FQN17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 197
•4 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FQN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 197
File number(s): SYG 3979 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 4 March 2024 Catchwords: MIGRATION – Whether Immigration Assessment Authority failed to consider certain claims Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CB Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of hearing: 5 September 2023 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Alkafaji Lawyers Pty Ltd Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Minter Ellison ORDERS
SYG 3979 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FQN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
4 MARCH 2024
THE COURT ORDERS THAT:
1.The application filed on 21 December 2017, as amended, is 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 GIVEN:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) affirming a decision of a delegate of the first respondent (delegate) to not grant the applicant a Temporary Protection (subclass 785) visa (visa).
BACKGROUND
The background to this matter is taken from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute.
The applicant is a citizen of Sudan who arrived in Australia on 2 September 2013 as an unauthorised maritime arrival (Court Book (CB) 51 and 146).
On 17 November 2016, with the assistance of his registered migration agent (agent), the applicant lodged an application for the visa (CB 31 to 91). By that application the applicant answered the questions contained therein briefly, and said that “details of my story” would be provided later (CB 65).
On 13 February 2017, the applicant’s migration agent emailed to the Department a statutory declaration made by the applicant (February Statutory Declaration) which further set out his claims to protection (CB 111 to 112) which included the following:
(a)the applicant’s life would be at serious risk from “armed militias” and “Jangawit gangs”, as well as “rebels in our area engaged in aggressive conflicts with government forces”; and
(b)he feared harm in Sudan if the authorities discovered that he travelled to Israel, which is a crime for Sudanese citizens.
On 30 May 2017, the applicant attended an interview with the delegate (CB 119).
On 21 September 2017, the delegate refused to grant the applicant a protection visa (CB 146 to 155).
On 27 September 2017, the decision was referred to the Authority for review (CB 172).
On 18 October 2017, the applicant’s migration agent provided the Authority with a submission comprised of both argument and evidence in the form of a further statutory declaration made by the applicant on 18 October 2017 (CB 192 to 196) (October Statutory Declaration).
On 8 December 2017, the Authority made a decision affirming the delegate’s decision to not grant the applicant the visa (CB 207 to 217).
Authority’s decision
The Authority ultimately found that the applicant did not meet the requirements of the definition of refugee in s 5H of the Migration Act 1958 (Cth) (Act) (CB 216 at [31]) and that he also did not satisfy the complementary protection criterion pursuant to s 36(2)(aa) (CB 217 at [36]). The salient parts of the Authority’s decision which are relevant to the grounds as raised are as follows.
The Authority commenced its decision by summarising the applicant’s claims for protection as follows (CB 208 at [3]):
(a)the applicant belongs to a minority non-Arab tribe and was born in Sudan where he resided in his home area until 2009 when he travelled to Israel;
(b)the applicant returned to Sudan in 2012 and relocated from his home area to a different area in order to work in the gold mining industry. The applicant said that he was living in fear and was unable to remain at his home;
(c)the applicant is married and his wife moves around staying with different relatives;
(d)his brother is a member of the Al Ummah political party and has been targeted, detained, interrogated and assaulted on several occasions;
(e)the applicant said that he had been targeted but not detained, however did not explain what he meant by “targeted”;
(f)the applicant said that if the Sudanese Government became aware that he had been to Israel, he would be imprisoned, tortured or potentially executed on suspicion of being a spy. Although the applicant claimed his passport contained a stamp showing that he had travelled to Israel, his passport was not checked when he returned to Sudan via South Sudan. On his departure to Australia, the applicant said he was assisted by a people smuggler in order to pass through Khartoum airport without any “problems”;
(g)the applicant said that the Sudanese Government is aware that he had been to Israel because he used to call his family. He said that his brother was informed by a neighbour that security forces were aware that the applicant was in Israel;
(h)the applicant said that he suffered harassment, in the sense that people can be “taken from the street or from public transport and made to do military service”, however he did not claim that this had ever happened to him;
(i)the applicant said that there was conflict in Kordofan and North Darfur between tribes and government forces and that although the situation existed while he resided in Sudan, it escalated upon his return; and
(j)the applicant said he gave his passport to the people smuggler in Indonesia.
