Dqe21 v Minister for Immigration, Citizenship and Multicultural Affairs - [2022] FedCFamC2G 455

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQE21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 455

File number: PEG 225 of 2021

Judgment of: JUDGE KENDALL

Date of judgment: 10 June 2022

Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider an integer of a claim – whether the Tribunal failed to give adequate reasons for its decision – whether the Tribunal failed to give sufficient weight to the applicant’s evidence – no jurisdictional error – application dismissed.

Legislation:
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 12.01

Migration Act 1958 (Cth), ss 5H, 5J, 36, 430 and 476

Cases cited:
Abebe v Commonwealth of Australia [1999] HCA 14

ABT16 v Minister for Home Affairs [2019] FCA 836

AGD15 v Minister for Home Affairs [2019] FCA 896

Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62

DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897

Fox v Percy [2003] HCA 22

Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392

Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 1827

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253

Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167

Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1916

SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376

Division: Division 2 General Federal Law

Number of paragraphs: 138

Date of hearing: 14 March 2022

Place: Perth

Counsel for the Applicant: Mr J-P Redmond

Counsel for the First Respondent: Mr V Ghosh

Second Respondent: Submitting appearance, save as to costs

Solicitor for the Respondents: Minter Ellison
ORDERS

PEG 225 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
DQE21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE KENDALL

DATE OF ORDER:

10 JUNE 2022

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION

This matter has a lengthy and rather complex history.
The applicant is a citizen of Sudan (Court Book (“CB”) 21). He arrived in Australia in October 2008 as the holder of a Partner (Provisional) (Class UF) (Subclass 309) visa (CB 366).
On 25 February 2011, the applicant was granted a Partner (Migrant) (Class BC) (Subclass 100) visa (CB 366) (the “partner visa”).
On 17 April 2012, the applicant was arrested and charged with the murder of his wife

