant is unfamiliar with the country.
102. The Tribunal accepts that the applicant served in the Sudanese military and that he performed security duties in the area of Port Sudan, but did not serve on the front lines against the South Sudanese, based on what the applicant said at the first hearing. Like the delegate, the Tribunal also accepts that the applicant, having been born and growing up in or around Khartoum in Sudan, the applicant could be identifiable as a person from the north, through their accent or otherwise. Based on the applicant’s evidence at the second hearing, the Tribunal also accepts that the Arabic language he uses would also identify him as a person from the north.
103. These personal features, his ethnicity and his origins, together with his age and gender, would raise the question of whether, being of a fighting age, the applicant had served in any military or para-military forces in Sudan in his lifetime. The Tribunal accepts that the applicant destroyed all of his SAF identity documents when he left the SAF without permission, but the Tribunal considers the fact that he served in the SAF puts him at odds with the government and opposition forces in South Sudan, as well as the RSF in Sudan and Abyei Administrative Area; and the fact that he left without permission puts him at odds with the SAF in the Abyei Administrative Area. His Ngok Dinka ethnicity puts him at odds with other Dinka factions and other ethnicities within South Sudan.
104. A ‘real chance’ of harm is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent (Chan Yee Kin v MIEA (1989) 169 CLR 379). The Tribunal accepts the country information above, from the 2016 DFAT Report to the latest travel warning from the Australia Government and based on this information considers that the chance of harm to the applicant in South Sudan is not remote or insubstantial or a far-fetched possibility if he returns there. He is at risk because of intercommunal violence because he is Dinka, and because he is Ngok Dinka; he is at risk because he is identifiable as being from the north; he is at risk because he served in another country’s armed forces; he is at risk because he served in the SAF and he is at risk because he left the SAF without permission.
105. The applicant would be returning to a country which he does not know and in which he has no known relatives or family connections to support him. The only area to which the applicant has any connection is the Abyei Administrative Area, but to travel there from Juba is to travel from the south of South Sudan to the border between Sudan and South Sudan in the north. The Tribunal repeats the accepted country information above that a UN peacekeeping force is trying to maintain peace and security in Abyei, but that the top half of the Abyei Administrative Area is controlled by the SAF and the bottom half is controlled by the SSPDF, with the RSF holding West Kordofan and East Dafur to the north and west in Sudan. The Tribunal also repeats the accepted country information above that the situation remains tense as intercommunal clashes continued and accounted for most of the security incidents reported, and there are reports of RSF incursions into Abyei territory.
106. South Sudan is a landlocked country and the airport in Juba seems the most likely entry for the applicant if he is returned, but there are doubts due to the current volatile situation, whether the airport will remain open and accessible. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
107. Given the heightened military presence in Juba and the checkpoints, both legal and illegal, in the country, based on the accepted country information above, the Tribunal does not consider that safe access is possible for the applicant to other regions in South Sudan. The Tribunal has considered the delegate’s findings that he was unable to identify any specific or particular characteristics possessed by the applicant that would bring him to the attention of the South Sudanese security apparatus or the general population, and that due to the number of Sudanese refugees residing in South Sudan, there would be difficulties in identifying him as a previous combatant. However, the Tribunal considers the volatile security situation in South Sudan which forces civilians to pass through legal and illegal security checkpoints in Juba and throughout the country mean that there is a real risk that the applicant will be subject to individual attention by the State authorities or opposing forces, at which time he will have come to their attention and his particular attributes noted. There is a real chance of harm in these circumstances.
108. The Tribunal finds that there is a real chance of harm to the applicant in the reasonably foreseeable future if he is returned to South Sudan in all areas of South Sudan, because there are people fighting Dinkas and there are factions within Dinkas; because although he has acquired South Sudanese citizenship, he is identifiable as a man from the north because of the way he speaks Arabic and his accent when speaking other languages and because he will be imputed with a political opinion because he served in the Sudan Armed Forces, even if he did not serve on the front lines in the Second Civil War between the northern and southern regions, and if he returns to Abyei because the SAF (which he left without permission) runs half of it, the SSPDF runs the other half, and the RSF are making incursions into that area.
109. The Tribunal considers the harm is for one of the reasons set out in s 5J(1)(a) of the Act, because it due to his race and ethnicity as a Ngok Dinka, his membership of a particular social group, being a South Sudanese man from the north or from an imputed political opinion because he served in the Sudan Armed Forces, and he left without permission. The Tribunal considers those reasons to be the essential and significant reasons for the persecution as required by s 5J(4)(a) of the Act.
110. The Tribunal accepts the country information that arrests of civilians and military officers have occurred and that there has been a rise in arbitrary arrests and detention, during which people have been denied access to lawyers, with torture and ill-treatment occurring in detention facilities. The Tribunal also accepts that there is ethnic hatred towards the Dinkas and ongoing communal violence, in which people can lose their lives and so the Tribunal finds the harm is serious harm, because there is a threat to the applicant’s life or liberty, the latter of which may involve significant physical ill-treatment.
111. The Tribunal also considers that the harm is serious harm because of a denial of access to basic services or the capacity to earn a livelihood of any kind, where the denial threatens the applicant’s capacity to subsist, based on the accepted country information above that official and societal discrimination linked to an individual’s ethnicity occurs as a result of the formal conflict between the Government and the SPLM-IO and due to informal inter-tribal conflict and the accepted country information that one of the top five severe protection risks was discrimination and stigmatization, denial of resources, opportunities, services and/or humanitarian access.
112. The Tribunal considers that the persecution of the applicant would involve systematic and discriminatory conduct as required by s 5J(4)(c) of the Act and there would be no effective protection measures, because the state authorities would persecute him, even though he is Dinka, because he served in the Sudan Armed Forces and is from the north, and the accepted country information that government control is only directly enforceable in small parts of the country. The Tribunal repeats the accepted country information that the United Nations is trying to keep the peace in the Abyei Administrative Area, but the country information states that intercommunal violence continues.
113. The Tribunal considers that there are no reasonable steps the applicant could take to modify their behaviour so as to avoid a real chance of persecution. This is because the applicant’s ethnicity, accent and manner of speaking Arabic and presentation as a person from the north are fundamental to the person’s identity or would require the applicant to conceal an innate or immutable characteristic. Whilst it might be reasonable for the applicant to not volunteer that he served in the Sudan Armed Forces, he cannot change the fact that he did, and if he otherwise comes to the attention of government authorities, those who oppose them or the general population of South Sudan, then his previous experience in the SAF gives him a real chance of being harmed.
114. For the reasons given above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Right to enter or reside in any other country
115. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act.
Under s 36(3), where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
117. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
119. The delegate did not make an assessment in relation to s 36(3) of the Act.
120. The Tribunal is satisfied that the applicant has no right to enter countries neighbouring South Sudan, including Uganda, Ethiopia, the Central African Republic Sudan or Kenya. As a result of South Sudanese citizens not having a right to enter these countries, there are large refugee camps on the borders of these countries where hundreds of thousands of South Sudanese citizens reside.
121. In those circumstances, the Tribunal is not satisfied that s 36(3) applies to the applicant.
DECISION
122. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing: 16 April 2025 and 30 July 2025
Representative for the Applicant: N/A
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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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