The Authority outlined the information before it and, in addition to the material provided by the Secretary pursuant to s 473CB of the Act, made relevant findings in relation to new information (CB 209 to 210 at [5] to [10]).
In conducting its assessment of the refugee criterion (CB 210 at [13] to 216 at [31]) the Authority was of the view that there were no errors or omissions from the interview which had not been corrected. It was not satisfied that there were any “problems” in the applicant’s evidence resulting from the interpreter, much less resulting from any incompetence or partiality on the part of the interpreter (CB 211 at [15]). The Authority was satisfied that the applicant’s identity was as he claimed and that he is a national of Sudan (CB 211 at [16]). It was also satisfied that the applicant was a member of the Jawama’a tribe, but noted that he had not specified any particular harm which he allegedly faced as a result, nor claims to fear harm because of his membership of that tribe (CB 211 to 212 at [17]). Although the available country information detailed a number of areas of conflict in regions which neighbour Sudan, the Authority observed there to be no information before it to indicate that the applicant’s tribe was specifically involved in any of those conflicts (CB 211 to 212 at [17]).
The Authority found the applicant’s evidence about a fear of harm from generalised violence from conflict to be vague, lacking in detail and to have changed over time (CB 212 at [19]). As an example, the Authority noted that in the applicant’s February Statutory Declaration, he stated that on his return from Israel the applicant felt his life was at risk “because militia and armed gangs were everywhere” (CB 212 at [19]). However, at the protection visa interview, the applicant did not repeat that claim, and the Authority recorded his only concern as being that the authorities would discover that he had been in Israel.
The Authority was not satisfied there was a real chance that the applicant would, on return to Sudan, face harassment amounting to serious harm for any reason (CB 212 at [19] to [20]). Although it acknowledged certain country information indicated unrest in many areas of Sudan (including neighbouring areas to the applicant’s state), the Authority was not satisfied that the applicant had provided a “coherent or credible account of having been the victim of harassment of any kind, for any reason” (CB 212 at [20]). Further, and in relation to the applicant’s apparent claim that he would face problems as a Darfuri, the Authority noted that country information indicated that Darfuris may face serious forms of harm in Darfur and Khartoum, but found that the applicant was not from Darfur, would not be regarded as a Darfuri nor mistreated as such for any reason, including his origin in a state which is adjacent to Darfur (CB 212 at [20]).
Next, the Authority observed that it is a crime for Sudanese citizens to travel to Israel (CB 213 at [23]). Relevant to ground 2 of the Amended Application are the following parts of the Authority’s decision which warrant being set out in full. This is because the applicant highlights that, when addressing whether his passport had a permanent notation indicating that he had visited Israel, the Authority found as follows:
The information indicates that visas are usually pasted into passports. If the applicant held temporary asylum visas, it appears probable that they were pasted into his passport and unless he asked for his passport not to be stamped on his exit from Israel, it may have been. Based on the information before me, I am not able to find with certainty whether or not there was any permanent notation in the applicant’s passport that would have indicated that he spent time in Israel.[1]
[1] CB 213 to 214 at [24]
The Authority continued,[2] finding that:
I accept that he did not need to pass through customs or immigration checks on return to Sudan in 2012. It is possible, although I consider it unlikely, that he was assisted to pass through Khartoum airport on his departure for Australia by a smuggler, so that any Israeli visas or stamps did not cause problems for him at that point. In any case, ... he no longer has [the passport]. In these circumstances, I am satisfied that there would be nothing to alert the authorities to his previous residence in Israel if he returns to Sudan.
[2] Ibid
Based on the country information which had been before the delegate, the Authority did not accept the applicant’s claim that the Sudanese authorities were aware that he was in Israel because of phone calls made to his family, nor did it accept the applicant’s claim (made at interview) that a neighbour who worked with the security forces told his brother that the government was aware the applicant had been in Israel (CB 214 at [25]). The Authority noted that country information did not suggest that a person with no other profile or adverse characteristics would be “hunted down” upon return from Sudan simply because they had been to Israel. Accordingly, the Authority was not satisfied there was a real chance that the applicant faces harm for that reason (CB 214 at [25]).