(CB 115-116).
On 6 December 2013, a jury returned a verdict of not guilty of murder, but found the applicant guilty of manslaughter (CB 116).
On 21 March 2014, the applicant was sentenced to 12 years imprisonment (consisting of a non-parole period of nine years commencing on 17 April 2012 and concluding on 16 April 2021, with a balance of three years expiring on 16 April 2024) (CB 114).
On 1 April 2019, a delegate of the first respondent (the “Minister”) cancelled the applicant’s partner visa (CB 107).
On 5 May 2021, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 129-153). In that application, the applicant claimed to fear harm from his late wife’s family who have “threatened to kill him if he returns to Sudan because they want revenge for her death”. He also claimed to fear harm from the “Muslim brotherhood” who will “torture” and “kill” him because they believe him to be a traitor and will “want to make an example of him to those who marry non-Muslim women” (CB 147).
On 17 May 2021, a case officer from the Department of Home Affairs (the “Department”) interviewed the applicant at Villawood Immigration Detention Centre (“VIDC”) (CB 187).
On 1 June 2021, the Department requested that the applicant provide more information in relation to his visa application (CB 203-209). Specifically, the Department asked the applicant (CB 209):
Is there any reason you would not be able to legally and safely access and reside in any other places such as Omdurman, Gedaref or Port Sudan?
On 4 June 2021, the applicant responded to that request by way of letter (CB 210-211).
On 17 June 2021, a delegate of Minister refused to grant the applicant the visa (CB 216-241). The delegate was not satisfied that the applicant faced a real chance or a real risk of serious or significant harm in Sudan (CB 240).
On 22 June 2021, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 242-247).
On 12 July 2021, the Tribunal invited the applicant to attend a hearing on 27 July 2021 (CB 285-296).
On 14 July 2021, the Tribunal sent a Summons Notice to the Department requesting that material relating to the applicant’s partner visa cancellation be provided by 28 July 2021 (CB 297-300).
On 27 July 2021, the applicant attended a hearing before the Tribunal. The applicant was assisted at the hearing by an interpreter in the Arabic language (CB 305-308).
On 29 July 2021, the Tribunal invited the applicant to attend a resumed hearing before it on 2 August 2021 (CB 309-314).
On 12 August 2021, the Tribunal was advised that the applicant had been transferred out of VIDC (CB 321).
On 13 August 2011, the Tribunal invited the applicant to attend a rescheduled hearing before it on 17 August 2021 (CB 326-333).
On 16 August 2021, the hearing scheduled to take place on 17 August 2021 was cancelled due to interpreter unavailability (CB 339).
On 19 August 2021, the Tribunal invited the applicant to attend a rescheduled hearing before it on 27 August 2021 (CB 340-348).
On 27 August 2021, the applicant attended a resumed hearing before the Tribunal. The applicant was assisted at the resumed hearing by an interpreter in the Arabic language (CB 352-354).
On 15 September 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 365-394).
On 15 October 2021, the applicant filed an application for judicial review of the Tribunal’s decision with this Court (CB 1-6). That application is made pursuant to s 476 of Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29]-[32].
The Tribunal’s decision here is 30 pages long and spans 160 paragraphs. It also includes three pages containing extracts of relevant legislative provisions.
The Tribunal began by identifying the type of visa under review, summarising the applicant’s protection claims (at [1]) and detailing the applicant’s migration history (at [2]-[7]).
The Tribunal then summarised the relevant law and principles of review. The Tribunal:
(a)explained that the criteria for a protection visa are set out in s 36 of the Act (at [10]) and the alternative criteria are outlined in ss 36(2)(a), (aa), (b) or (c) of the Act (at [11]);
(b)detailed the refugee criterion under s 36(2)(a) of the Act, relevant definitions under ss 5H and 5J of the Act and related case law (at [12]-[16]) (including Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 (“Chan”) and Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4);
(c)outlined the complementary protection criterion under s 36(2)(aa) of the Act (at [17]) and relevant definitions under ss 36(2A) and (2B) of the Act (at [18]);
(d)described the statutory elements which must be made out (at [19]) (referencing Abebe v Commonwealth of Australia [1999] HCA 14 (“Abebe”)) and explained that the “Tribunal is not required to seek out evidence to support an applicant’s claim” (at [20]) (referencing ABT16 v Minister for Home Affairs [2019] FCA 836);
(e)reviewed the mandatory considerations, including the “Refugee Law Guidelines”, “Complementary Protection Guidelines” (in accordance with Ministerial Direction No. 84) and country information reports prepared by the Department of Foreign Affairs and Trade (at [21]);
(f)confirmed that it had had regard to the President’s Directions “COVID-19 Special Measures Practice Direction – Migration and Refugee Division” and “Conducting Migration and Refugee Reviews” (at [22]); and
(g)outlined its reasons for exercising its discretion to hold the hearing via video link, noting that the hearing had been rescheduled on a number of occasions due to interpreter issues. The Tribunal also confirmed that it was satisfied that it was reasonable to do so, particularly given that the applicant was in detention (at [23]) and as it was satisfied that the applicant had been given a “fair opportunity to give evidence and present arguments” (at [24]-[25]).
The Tribunal then stated:
26.The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicant, sentencing comments of Garling J in the criminal matter before the Supreme Court of NSW, evidence to this Tribunal and independent sources about Sudan. While the sentencing comments in his criminal matter have been considered in regard to information provided to the Supreme Court about the applicant’s background, and in regard to credibility (discussed further below), the fact of his criminal conviction is not a factor relevant to whether he meets the criteria for a protection visa (other than in regard to his fear of family members) and has not been taken into consideration in making negative findings in this matter.
The Tribunal confirmed that the applicant had provided details of his protection claims in his visa application and that he had attended a Departmental interview on 17 May 2021 (at [27]).
The Tribunal then summarised the applicant’s evidence provided to the Department (at [28]) as follows:
(a)the applicant was born in Sudan and lived there until 2008. In 2008 he travelled to Egypt en route to Australia (at [29]);
(b)the applicant’s (now deceased) wife was also born in Sudan. She arrived in Australia in 1995, acquired Australian citizenship in 1997 and departed Australian in 2003. She married the applicant in December 2003. They lived in Sudan until 2008 and their first two children (a son and a daughter) were born in Sudan (at [30]);
(c)the applicant and his wife left Sudan for Egypt in 2008 and remained there until October 2008 when they left for Australia. The applicant’s wife sponsored him for the partner visa and they had a third child in Australia in 2010 (at [31]);
(d)their children live with their mother’s family and are Australian citizens (at [32]);
(e)the applicant’s parents have passed away but he has two sisters and a maternal cousin in Sudan that he has good relationships with. The applicant had another sister who passed away prior to the Departmental interview in “mysterious circumstances” (at [33]);
(f)the applicant started (but did not complete) high school in Khartoum, completed a trade course between 1975 and 1977, worked from 2005 to 2007 as an electrician and was then unemployed. In Australia he worked as a supervisor in New South Wales from January 2010 to April 2012 (at [34]);
(g)he claimed (in his visa application) that he left Sudan due to conflict between Muslims and Christians and that he was “pursued and threatened with death by Islamic groups, such as the Muslim Brotherhood” because of his marriage to a Christian woman (at [35]);
(h)his family did not allow him to “live or work” and he feared for his family “all the time” (at [36]);
(i)the applicant claims he decided to leave Sudan for Australia after he was “shot at while with some friends” (at [37]);
(j)he claims to have been “threatened hundreds of times”, faced difficulty finding work or housing and did not seek help within Sudan as he was “afraid due to the government and chaos … in the country”. The applicant also claimed that the authorities do not assist in situations of revenge and will “deliver” him to his wife’s family (at [38]). Further, he is unable to relocate in Sudan as it is “the same everywhere” and “many people will know” when he returns (at [39]);
(k)the applicant claims his sisters do not know his wife is dead (though other family members know). He claims “his life is in great danger” because of his late wife’s family – who have said that they want revenge for her death and have promised to kill the applicant if he returns to Sudan (at [40]);
(l)he claims that the Muslim Brotherhood would “torture him and kill him” on the basis that he is a “traitor” and will want to make an example of him to men who marry outside the Muslim faith (at [41]);
(m)when asked why he could not move to an area like Omdurman, Gedaref or Port Sudan, the applicant claimed that he has no documentation and cannot obtain any because of the corrupt government and because people are “watching and waiting” for his return (at [42]);
(n)the applicant told the Department that he was always on the run in Sudan, that people were always after him and that they would come to search his house. He also claimed that he was arrested without knowing why and that the Islamic Front wanted him to join them and once “pulled out a pistol” when he refused to join. He also claims to have had to continuously relocate for a period of 10 years due to the Islamic Front finding him (at [43]);
(o)he claimed he cannot return to Sudan due to the “current situation” and the “guy who is in control” (at [45]);
(p)the applicant claims his “father’s side were against him” as he did not choose a bride “from their side”, they did not attend his wedding and are “not in contact” (at [46]);
(q)his family in Sudan know that his wife is dead but do not know the circumstances. He claims that he received threats from his late wife’s family (who called his sisters). Upon his advice, one of his sisters relocated to Egypt and the other told him not to travel to Sudan in 2014 as “people have said they will kill him” (at [47]);
(r)the applicant claims to be a “different person” since being in prison and has completed courses about domestic violence (at [48]); and
(s)in his response to the Department dated 4 June 2021, he claimed to have been “tortured, arbitrarily detained and suffered forced disappearance” at the hand of the government (at [49]).
The Tribunal explained that the Department had cancelled the applicant’s partner visa on 1 April 2019 because it was “satisfied that the applicant did not pass the character test” (as he had a substantial criminal record, had been sentenced to more than 12 months imprisonment and was, at the time, serving a sentence of imprisonment (at [50])).
The Tribunal detailed the sentencing remarks of Justice Garling in the Supreme Court of New South Wales relating to the applicant’s manslaughter charge, noting that the applicant had been “covertly recording his wife’s conversations”, “his wife was in bed when attacked” and the applicant had “brutally attacked” her “with a large knife, stabbing her at least 14 times” (at [51]).
The Tribunal continued:
52.Garling J found that the applicant was an ‘unimpressive witness’. The judge found the provocation to be at the lower end of the scale and the attack to be vicious and brutal and completely excessive. He said that:
Frequently, he gave answers which were inconsistent with evidence which he had earlier given, he gave answers which were evasive, and I thought deliberately so, on some occasions, and he displayed a degree of resentment in having to answer questions which challenged any answer or explanation which he had given. For example, in one account in evidence, he said that on the evening of her death, his wife attempted to commit suicide, and that he sustained his arm injury trying to stop her. Another account suggested that she attacked him whilst he was asleep and he sustained the injury when he was defending himself and prior to removing the knife from her. These accounts cannot stand together. Accordingly, I am not able to accept his evidence simply because he has given his account of what happened. To the extent that objectively, or else independently, established facts contradict his evidence, I have generally accepted those facts. In following this course, I bear in mind that any finding which is adverse to (the applicant) must be one of which I am persuaded beyond a reasonable doubt.
The Tribunal explained that the applicant had appeared before it via video link from Yongah Hill Immigration Detention Centre on 27 August 2021, with the assistance of an interpreter (at [53]).
The Tribunal then provided an overview of the evidence before it (as relevant to its findings) (at [54]), summarising the applicant’s “background and family circumstances” as follows:
(a)the applicant was born and grew up in Khartoum and his family is from a mixture of tribes (at [55]);
(b)his father was in the army and passed away when the applicant was young. His mother sold food in a stall and passed away in 2007 (at [56]);
(c)he had three sisters but one passed away recently. The remaining two sisters live together in Kartoum and are unemployed. One is married and the other is separated (at [57]);
(d)the applicant has two brothers from his father’s second wife, both living in Khartoum. One runs a shop and the other is unemployed. Prior to his incarceration, the applicant was in regular contact with them and sent them money (at [58]);
(e)he has extended family (aunts, uncles and cousins) living in Khartoum. The applicant came from a Christian and Muslim family with his father’s family being strict Muslims and his mother’s family being Christian. The applicant claims they had no contact with relatives when his parents were married and claims to have little contact with them, including the cousin he mentioned in “his Department papers” (at [59]);
(f)the applicant’s mother converted to Islam and his siblings were raised as Muslims, although his mother’s family are strict Christians. As children, they did not attend mosque regularly but practiced Ramadan. The applicant is still a practising Muslim (at [60]);
(g)he quit school when his father passed away to help his mother at her shop and later completed an electrical apprenticeship. He worked as an electrician until he travelled to Australia and, in Australia, worked in the waste sector (at [61]);
(h)prior to coming to Australia, he and his wife lived with his mother in a rented house and he sold another house prior to moving to Australia (at [62]);
(i)the applicant’s wife was a relative from a Christian family. Her family moved to Australia when she was eight and they started to communicate with each other. His wife travelled to Sudan in 2003 and they married in Khartoum with about 150 people in attendance (who were friends and neighbours). The applicant claims that his and his wife’s families did not attend because they did not agree with the wedding. When asked, the applicant claimed not to know why his wife’s family sent her to Sudan if they did not approve of her marriage. He also claimed to be unaware of his wife’s age (at [63]);
(j)the applicant claimed that his family opposed the marriage because “they wanted him to marry from the family”. When asked why his family would not approve of him marrying his wife as she was a relative, the applicant said his father’s family wanted him to marry a Muslim and, although his wife converted to Islam before they were married, they still opposed the marriage (at [64]);
(k)he claimed that close members from his father’s family attended the wedding but not those “further away” and that his mother, sisters and brothers attended. The applicant also said that he could not remember who attended as it was “a long time ago” (at [65]);
(l)the applicant said that his mother-in-law, brother-in-law and two sisters-in-law live in Australia but his father-in-law returned to Sudan and he has no other relatives in Australia. His father-in-law and extended family are now living in Sudan and he had “some kind of relationship” with some of them. However, while he was willing to have a good relationship with them, they did not want to do so (at [66]); and
(m)he felt his parents’ relatives did not accept him and, while his mother and sisters agreed with his marriage, his mother said that he was “putting himself in the same type of problem” again (at [67]).

The Tribunal then detailed the applicant’s evidence before it regarding his “reasons for departure from Sudan”, as follows:
(a)he travelled to Egypt in 2008 due to “problems with the Muslim Brothers, who were causing [him] trouble”, which he explained as monitoring his movements, often coming to his house, threatening him and pointing a gun to his head. He explained that they approached him in 2007 and that they “perceived him in a bad way” because he was married to a Christian and was a traitor to his religion. The applicant claimed he could tell they were Muslim Brothers from the “way they dressed and the cars they drive without number plates” (at [68]);
(b)the applicant claimed that the Muslim Brothers first approached him 10 years prior and did so continuously until he came to Australia. He claimed his age was not an issue for them because he was a trusted embassy staff member. When the situation got “really bad” he sold his house and moved to a different house and then “all over to different places”. When questioned about his earlier evidence that he lived in Khartoum the whole time he was in Sudan, the applicant claimed that he moved houses almost every year (staying a maximum of one and a half years in one house) and was “constantly on the move” and was “taken into detention on many occasions” (at [69]);
(c)he claims that he was scared to tell the Muslim Brotherhood that he did not want to join them and instead kept “negotiating with them in a calm way”. He claimed it happened for many years and he “felt very threatened” by guns pointed at his head. Further, they would come to his house and cause him embarrassment in front of his neighbours. The applicant also claimed to have been detained for four or five days at a time on seven or eight occasions and he could not complain to anyone (at [70]);
(d)when asked, the applicant said that he did not know the name of the leader of the Muslim Brotherhood at that time (at [71]);
(e)he knew for sure that it was the Muslim Brotherhood who followed him and shot at him as they “did not look like poor thieves” and were “wearing good clothes” (at [72]); and
(f)he and his wife moved to Egypt with an intention to travel to Australia (at [73]).
The Tribunal then outlined the applicant’s evidence before it regarding his “fear of harm” as follows:
(a)when asked if he still feared the Muslim Brotherhood, the applicant said that he “wants to say one thing. If I ever go to Sudan I swear by Allah I will not go out of Sudan again. I will be trapped from both sides, either the family or the Muslim Brothers would shoot me” (at [74]);
(b)he did not apply for protection earlier as he had permanent residency and “did not know about the law” (at [75]);
(c)the applicant claims to have changed since being in prison, having done a number of courses and he is “sorry for what happened and [was] very tired”; and
(d)the Tribunal noted that it gave him with a week to provide any further information or submissions to the Tribunal, however, no further evidence was provided (at [76]).
The Tribunal confirmed that it had considered relevant country information and media reports from a variety of sources (at 77]).
The Tribunal then outlined the delegate’s findings, as follows:
78.The delegate of the Department was not satisfied that the applicant would be persecuted by the Muslim Brotherhood or that his name was on a blacklist or that he would be targeted by the government.
79.The delegate accepted that the applicant received verbal threats from his wife’s family in 2014. The delegate was satisfied on basis of country sources that under retributive justice principles under the Criminal Act 1991, Sudan, or ‘qisas’ under Shariah law, he would be subject to payment of diya as compensation. The delegate was not satisfied that there was a real chance of serious harm or a real risk of significant harm from his wife’s family.
The Tribunal continued:
80.In determining whether the applicant meets the refugee or complementary protection criteria, the key issues are:
•Whether the incidents he described in Sudan took place, such as targeting by the Muslim Brotherhood or by the authorities (findings of fact).
•Whether there is a real chance of serious harm or a real risk of significant harm from members of the Muslim Brotherhood.
•Whether there is a real chance of serious harm or a real risk of significant harm from the Sudanese authorities.
•Whether there is a real chance of serious harm or a real risk of significant harm from his wife’s family members.
•Whether the applicant could relocate within Sudan.
The Tribunal then outlined the legislation in relation to complementary protection and the removal of a person to his or her receiving country (at [82]).
On the evidence before it, the Tribunal was satisfied that the applicant was a Sudanese national and that Sudan was his “receiving country” (at [83]).
The Tribunal identified that, in this matter, it needed to make findings of fact in relation to whether the applicant had suffered harm from the Muslim Brotherhood or the authorities in Sudan and whether his late wife’s family did not in fact accept their marriage and had threatened him (through his sisters) in 2014 or 2015 (at [84]).
The Tribunal recognised that the assessment of credibility was a difficult task and that there were special considerations in relation to asylum seekers (at [85]). The Tribunal then detailed the applicable legal principles relevant to applicant credibility, noting that it would be guided by the “observations and comments” of the High Court and Federal Court (referencing (at [85]-[88]), in particular, the decisions in Fox v Percy [2003] HCA 22; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 and Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167).
The Tribunal also explained that the Courts have suggested that the “benefit of the doubt” ought to be given to those who are “generally credible but unable to substantiate claims (citing SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1916 and noting that a similar approach is taken in the Department’s Refugee Law Guidelines and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (at [89])).
The Tribunal confirmed that it would be guided by these judicial decisions and research and commentaries and noted difficulties faced by refugee applicants (including issues with interpreters, stress and nervousness). The Tribunal also acknowledged that memory issues may result from time lapses, trauma or cultural issues and that dates, locations, events and personal experiences may be forgotten for a number of reasons. The Tribunal also explained that “great care must be taken to ensure that the approach taken to credit assessment is reasonable, reflective and fair” (referencing the Tribunal’s Guidelines on the Assessment of Credibility and highlighting the need to evaluate the applicant’s evidence as a whole (at [90])).
The Tribunal continued:
91.The Tribunal has had particular regard to the Tribunal’s Guidelines on Vulnerable Persons, in light of the fact that the applicant was in prison for 10 years and detention for five months since then. Although no medical evidence has been provided, clearly prison and detention can be stressful environments which are likely to have had significant psychological impact on the applicant. The applicant has referred to seeing a ‘psychologist or psychiatrist’, and to medical problems he has, including diabetes, heart problems and high blood pressure. The applicant also referred to the emotional impact of being ‘deprived of his children’ while in prison. He said that they are ‘the most precious thing to him’ and he has not seen them for nine years. He said that his whole life has been turned upside down, and he sleeps with tears in his eyes.
92.The Tribunal notes that the applicant’s evidence at the Tribunal hearing appeared to be lucid and he was able to answer questions without difficulty. He did not claim to be adversely affected on the day of hearing by any of his medical issues although he said that he sometimes finds it difficult to remember. The Tribunal has taken into consideration the subconscious impact that his psychological and physical state, including separation from his children, may have had on his memory and evidence generally. The Tribunal accepts that his memory may not be perfect and has assessed his evidence accordingly.
Under the heading “Findings of fact – Muslim Brotherhood”, the Tribunal explained that it was satisfied that the applicant had been approached for recruitment by the Muslim Brotherhood and detailed the Oxford Dictionary of Islam entry in relation to that organisation (at [93]).
The Tribunal noted that the Muslim Brotherhood had dominated Sudanese politics at the relevant time and found it “conceivable … that they were interested in recruiting [the applicant]” (at [94]). The Tribunal was not, however, satisfied that the Muslim Brotherhood had targeted the applicant because he was married to a Christian woman or because he refused to join them. Further, the Tribunal was not satisfied that the applicant had been threatened, shot at or detained or that he was on a blacklist or moved houses to avoid the Muslim Brotherhood (at [95]).
The Tribunal continued:
96.Firstly, the applicant’s evidence about the experiences he had with the Brotherhood was inconsistent in the account provided in his application and in the Departmental interview to the extent that the Tribunal was satisfied that the evidence had been fabricated for the purposes of the refugee claim. For example, at the interview with the Department for this protection visa, he claimed that he could not return to Sudan as his name is on a blacklist for people not allowed to travel, possibly because he worked at embassies. At the Tribunal hearing he was asked why he had not mentioned this blacklist in his application form or at the Tribunal. He responded that his name was on a blacklist which he said would have been definitely arranged by the Brotherhood, although he does not know this for certain. He said that he had no criminal record in Sudan, but the Brotherhood wanted to prevent him from going out of the country. Asked how he knew he was on this blacklist, he said that when he took his passport to apply for a visa, he was told his name was on a blacklist. Asked how he was then able to obtain a visa, he said that he went to ‘someone he knew’ who told the authorities that he had no criminal record, and ‘that was when they checked and found nothing’ against him. He said that the Muslim Brotherhood did not want him to go. The Tribunal asked him how he was then able to get a passport and visa and leave the country without any difficulty. He said that they ‘put the obstacles in front of him but they had nothing against me’. He said that he spoke to some ‘high people in government’ to be removed from the list and then apply for his visa. He said that he spoke to the ‘Brigadier General in the Police force’. He said that he was ‘arrested in the police station’ and ‘they said they would help me or release me’. If the applicant had been on a blacklist, the Tribunal is of the view that this would have been an important element of his evidence, and he would have referred to it in his application and to the Tribunal. It is also difficult to understand how he was able to have consistent work in Sudan if he was on such a blacklist, and how he was able to get a passport and visa and travel without difficulty, given connections at the time between the Brotherhood and the authorities.
97.Furthermore, in his application form for the protection visa the applicant stated that the Muslim Brotherhood wanted to kill him because he married a Christian woman. He did not refer to his fear of being harmed by the Brotherhood because they were trying to recruit him. At his Department interview by contrast, he claimed that the Brotherhood were after him as they had tried to recruit him for many years. He told the Tribunal that the Brotherhood were angry with him for both reasons, because he married a Christian and because they wanted to recruit him. He also told this Tribunal that he was detained seven or eight times and was held for four or five days on each occasion, which is evidence he did not adduce to the Department.
98.At the Tribunal hearing, the Tribunal put the inconsistencies to the applicant under the natural justice provisions in the legislation. He responded that he cannot remember why he did not mention blacklisting or detention earlier, but in regard to the detentions, it may have been that he was not asked questions about it by the Department delegate. The Tribunal is not satisfied that if the Brotherhood were angry about him not joining, and that he had been detained seven or eight times and held for four or five days on each occasion, that he would not have mentioned this in his application and to the Department, as they are central elements of a claim of persecution. He also told the Department that he did not know why the Brotherhood wanted to recruit him, but he told the Tribunal it was because he had access to embassies where he worked. It is not clear why he would have told the Department that he did not know the reason, when he provided a reason to the Tribunal, which does suggest that his evidence has been provided to bolster his claim.
The Tribunal acknowledged that “not all memory deficit correlates with lack of truthfulness” and took into account the applicant’s “long time in prison” and “separation from his children”. The Tribunal also noted that, “although an asylum seeker may lie or exaggerate one part of the evidence, this does not mean it is all untrue” (referencing, in particular, the decision in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 and comments made by Professor Hathaway in The Law of Refugee Status (at [99])). The Tribunal also noted (at [100]) that a similar conclusion had been reached by Gummow and Hayne JJ in Abebe.
The Tribunal ultimately found as follows:
101.The Tribunal is not satisfied however that such significant events as blacklisting and detention on numerous occasions, as well as motivations for harm, would not be consistently recalled, when considering the evidence as whole. It is when considering the significance of the inconsistencies within the context of the evidence in its entirety, discussed further below, that the Tribunal reaches a level of satisfaction that these events did not occur. After considering the evidence, the Tribunal is satisfied that the omissions and inconsistencies are material to the applicant’s claims and lead to an adverse finding of credibility, rather than being instances of exaggeration or yielding to a temptation to embroider. For example, if the applicant had been targeted by the Brotherhood for recruitment, then this is an element of his claims which it is likely he would have mentioned in his application, as at the Tribunal he said it was one of the reasons he was targeted. Further, it is likely he would have referred to the detentions consistently as an important element of his claim of persecution. Although the Tribunal is guided by the principle that the benefit of the doubt should be given to applicants, guidance suggests that this is where the evidence is generally credible, however, in this case the Tribunal is not satisfied that the applicant is generally credible, given the centrality of the inconsistencies to his claims, and his lack of credibility discussed further below.
102.A second consideration in reaching a finding that the applicant was not targeted for harm by the Brotherhood, when considering his inconsistencies in evidence, was that His Honour Judge Garling has indicated that the applicant has a propensity to provide different accounts of evidence. In the sentencing comments on his criminal trial, Garling J stated as follows:
I found Mr Hassan to be an unimpressive witness. Frequently, he gave answers which were inconsistent with evidence which he had earlier given, he gave answers which were evasive, and I thought deliberately so, on some occasions, and he displayed a degree of resentment in having to answer questions which challenged any answer or explanation which he had given. For example, in one account in evidence, he said that on the evening of her death, his wife attempted to commit suicide, and that he sustained his arm injury trying to stop her. Another account suggested that she attacked him whilst he was asleep and he sustained the injury when he was defending himself and prior to removing the knife from her. These accounts cannot stand together.
The Tribunal confirmed that it had put these comments to the applicant for comment at the hearing, noting that they suggested that the applicant would provide different accounts of evidence “as needed” – which may lead to a conclusion that the applicant’s evidence is “not true and accurate”. The applicant told the Tribunal that “at the end of the day, the truth remains to be the truth” and he is “only human and can make some mistakes”, is “not a computer” and “sometimes forgets details” (at [103]).
The Tribunal then stated:
104.The Tribunal does not have the full transcript of the trial before it but notes that Garling J concluded that the applicant provided different accounts of the evidence and was an unimpressive witness. The applicant told the Tribunal that he did not have a ‘single charge’ in gaol and has done courses on domestic violence. The Tribunal accepts that he may have made some positive changes in his life, but notes that before this Tribunal as well, different accounts have been provided as discussed earlier. An example of the applicant providing evidence which was not credible, was him telling the Tribunal that he did not know that his wife was aged 16 when he married her, even though he also told the Tribunal that his wife’s family did not accept the marriage because the other sister had also married young. When asked by the Tribunal if there was a marriage certificate which indicated her date of birth he agreed there was, then said that he was not sure if it was true. While not central evidence in regard to this application for review, this evidence does indicate a propensity to present inaccurate evidence. The Tribunal accepts as claimed by the applicant that memory is generally very imperfect, and people make mistakes, but does not accept that he would forget significant events such as detention, or that he would provide a number of different accounts of evidence, unless he was trying to advance his case, without adhering to the truth of what took place.
The Tribunal noted that the applicant was unable to name the leader of the Muslim Brotherhood and did not “provide the kind of detail about the Brotherhood which would have been expected of a person being targeted by them”. The Tribunal acknowledged that there may have been other explanations for the lack of detail and that it needed to be mindful of requiring “too high a standard when assessing level of knowledge”. However, the Tribunal expected that if the applicant were being troubled by the Muslim Brotherhood or the authorities, he would recall the leader or “provide some detail about the organisation”. While the Tribunal considered it was entitled to have regard to the applicant’s level of knowledge (citing Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 1827), given that the applicant’s recall might have been affected by the passage of time and “psychological trauma”, the Tribunal gave this “some but not significant weight” (at [105]).