In considering whether the applicant would face harm because of the circumstances in which he would return to Sudan (CB 214 to 216 at [26] to [30]), the Authority cited a UK Home Office report which took the view that failed asylum seekers do not face a real chance of harm on return to Sudan, and noted that it was standard procedure for failed asylum seekers to be detained for investigation by immigration authorities for up to 24 hours (CB 215 at [27]).
The Authority was satisfied that on return to Sudan the applicant may be identified as a failed asylum seeker, but found that even if the applicant were to be identified in this way, the country information indicated that this would not result in a real chance of serious harm, absent any other characteristics which might be viewed adversely by the government (CB 214 to 215 at [26] to [28]). The Authority was satisfied that the Sudanese authorities would not be aware that the applicant had spent time in Israel and, accordingly, he would not face problems at the airport on return (CB 215 at [29]).
The Authority accepted that the applicant may come to the attention of immigration authorities on return to Sudan and be detained for a period of up to 24 hours at the airport because he may be travelling on a temporary travel document. Based on the applicant’s own evidence about his circumstances, together with the available country information, the Authority was not satisfied that the applicant would be regarded as a person of interest to the Sudanese authorities by reason of his place of origin, his membership to the Jawama’a tribe or because of his association with his brother (CB 215 to 216 at [30]).
In applying the complementary protection assessment, the Authority found there to not be substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sudan, there is a real risk the applicant would suffer significant harm (CB 216 to 217 at [32] to [36]).
Accordingly, the Authority affirmed the delegate’s decision to not grant the applicant the visa (CB 217).
APPLICATION TO THIS COURT
By an application to show cause filed with this Court on 21 December 2017, the applicant seeks judicial review of the Authority’s decision. At the time the proceedings were commenced the applicant was represented by a lawyer. On 1 February 2018, a Registrar of the Court made orders, by consent, which included leave to the applicant to file and serve any amended application by 24 May 2018. Presumably because he continued to be represented by those who had prepared the originating application, that opportunity was not taken up. An order was also made that the application next be listed for callover on a date and time to be advised to the parties administratively.
On 9 April 2018, a Notice of Address for Service was filed for the applicant, seemingly to notify that the applicant was now acting in person. However, the address for service and email address in the document were still those of the lawyer whose details were given on the originating application. On 17 April 2018, another Notice of Address for Service was filed for the applicant which seemingly rectified the previous inconsistency by again notifying that the applicant was now unrepresented but providing his own name and postal address for service. However, no telephone number or email address was provided. On 5 July 2019, a further Notice of Address for Service was filed for the applicant by his current solicitor with reference to a particular law firm. On 4 November 2020, a second further Notice of Address for Service was filed for the applicant by the same solicitor, by reference to a new law firm.
At some point, the proceedings were placed in the central migration docket where they remained until when, on 15 March 2023, they were docketed to me and on which date I made orders listing the matter for hearing before me on 5 September 2023, with timetabling orders to prepare the matter for that hearing. Among those orders was a fresh grant of leave to the applicant to file and serve any amended application on or by 1 August 2023. The applicant availed himself of that opportunity, and an amended application was duly filed on 31 July 2023 (Amended Application). The final hearing in this matter proceeded on the basis of the grounds in the Amended Application.
Written submissions were filed by each of the parties prior to hearing, at which they were each represented by their respective Counsel who made additional oral submissions. An issue arose at hearing which warranted additional material from the first respondent and supplementary submissions from each party, for which I made orders at the conclusion of the hearing. Supplementary submissions and an Affidavit of a solicitor for the Minister were filed in accordance with those orders (see [29(b)] below). I have been assisted by the all the submissions made for the parties.
Evidence
At hearing the Court Book (prepared by the representatives of the Minister) was tendered by the applicant without objection and marked Exhibit “1A”. The first respondent read two Affidavits of Harry McLaurin (solicitor), without objection, as follows:
(a)affirmed 15 August 2023 (first McLaurin Affidavit); and
(b)affirmed 19 September 2023 (second McLaurin Affidavit).
Grounds of Review
By reference to the Amended Application, the applicant relies on grounds of review which can be summarised as follows (particulars omitted):
(a)Ground 1 – the Authority failed to consider a claim raised by the applicant, namely that he feared harm because of fighting and conflict between certain militias in or near his home area.