The Tribunal continued:
106.Fourthly, the applicant’s evidence in his application for a spouse visa in Australia suggests that he was living in one place rather than moving around to escape the Brotherhood, and also suggests stability rather than fear of the Brotherhood or isolation from family members. He provided information which suggested that he was living in one place, rather than moving around, and he omitted mention of being on the run because of targeting by the Brotherhood. He said that ‘after the marriage, we lived in our place in Khartoum ... We rent a flat in Mohandessin’. In his interview with the Department, he said that there were 100 people at his wedding and his wife’s aunt Salwa, her uncle Adel and uncle Fawzy attended. His mother, sisters, half-brother Mohamed, uncles, aunts, cousins and friends attended. In his interview for his spouse application the Department delegate asked the applicant why he decided to migrate to Australia. He answered that he had been looking after his mother, but she died in 2007 and after that he had no reason to stay in Sudan and all of his wife’s relatives were living in Australia.
107.At the Tribunal hearing, the Tribunal put to him under the natural justice provisions that there was no suggestion in his spouse application that family members did not attend the wedding or that they disapproved of the marriage as he had suggested at the Tribunal. Further, there was no suggestion that he was constantly moving houses to escape the Brotherhood and he did not mention being targeted by them. He did not refer to problems with the Muslim Brotherhood or being on the run for 10 years or being detained regularly. At the Tribunal hearing, the Tribunal suggested to him that these may have been matters he would have raised if in fact they had happened.
108.The applicant responded that he meant that approximately 100 people attended his wedding. In regard to the auntie who attended, he said one auntie agreed to the marriage. The wedding was at her house. He said that the people who came to the wedding were all Muslims. He said that he had contact with some of the family but not all of them. He said that it is perhaps 16 years since he has had contact with some of them. He has now spent nine years in gaol and his memory is not that good. He said that he married his wife and they had an apartment. He spent all the money he had and took care of her. He said that when he left Sudan he left with ‘lots of problems and did not want to leave documents which would cause him to stay’. He said that he did not bring any documents and wanted to put all his troubles behind him. He said that in Egypt the Muslim Brotherhood’s problems still were going on. He was still scared in Egypt that they would find him. He felt safe in Australia.
The Tribunal accepted that “memory is fallible”, was not concerned that the number of wedding guests that the applicant provided was different and accepted that the applicant and his wife “may have had poor relationships” with family members. However, the Tribunal did not consider that the applicant’s response explained why he did not tell the Department of his troubles with the Muslim Brotherhood or family members in Sudan, or that he had “moved around constantly”, noting that his spouse application suggested that he lived in only one place. The Tribunal also noted that the evidence in relation to the spouse application suggested that the applicant and his wife had moved to Australia following his mother’s death to “join his wife’s family” rather than due to “fear of harm from the Brotherhood” (at [109]).
The Tribunal continued:
110.Fifthly, Garling J in the Sentencing Remarks in his criminal trial provided a summary of the applicant’s background in Sudan, which presumably was provided by the applicant, or through health or legal professionals, which also indicated a stable environment in Sudan. Judge Garling stated: ‘he grew up in the Sudan in what seems to have been a loving family. He left school at age 14 to work and help support his family. He worked in the Sudan as an electrical technician. Although his work occasionally took him to the areas of conflict, he lived away from these areas, and generally stayed away from war zones. He lived in an area which was relatively safe. He was good at his work and made friends with some of his customers … with the exception of the conflict within his marital relationship and his inability to get along with his wife’s family, he seems to have had a relatively normal life.’
The Tribunal put this information to the applicant, noting that the information provided to the Court during the applicant’s criminal trial suggested that he had lived a “fairly safe life in Sudan”, with a “good job” and no “major problems”. The Tribunal put to the applicant that the differing versions of events might suggest that “he had bolstered his evidence to support a refugee claim (at [111]).
The Tribunal continued:
112.The applicant responded that ‘for me, my life after I arrived in Australia, the past is a dark era in my life, a black page, and I turned it over, and I wanted to forget it. It did not occur to me that I would have to talk about that again’. He said that it was daunting for him to talk about matters in the past. He said it is like seeing someone smiling but inside they are in pain. The Tribunal acknowledges that it may be difficult for the applicant to talk about his past, however, as he was legally represented, it would have been reasonable for him to tell the Supreme Court about difficulties in his past in relation to mitigation of sentence. For example, it would have been of relevance that he was shot at, that he was detained on a number of occasions, or that he was threatened so had to move around constantly. The Tribunal does not have the full transcript before it so has given some but not significant weight to this factor, when considered alongside the other evidence, in finding that the applicant was not targeted for harm while living in Sudan.
The Tribunal noted Canadian research about “subconscious influences on credibility findings” and explained that the Tribunal was “conscious of not having unreasonable expectations” (at [113]).
The Tribunal reflected on that research, noted that it was also not required to “accept uncritically claims made by an applicant” (citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 and other related cases) and that credibility findings were open to it, provided that they were not unreasonable or failed to afford the procedural fairness (citing ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174) (at [114]).
The Tribunal also outlined the comments of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”) regarding a decision-maker reaching conclusions, based on the material provided, about which facts are established and which are not (at [115]).
The Tribunal ultimately concluded:
116.When considering the evidence cumulatively as referred to above, the Tribunal is not satisfied that the applicant suffered any harm from the Muslim Brotherhood or from the authorities in Sudan prior to leaving Sudan. The Tribunal is not satisfied that he was threatened, shot at, detained, arrested or placed on a blacklist. In light of these findings, the Tribunal is also not satisfied that ‘spies in the government’ or others have said that they are awaiting his return.
Under the heading “Findings of fact – threats from wife’s family members in Sudan”, the Tribunal noted as follows:
117.The applicant claimed in his interview with the Tribunal that his wife’s family did not accept their marriage. The Tribunal is not satisfied that this was the case. As discussed with him at the Tribunal hearing, his wife’s family permitted and presumably financed her to travel from Australia to Sudan at the age of 16 to marry him. The couple then moved to Australia to be with her family. Furthermore, in his Department evidence he said that they had a big wedding and mentioned numerous relatives from her side who attended. The sentencing remarks of Garling J refer to a generally happy and stable life in Sudan. The Tribunal is of the view that he has introduced evidence that his wife’s family did not accept his marriage so as to bolster his claim that they would harm him if he returned to Sudan. The Tribunal does accept that he may have had personality issues with some members of the family, as this is not an unusual occurrence, and he mentioned it in his criminal trial as well as to this Tribunal.
118.The applicant said in his interview with the Department that he had received threats from his late wife’s family who called his sisters, Lubna then Ishwa. He said that he did not know who made the calls as it was from a private number. He said that he advised his sisters to relocate, so Ishwa moved to Egypt. He said that Lubna told him in 2014 not to travel to Sudan as people have said that they will kill him.
The Tribunal continued:
119.At the Tribunal hearing the applicant was asked who specifically he fears would inflict revenge on him. He said that ‘all of them of course’. Asked if there were any particular family members he feared, he said that he fears his wife’s father and paternal uncles. He said that these family members do not accept the conviction of the court and believe that the killing was done intentionally. He said that his mother-in-law told him this at the court. Asked what family members had done to suggest they would harm him, he said that they spoke to his sister in Cairo and his other sister. There was a telephone call from a private number. They said that they would take revenge on him and would kill him. He was asked if there was anything in their conduct to indicate that they would carry out these actions, he said that he doesn’t think that they are just talking. He was asked why these family members may be prepared to give up their families and jobs by taking a risk to commit a crime on him. He said that they would.