(b)Ground 2 – the Authority overlooked that the Sudanese Authorities may have become aware in or about 2013 of the applicant’s residence in Israel due to his Israeli temporary visa or exit stamp, or alternatively, that it overlooked the real possibility that the authorities saw the applicant’s passport when he passed through Khartoum airport in or about 2013, and was therefore at risk of harm.
Ground 1
In respect of ground 1, the applicant says that (by the February Statutory Declaration) he claimed to fear harm on return to Sudan in the following way:
When I arrived in Juba, Southern Sudan, I was shocked ... I learned that armed militias and Jangawit gangs are everywhere, while the rebels in our area engaged in aggressive conflicts with the government forces, which have increased significantly .. and my life was at serious risk again…
Earlier in the February Statutory Declaration the applicant had referred to the commencement of a civil war in Sudan a few years after 2002, saying that:
…life became very dangerous, armed militias and political movements started to fight the government authorities, especially in South Kordofan and Darfour where militias are engaged in violent struggle to control the area.
While the applicant’s home area is a city in the state of North Kordofan, it is said to be reasonably proximate to South Kordofan (CB 152) where there was said to be “active conflict” between “the Sudanese Armed Forces and the Sudan Revolutionary Front, being a coalition of non-Arab insurgent groups” (CB 152).
The applicant says that the Authority’s “purported” consideration of that claim gives rise to error because a fair reading of the applicant’s February Statutory Declaration was that he feared physical harm:
(a)from “armed militias” and “Jangawit gangs”; and
(b)associated with the “rebels in our area” “engaged in aggressive conflicts with the government forces”, being the civil war conflict between “armed militias and political movements” and “the government authorities” “especially in South Kordofan”.
The applicant says that a sub-set of the claim to fear physical harm from generalised conflict was a claimed fear of harm from the fighting between armed militias, rebels and government forces which was clearly occurring in South Kordofan. The applicant says the delegate recognised such a claim as being made by finding that the applicant would not be subjected to generalised violence upon return to his home area and he did not face a real chance of serious harm by armed militia groups for any of the reasons set out in s 5J(1)(a) of the Act.
The delegate accepted that there was active conflict in the states bordering North Kordofan including in South Kordofan noting how far it was from the applicant’s home area, but found that there was no “active conflict in [the home area]” at the time of the delegate’s decision. The applicant says the delegate appeared to reason that, therefore, there would not be active conflict in the home area in the reasonably foreseeable future and reached a similar conclusion in considering the complementary protection criteria (CB 154 to 155).
The applicant contends that using a sub-heading of “Harassment” (preceding [19] to [20] of the decision) is “odd” on the basis that the applicant did not use that term in his statutory declaration, nor did the delegate. The applicant says the Authority appears to have chosen this term to describe a group of claims by him, but that “harassment” is an inapposite/inadequate term to encapsulate the claim to fear physical harm from conflict. While saying that the use of the term harassment does not involve jurisdictional error in and of itself, the applicant says it is relevant in considering whether the Authority dealt with the claim to fear harm from generalised violence in his home area, including the applicant’s claimed fear of harm from the fighting between armed militias, rebels and government forces alleged to be occurring in South Kordofan.
At [19] of its reasons, the Authority said that the applicant’s claims concerning “harassment” had changed from time to time, two examples of which were given. The applicant says that by his evidence, and the answers he gave at the protection visa interview, he did not withdraw the claim to fear physical harm from conflict. The applicant says that while the delegate found that the applicant has not been targeted or harmed by the armed militias operating in Sudan in the past, it at least went on to assess whether the applicant faces a real chance of serious harm or real risk of significant harm from the armed militias upon return to his home area (CB 152 to 153).
The applicant alleges that when undertaking its review of the delegate’s decision the Authority had a statutory obligation to consider the claims which were dealt with by the delegate, citing ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164 at [67] per Reeves, Banks-Smith and Anastassiou JJ.
In essence, the applicant’s first complaint about the IAA decision is that, while the Authority took the first step set out at [38] above, unlike the delegate it did not go on to undertake the second part of that assessment at [38] by assessing whether the applicant would face harm from armed militias upon return to his home area.
The applicant says the critical question for the Court is whether the Authority’s finding in the last sentence of [20] includes, and addresses, the applicant’s claim to fear physical harm from generalised conflict, including fear of harm from the fighting between armed militias, rebels and government forces in South Kordofan.