120.The applicant has not provided evidence from his sisters about the threats made in 2015, and as discussed earlier, is a witness who changes versions of events in order to support self-serving narratives. In light of these factors, the Tribunal has some doubts about whether any threats were made to his sisters. However, giving the applicant the benefit of the doubt, the Tribunal is prepared to accept that threats were made from unknown persons to his sisters in 2014/2015.
The Tribunal then outlined the refugee criteria, detailing the requirements for a “well-founded fear of persecution” as set out in s 5H(1) of the Act (at [121]) and noted that the fear needed to be for “one of the reasons set out in the legislation” (at [122]).
The Tribunal then detailed the further definition of “well-founded fear of persecution” as set out in s 5J of the Act (at [123]) and noted that, for a fear to be well-founded, there must be a “real chance” of persecution if an applicant is returned to their receiving country (at [124]). The Tribunal then explained the concept of “real chance”, noting that, as stated by the High Court in Chan, it must be a “substantial chance” (as distinct from a remote possibility) – however, it may be “well below a 50 percent chance” (at [125]).
The Tribunal, again citing Chan, noted that the fact that a claim is plausible or credible is not enough to “establish a real chance of persecution” (at [126]) and confirmed that it had assessed whether there was a real chance of serious harm in this matter (at [127]).
The Tribunal was not satisfied that there was “a real chance that the applicant would be harmed by members of the Muslim Brotherhood” or that he was targeted by them while in Sudan. The Tribunal accepted that there may have been attempts by the Muslim Brotherhood to recruit the applicant, but not that he was harmed in any way on that basis. Further, the Tribunal was not satisfied that there would be any need for the Muslim Brotherhood to harm the applicant if he returned (at [128]).
The Tribunal continued:
129.Furthermore, there is now a different government and prevailing culture in Sudan, and the power of the Muslim Brotherhood has been reduced such that it would be more difficult for former members to act with impunity. Since former president Omar al-Bashir’s removal from power in April 2019, Sudan – with the support of Egypt – has been working to ‘crack down on the Muslim Brotherhood’ and there are more political freedoms. At the Tribunal hearing country sources regarding the reduced power of the Brotherhood and the new political and religious environment in Sudan, were discussed with the applicant. He was asked if he still has a fear of the Brotherhood or authorities in light of this information. He said ‘believe me, what is happening there is never going to end, there are armed groups everywhere, even in the capital’. He said that the Brotherhood is still ‘everywhere’. He said that the situation would be ‘worse’, the Muslim Brotherhood would try harder to recruit people and would still kill people. He said that current government was not the choice of the people but was forced on them.
The Tribunal considered the applicant’s submissions but was not satisfied that the applicant faced a real chance of harm from the Muslim Brotherhood in the reasonably foreseeable future. The Tribunal noted that country information confirms that there has been a “crackdown on the Muslim Brotherhood … dismantling the Brotherhood’s control of state institutions” (at [130]).
The Tribunal also noted that information contained in The Arab Weekly confirmed that there had been a “weakening” of the Muslim Brotherhood (at [131]) and that the Sudanese government was “preparing to deport hundreds of Brotherhood members” (at [132]).
Given the reduced power of the Muslim Brotherhood and the applicant’s absence from Sudan, the Tribunal was not satisfied that the applicant would be recruited by the Muslim Brotherhood. Further, the Tribunal was not satisfied that the applicant would be targeted because of his marriage to a Christian woman or because he had previously refused to join them. The Tribunal noted that the applicant’s late wife had converted to Islam and was now deceased. It also noted that the applicant’s evidence in his spousal visa application to the Department and sentencing remarks in his criminal trial both indicated that the applicant “lived a stable life without any significant problems” in Sudan. The Tribunal also noted improved religious tolerance in Sudan (at [133]).
The Tribunal explained further that the degree of tolerance mentioned above was referenced by the United States Department of State (“USDOS”) International Religious Freedom Report for Sudan published in June 2020 (at [134]) and that a more recent US Commission on International Religious Freedom reported in 2021 that “Sudan continued to make significant steps towards improved religious freedom conditions in 2020” (at [135]).
The Tribunal also referenced a 2021 World Report by Aid to the Church in Need which positively endorsed work done by the transitional government in Sudan regarding religious freedom (at [136]). The Tribunal also noted information from the USDOS that “Muslims and Christians reported generally good relationships at the societal level” and that instances of intolerance and discrimination were “generally isolated” (at [137]).
After considering the information regarding the “new religious and political” conditions in Sudan, the Tribunal was not satisfied that there was any more than a remote chance of harm from the Muslim Brotherhood if the applicant returned to Sudan. The Tribunal was also not satisfied that the applicant would face “a real chance of serious harm from the government”, that the applicant was put on a blacklist or that he was of any interest to authorities. The Tribunal also noted that the applicant had not been involved in political activities (either while in Sudan or since) and was satisfied that the applicant would not be so involved if he returned to Sudan (at [138]).
Although not specifically raised by the applicant, the Tribunal also considered whether the applicant might face “serious harm by reason of re-prosecution or incarceration” for criminal offences in Australia (at [139]). Overall, the applicant was not satisfied that the applicant would be re-prosecuted – noting that “double jeopardy” was “enshrined in Sudanese legislation” (at [140]).
The Tribunal continued:
141.The applicant also claims to fear returning to Sudan because his wife’s family will inflict revenge on him as he has been found guilty of her manslaughter in Australia, and family members are not ‘confident of the conviction’, believing he intentionally killed his wife. The Tribunal is not satisfied that there is a real chance of serious harm from family members for the reasons set out below.
142.The applicant has claimed that his sisters received telephone threats from unknown persons in 2014 (Department hearing) or 2015 (Tribunal hearing) in which the callers said that they would kill their brother. The applicant does not know who the callers were. No corroborating statements from his sisters have been provided. The Tribunal is not satisfied on this sparse information that the callers were his wife’s former family members, or how serious the threats were, or what was actually said.
Ultimately, the Tribunal determined as follows in this regard:
144.As discussed with the applicant at hearing, six years have passed since the threats were made, and there have been no further threats and no repercussions for his sisters in Sudan. On this basis, the Tribunal is not satisfied that there is a real chance, that is a substantial chance, of family members harming him if he were to return. Other factors relevant to this finding is that no evidence has been provided that these family members have been involved in any criminal conduct, or in fact where they live or why they would be motivated to commit a crime. As discussed earlier, the Tribunal is not satisfied that her family did not accept the marriage, although he did not get on well with all family members. The Tribunal is satisfied that it is mere speculation therefore that family members would harm the applicant if he returned to Sudan, rather than having a substantial basis. Although no doubt his wife’s family members would have been extremely angry with him for killing her, not all individuals use violence in revenge. Further, as set out in some detail in the delegate’s decision record, even if these family members were to apply sharia law, which has been codified, the compensation may be payment of blood money, which has been enacted as possible compensation for crimes such as intentional homicide and semi-intentional homicide. Notably, in 2020, Nasredeen Abdulbari, Sudan’s justice minister announced the end of bans on alcohol and apostasy, and prohibited the use of traditional corporal punishment, which an article in the Washington Post suggests are part of a wider effort to shift Sudan away from traditional sharia, or Islamic law, which has been the basis of law in the country for decades.
The Tribunal also noted that the applicant had family support in Khartoum, substantial work experience in Sudan and in Australia and would not be destitute in Khartoum or a different part of Sudan (at [145]).
On the basis of the matters above, the Tribunal was not satisfied that there was a real chance of serious harm to the applicant from his late wife’s family members (at [146]).
The Tribunal was not satisfied that the persecution feared from the applicant’s late wife’s family members would be for one or more of the reasons set out in s 5J(1)(a) of the Act. Instead, the Tribunal considered that any harm in that regard would be “motivated by revenge, a private motivation” (at [147]).

The Tribunal noted that the applicant had, during the Tribunal hearing, referred to a fear of “crime and lawlessness in Sudan” (at [148]). The Tribunal acknowledged that crime rates were high in Sudan and that there was “still civil conflict” but considered any “criminal conduct or harm from general violence” would not be for one of the reasons set out in the legislation and was not satisfied that “harm due to civil disturbance or crime would amount to persecution” for a legislated reason (at [148]).
The Tribunal ultimately found as follows:
150.The Tribunal has considered the applicant’s claims, individually and cumulatively. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Sudan. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
The Tribunal then outlined the general complementary protection principles, detailing the complementary protection criterion (at [151]), the meaning of “significant harm” for those purposes (at [152]) and noted that s 36(2)(aa) refers to a “real risk” – the test for which imposes the same standard as the “real chance” test applicable to the assessment of a “well-founded fear” in the refugee convention definition (citing Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33) (at [153]).
The Tribunal continued:
154.The Tribunal has not accepted for reasons set out earlier that the applicant was targeted and harmed by the Muslim Brotherhood while living in Sudan. The Tribunal has also not accepted that the applicant’s wife’s family did not accept their marriage, although it has accepted that there may have been some personality problems and the applicant’s sisters received telephone threats in 2014/2015. For reasons set out earlier, the Tribunal is not satisfied that there is a real chance of serious harm from the Muslim Brotherhood, or from authorities, or from his wife’s family members, were the applicant to return to Sudan in the reasonably foreseeable future. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation from the Muslim Brotherhood or authorities or members of his wife’s family.
The Tribunal was satisfied that the risk from crime or general lawlessness or civil conflict was a risk faced by the population of Sudan generally and not by the applicant personally (at [155]) and was not satisfied that the applicant would face a real risk of significant harm if he was returned to Sudan (at [156]).
The Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations and, having assessed the relevant refugee criterion in detail, determined that the applicant also did not meet the criteria set out in s 36(2)(aa) of the Act (at [157]-[158]).
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [160]).
PROCEEDING IN THIS COURT
The applicant filed his application for judicial review in this Court on 15 October 2021. At the time, he was in detention and was not legally represented. In his application, the applicant provides two grounds of review (without particulars), as follows:
GROUND 1: Error of Law – The Tribunal erred, amounting to jurisdictional error, by failing to consider an integer of the applicant’s claim that squarely arose on the materials.
GROUND 2: Error of Law – The Tribunal erred, amounting to jurisdictional error, by failing to give adequate reasons for decision, as required by section 430 of the Migration Act 1958 (Cth) by failing to give reasons for its conclusion.
On 9 November 2021, a pro bono referral certificate was issued by this Court, pursuant to r 12.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
On 18 November 2021, procedural orders were made by a Registrar of this Court giving the applicant an opportunity to file an amended application, any further affidavit evidence and written submissions.
On or about 29 November 2021, Mr Redmond of counsel accepted a pro bono referral from this Court. The Court thanks Mr Redmond for doing so.
Written Submissions were filed on behalf of the applicant by Mr Redmond on 21 February 2022. Somewhat unusually, Mr Redmond did not amend the applicant’s original application for judicial review. Further, the written submissions did not particularise (or address in any substantial detail) the applicant’s two grounds of review as articulated. Indeed, having offered a 4 page summary of the “relevant law”, the written submissions simply state:
16.The Tribunal erred, in the relevant sense, by failing to give sufficient weight to the applicant's evidence that he had genuine and real fear of persecution from the Muslim Brotherhood and that he feared serious harm from his wife's family in Sudan.
The Court’s concerns in this regard are discussed further below.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 15 October 2021, an amended Court Book numbering 394 pages (as filed on 11 February 2022) (marked as Exhibit 1), written submissions filed on behalf of the applicant on 21 February 2022 and written submissions filed by the Minister on 4 March 2022.
CONSIDERATION
At the hearing of this matter, the Court asked Mr Redmond if he wished to elaborate on his written submissions or particularise the applicant’s grounds of review. Mr Redmond indicated that he did not wish to do so and that he was content to rely on his written submissions.
In the circumstances, no oral submissions of substance were provided on behalf of the applicant.
Mr Ghosh, in response (and on behalf of the Minister), indicated that he was content to rely on the Minister’s written submissions as filed.
Before concluding, the Court again asked Mr Redmond if there was anything further he wished to say to the Court. He indicated that there was not, again relying on the contents of his written submissions.
There are a multitude of reasons counsel might choose to, in effect, remain “silent” in the face of an application for judicial that lacks particulars and written submissions that were, at best, “skeletal”. The Court can only speculate in this regard and the Court’s concerns should not be seen as a criticism of Mr Redmond as pro bono counsel.
However, without more, the Court finds itself querying how best to approach the task before it. Here, the submissions filed on behalf of the applicant contained a lengthy overview of the jurisprudence related to jurisdictional error and legislation and jurisprudence related to decision-making in protection visa matters. What is lacking, however, is any substantive submissions related to the applicant’s grounds of review.
Were the applicant not represented, this Court’s now standard approach would be to read the applicant’s grounds of review as broadly as possible and remain astute and alert in its own right to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392.
Although unusual, given the situation described above, the Court will adopt that approach here and do what it can do to ensure that any possible error on the part of the Tribunal is scrutinised.
Grounds of review
Ground 1
Ground 1 provides:
GROUND 1: Error of Law – The Tribunal erred, amounting to jurisdictional error, by failing to consider an integer of the applicant’s claim that squarely arose on the materials.
The applicant’s ground suggests that the Tribunal failed to consider and integer of a claim.
The Court notes that the applicant raised the following protection claims in his visa application:
(a)he left Sudan because of the conflict that existed in the country between North Sudan and South Sudan, between Muslims and Christian, stating that he was threatened because of his marriage to a woman from a Christian family and he was pursued and threatened with death from some Islamic groups (such as the Muslim Brotherhood). The applicant also claimed that he had been threatened “hundreds of times” and shot at (CB 146); and
(b)his wife’s family want revenge for their daughter’s death and have “promised” to kill him if he returns to Sudan (CB 147).
When asked why he did not “seek help”, the applicant stated that he was afraid because “the country did not have a government” and “chaos prevailed in the country”. Further, the applicant claimed that the authorities in Sudan were corrupt and would not help with problems of “revenge” (CB 147).
The Tribunal summarised the applicant’s protection claims in the first paragraph of its reasons as follows (emphasis added):
1.The applicant is a 63-year old man originally from Khartoum, Sudan. He applied for a protection visa under s.65 of the Migration Act 1958 (Cth) (the Act) on 5 May 2021. The applicant claims, in summary, that if he returns to Sudan he will be harmed or killed by Muslim extremist groups, government authorities or his wife’s family. A delegate of the Minister for Home Affairs refused to grant the applicant the visa on 17 June 2021. The matter is now before this Administrative Appeals Tribunal (the Tribunal) for review.
The Tribunal then set out the evidence set out in the Departmental records, making specific reference to evidence relating to the applicant’s protection claims, as follows:
35.In his application forms, the applicant claimed that he left Sudan because of the war and conflict between North and South Sudanese Muslims and Christians. He said that he had married a Christian and was pursued and threatened with death by Islamic groups, such as the Muslim Brotherhood.
36.He claimed that his family did not allow him to live or work and he lived in fear for his family all the time.
37.He claimed that in 2006 he was shot at while with some friends but managed to escape into the bush. He said that he then decided to leave Sudan and go to Australia.
38.He said that he was threatened hundreds of times and faced difficulty getting work or finding a place to live with his family. The applicant did not seek help within Sudan as he was afraid due to the government and the chaos that prevailed in the country. The applicant stated that some groups have spies working in the government and he did not know who to speak to or trust. He claimed that the authorities ‘do not assist with revenge problems and they will deliver’ the applicant to his wife’s family.
39.He said that he could not relocate as it was ‘the same everywhere’. He states that the minute he enters Sudan, ‘many people will know’.
40.The applicant said that he has not told his sisters about what happened with his wife and they do not know she is dead, although other family members do. He said that he told them that ‘a problem happened between me and my wife and it was about children and other things. Then she attacked me. I defended myself’. He claimed that ‘his life is in great danger’ because of the family of his deceased wife. Her family have been threatening the applicant’s family. He claimed that they want revenge for their daughter’s death and promise the applicant’s family in Sudan that they will kill the applicant if he returns to Sudan. He said that they have asked for the date of return.
41.The applicant suggested that the Muslim Brotherhood would torture him and kill him as they think he is a traitor and wish to use him as an example for men who marry non-Muslim women.
The Tribunal then detailed the evidence before it (including the applicant’s background and family circumstances (at [55]-[67]) and his reasons for leaving Sudan (at [68]-[73])) and then outlined the applicant’s fear of harm, stating:
74.He was asked if he still fears the Muslim Brotherhood if he returns to Sudan. He said that he ‘wants to say one thing. If I ever go to Sudan I swear by Allah I will not go out of Sudan again. I will be trapped from both sides, either the family or the Muslim Brothers would shoot me.’
The Tribunal then identified that the key issues it was required to determine in this matter were whether (at [80]):
•the incidents he described in Sudan took place, such as targeting by the Muslim Brotherhood or by the authorities (findings of fact);
•there was a real chance of serious harm or a real risk of significant harm from:
(i)members of the Muslim Brotherhood;
(ii)the Sudanese authorities; or
(iii)his wife’s family members; and
•the applicant could relocate within Sudan.
The Tribunal set out its findings of fact, based on the evidence before, in relation to the applicant’s claims to fear harm from the Muslim Brotherhood (including some consideration about potential harm from the Sudanese authorities) (at [93]-[116]) and in relation to the threats the applicant claimed were made by his late wife’s family members in Sudan (at [117]-[120]). Based on that fact finding, and the evidence before it, the Tribunal then considered whether there was a real chance that the applicant would face serious harm from the Muslim Brotherhood (again, including claims in relation to a fear of harm from the Sudanese authorities) (at [128]-[138]) and from the applicant’s late wife’s family (at [141]-[146]). The Tribunal also considered whether the applicant would face a real chance of serious harm by re-prosecution for criminal offences in Australia (at [139]-[140]).
Ultimately, the Tribunal made findings as follows:
138.When considering these sources about the new religious and political environment in Sudan, the Tribunal is not satisfied that there is anything more than a remote chance of harm from the Muslim Brotherhood were the applicant to return to Sudan. The Tribunal is also not satisfied that the applicant faces a real chance of serious harm from the government. The Tribunal is not satisfied that the applicant was put on a blacklist, for reasons mentioned earlier and is not satisfied that he was of any interest to authorities. The applicant has not been involved in political activities while in Sudan, or since, and the Tribunal is satisfied that he would not be involved with political groups or activities if he returned to Sudan. Furthermore, there has also been a change of government since he lived there. Sources indicate that since the change of government there is overall political freedom in Sudan…
…
146.Considering these matters cumulatively, the Tribunal is not satisfied that there is a real chance of serious harm from his wife’s family members.
On the basis of the details set out above, the Court is satisfied that the Tribunal considered the applicant’s claims in full. It did so in detail, providing a forensic analysis of the evidence before it, making findings of fact and finally considering whether the applicant faced a real chance of serious harm on the basis of those claims.
No error arises in this regard. Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
GROUND 2: Error of Law – The Tribunal erred, amounting to jurisdictional error, by failing to give adequate reasons for decision, as required by section 430 of the Migration Act 1958 (Cth) by failing to give reasons for its conclusion.
Section 430 of the Act relevantly provides:
430 Tribunal’s decision and written statement
Written statement of decision
(1)Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a)       sets out the decision of the Tribunal on the review; and
(b)       sets out the reasons for the decision; and
(c)       sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based; and
(e)in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and
(f)       records the day and time the statement is made.
Note:Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.
Section 430 of the Act requires that the Tribunal provide a “written statement of decision” addressing those matters set out above.
The relevant principles regarding the Tribunal’s obligations under s 430(1) of the Act were recently summarised by the Federal Court in AGD15 v Minister for Home Affairs [2019] FCA 896 (“AGD15”) at [36]-[37] as follows:
As explained by French CJ and Kiefel in Minister for Immigration and Citizenship v SZUGR [2011] HCA 1; 241 CLR 594 (SZUGR) at [32], s 430(1) presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:
(a)identification of the relevant evidence or material upon which findings of fact can be based;
(b) making findings of fact based on the relevant evidence or material; and
(c)reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential.
A key aim of provisions such as s 430(1) is to enable a Court undertaking a process of judicial review to discern the manner in which and the basis upon which the administrative decision was made: Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at [34]. See also Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 (SZLSP) at [92], [95]-[96]. It also provides the parties with justification for the Tribunal’s decision. As such, in this case, the discharge of the Tribunal’s duty under s 430(1)(b) was aimed at explaining to the applicant and the Minister why the Tribunal was not satisfied that the applicant did not satisfy a criterion for the grant of a Visa: see SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376 at [28].
As outlined above by the Federal Court, SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376 (“SZNNQ”) requires that the Tribunal explain to the applicant, through its written reasons, why it was not satisfied that the applicant met the criteria for the grant of the visa.
The Tribunal did so here.
The Tribunal set out, in detail, the evidence before it (including a summary of the evidence in the Departmental files, the decision to cancel the applicant’s partner visa, the sentencing remarks of Justice Garling in the Supreme Court of New South Wales, evidence provided to the Tribunal and independent country information) (at [26]-[77]).
As outlined above in relation to ground 1, the Tribunal then set out its findings of fact, based on that evidence, in relation to the applicant’s claims to fear harm from the Muslim Brotherhood (at [93]-[116]) and in relation to the threats the applicant claimed were made by his late wife’s family members in Sudan (at [117]-[120]). Based on that fact finding, and the evidence before it, the Tribunal then considered whether there was a real chance that the applicant would face serious harm from the Muslim Brotherhood (at [128]-[138]) and from the applicant’s late wife’s family (at [141]-[146]). The Tribunal also considered whether the applicant would face a real chance of serious harm by re-prosecution for criminal offences in Australia (at [139]-[140]).
Finally, the Tribunal outlined its findings in relation to the refugee criteria, having considered the applicant’s claims individually and cumulatively (at [150]) and the complementary protection criteria (at [154]-[155]). Ultimately, the Tribunal concluded that the applicant was not a person to whom Australia had protection obligations and, having assessed the relevant refugee criterion in detail, the Tribunal determined that the applicant also did not meet the criteria set out in s 36(2)(aa) of the Act (at [157]-[158]). On this basis, the Tribunal affirmed the delegate’s decision (at [160]).