The applicant analyses the Authority’s findings at [20] thusly:
(a)in the first sentence of [20] the Authority was not satisfied that the applicant had been subjected to harassment of any kind in the past. The applicant does not cavil with that finding concerning past harm;
(b)in the second sentence of [20] the applicant says that while the Authority acknowledged that country information indicated significant unrest, conflict and security problems in many areas of Sudan, including areas that neighbour the applicant’s state, it then limited the relevance of that material to whether the applicant had provided a “coherent or credible account of having been the victim of harassment of any kind”. The applicant says this is a backward-looking application of the country information;
(c)in the third and fourth sentences of [20], the Authority considered and rejected an apparent claim that the applicant would face problems “as a Darfuri” before then:
(d)making what is said to be the critical finding for the purposes of ground 1:
I am not satisfied that there is a real chance that he would, on return, face harassment amounting to serious harm for any reason.
The applicant then says that the answer to whether the Authority’s final sentence at [20] can be taken as considering the claim to fear physical harm from conflict must be “no”, because:
(a)to have properly dealt with that claim the Authority would have needed to consider country information concerning the current security situation in and around the applicant’s home area. The applicant says that despite the delegate having undertaken that task, the Authority did not; and
(b)the Authority used the term “harassment” which the applicant says does not include physical harm arising from conflict between different groups in an area.
In response to ground 1, citing AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 per Collier, McKerracher and Banks-Smith JJ, the first respondent submitted that the Tribunal is only required to consider such claims where they are either the subject of substantial clearly articulated argument, relying on established facts, or clearly emerge from the materials.
The first respondent says that the applicant’s February Statutory Declaration did not contain a claim that general violence resulted in his decision to depart Sudan but rather than he had departed for fear that government officials would discover his recent return from Israel. The first respondent says the applicant made no express claim to have been previous subjected harm by militias or as a result of the conflict in or around his home area. At interview, the applicant said that he had only mentioned the militia in response to a question about the presence of armed groups in his home area, and clarified that he had not himself, been affected by these groups (CB 212 at [19]). The Authority’s ultimate conclusion at [19] is said by the first respondent to have been supported by its finding that the applicant had not provided a “coherent or credible” account of having been the victim of harassment of any kind.
The first respondent says that the error alleged by ground 1 is not established merely because the Authority and the delegate addressed the applicant’s claims differently, particularly in circumstances where the applicant never advanced a claim of fear of physical harm arising from conflict near his home area. The first respondent says that even if such a claim did arise for consideration, and the Authority was found not to have considered it, such an error would not be material because (as was found both by the delegate and the Authority) there was no conflict in the applicant’s home area and, the applicant’s claims about past harassment were found by the Authority to be vague and not credible.
Consideration
For the following reasons, the error alleged by ground 1 cannot be accepted.
To the extent that the applicant says that neither he nor the delegate used the term “harassment” in relation to his claims, this must be rejected. The applicant’s entry interview records the following question and answer (errors in original but with emphasis added) (CB 12):
Why did you leave your country of nationality (country of residence)?
Because of the injustice and persecution. If you speak the truth you find yourself either dead or crazy. What prompted yo to leave when you did? The harassment and any office of the intelligence knew about me I would be dead or crazy. Why? Because I went to Israel. I went to Israel because of the illness of my father? Why? to earn money to pay for treatment.
Even if the term “harassment” had not been expressly used by the applicant, there was no error in the Authority using the description in relation to the applicant’s various claimed fears, including a fear of physical harm.
First, because the applicant made relatively general claims about the harm he feared including:
(a)“I will be subject to physical abuse and serious bodily harm”;[3] and
(b)“My ex-partner will abuse me and put my life at risk my family also will put pressure on me to live with him and accept being abused systematically due to cultural issues”.[4]
[3] CB 62 Q90
[4] CB 64 Q94
Next, by reference to ss 5J(4) and 5J(5)(b) of the Act, serious harm for the purposes of the definition of persecution includes “significant physical harassment” of the person.
Further, the verb “harass” is defined[5] as:
1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid.
[5] Macquarie Online Dictionary, last accessed 4 March 2024
The applicant’s claims to fear harm from generalised violence can, fairly, be summarised as constituting a form/forms of harassment.