Here, the Tribunal complied with its obligation to explain why it was not satisfied that the applicant met the criteria for the grant of the visa: SZNNQ.
No jurisdictional error arises in relation to ground 2 and ground 2 is dismissed.
Otherwise – Paragraph 16 in the applicant’s submissions
In written submissions filed on behalf of the applicant, counsel states that the Tribunal failed to give sufficient weight to evidence as follows:
16.The Tribunal erred, in the relevant sense, by failing to give sufficient weight to the applicant’s evidence that he had genuine and real fear of persecution from the Muslim Brotherhood and that he feared serious harm from his wife’s family in Sudan.
Unfortunately, no details have been provided (either in writing or orally) about what evidence, specifically, was not given sufficient weight.
The Tribunal is required to give “proper, genuine and realistic consideration” to the claims and evidence before it: Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [29] and [32]-[33].
As outlined above, the Tribunal summarised the evidence considered in its review in some detail (at [26]-[77]). It then made findings of fact, based on that evidence, in relation to the Muslim Brotherhood and authority involvement (at [93]-[116]) and threats from the applicant’s late wife’s family (at [117]-[120]).
The Tribunal is entitled to accept or reject or give such weight to an applicant’s evidence as it thinks appropriate in all of the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464. This is entirely a matter for the Tribunal as a part of its fact-finding function: Wu Shan Liang at 281-282.
Here, the Tribunal’s findings flow logically from the evidence before it and were entirely open to be made. It cannot be said to that no reasonable person could have made the same findings. The question this Court must answer is whether, on the evidence, the Tribunal’s conclusions are “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”. Given the nature of the evidence before the Tribunal and the Tribunal’s forensic assessment of that evidence, the Tribunal’s approach and ultimate findings were legally reasonable.
No error arises in relation to the Tribunal’s consideration of the evidence before it.
CONCLUSION
The application for judicial review filed by the applicant on 15 October 2021 and the written submissions filed on behalf of the applicant on 21 February 2022 have failed to identify any error on the part of the Tribunal. The Court has otherwise been unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall.
Associate:
Dated: 10 June 2022

File number:	PEG 225 of 2021
Judgment of:	JUDGE KENDALL
Date of judgment:	10 June 2022
Catchwords:	MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider an integer of a claim – whether the Tribunal failed to give adequate reasons for its decision – whether the Tribunal failed to give sufficient weight to the applicant’s evidence – no jurisdictional error – application dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), r 12.01 Migration Act 1958 (Cth), ss 5H, 5J, 36, 430 and 476
Cases cited:	Abebe v Commonwealth of Australia [1999] HCA 14 ABT16 v Minister for Home Affairs [2019] FCA 836 AGD15 v Minister for Home Affairs [2019] FCA 896 Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 Fox v Percy [2003] HCA 22 Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 Nejad v Minister for Immigration and Multicultural Affairs [2000] FCA 1827 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1916 SZNNQ v Minister for Immigration and Citizenship [2010] FCA 376
Division:	Division 2 General Federal Law
Number of paragraphs:	138
Date of hearing:	14 March 2022
Place:	Perth
Counsel for the Applicant:	Mr J-P Redmond
Counsel for the First Respondent:	Mr V Ghosh
Second Respondent:	Submitting appearance, save as to costs
Solicitor for the Respondents:	Minter Ellison

PEG 225 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	DQE21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE KENDALL
DATE OF ORDER:	10 JUNE 2022