For these reasons, the claim to fear physical harm from conflict as now sought to be defined by the applicant in the present case is consistent with the description used by the Authority, of harassment.
As such, while expressed with slightly different nomenclature than that used by the delegate, the Authority can be taken to have considered the claim as raised by the applicant, namely that he feared harm because of fighting and conflict between certain militias in or near his home area, within its findings at [19] to [20] regarding claimed harassment. I agree with the submissions of the first respondent (in particular at [45] to [46] above) that the claims as made by the applicant did not otherwise contain a claim that general violence resulted in his decision to depart Sudan, but rather than he had departed for fear that government officials would discover his recent return from Israel.
The Authority did consider the clearly articulated claims as they emerged from the materials: see AYY17 (supra) at [18] per Collier, McKerracher and Banks-Smith JJ.
Ground 1 is not made out.
Ground 2
By ground 2, the applicant alleges that the Authority fell into error at [24] to [25] of its decision, by overlooking:
(a)a real risk that the Sudanese authorities saw an Israeli visa or exit stamp in the applicant’s passport when he passed through Khartoum airport in July 2013, and therefore may have become aware of the applicant’s travel to Israel; and/ or
(b)the “real possibility, even if less than 50%” that the Sudanese authorities saw an Israeli temporary visa or exit stamp in the applicant’s passport when he passed through Khartoum airport in or about July 2013.
As noted, this ground turns upon [24] of the Authority’s decision which is extracted in full at [17] to [18] above. In light of the Authority’s acceptance at [23] of its decision that “it is a crime for Sudanese citizens to travel to Israel”, the applicant says that if either of the situations the Authority went on to outline at [24] had in fact occurred, the applicant would face a real chance of serious harm on return to Sudan (CB 213 to 214).
The applicant’s allegation of jurisdictional error relies upon what is said to be a failure to apply the “what if I am wrong?” test: see Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [60] to [67] per Sackville J (Rajalingam). At [60] of Rajalingam, Sackville J said the following:
…the ultimate question before … the RRT is whether it is satisfied that the applicant has a well‐founded fear of future persecution, in the sense of having a “real substantial basis” for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
The first respondent says that the Authority did properly apply the principles in Rajalingam when it considered at [24] whether the applicant might be at risk of harm because his passport might have contained an Israeli visa or stamp. The first respondent also says that there was no claim made by the applicant that Sudanese authorities might have viewed his passport when he departed Sudan for Australia but rather, that a people smuggler helped him get through the airport by taking the applicant’s passport from him. The first respondent says that even accepting the possibility that the fact of the applicant’s time in Israel might have been/become known, the Authority found on a different basis. Namely, that without any other profile of concern or adverse characteristics, country information indicated that while it may result in such people being questioned and in some cases, mistreated, there was no suggestion they would be “hunted down” merely because they had been to Israel. The first respondent says that these findings were open to the Authority and have the effect that there was not a sufficient margin of doubt in the Authority’s findings as to warrant application of the “what if I am wrong?” test.
Consideration
Although the Authority was unable to find with certainty whether the applicant’s passport did or did not contain a stamp or visa from Israel, it found that the applicant did not pass through customs in Khartoum in 2012 on return from Israel, and that the applicant having been dispossessed of his passport in Indonesia meant it would not to alert authorities to his previous time in Israel, if he were returned to Sudan (CB 214 at [24]).
By its findings at [24] the Authority did not foreclose reasonable speculation about the possibility that the applicant would be identified in the future as a person who had been in Israel. To the contrary, it was reasonably open to the Authority to conclude, as it did, that there was nothing to alert the Sudanese authorities to the fact of the applicant’s previous time/residence in Israel if he were returned to Sudan. That was because:
(a)the Authority accepted the applicant’s evidence that he had not passed through customs or immigration on return to Sudan in 2012 from Israel, thereby meaning that the passport had not been sighted at that juncture, even if it bore a permanent marking or notation denoting time in Israel;[6]
(b)it was unlikely that the applicant had been assisted by a smuggler through Khartoum airport on departure to Australia, but the fact of his successful passage indicated that even if his passport did bear a permanent Israeli marking it had not been problematic to his departure;
(c)the applicant had relinquished his passport while in Indonesia and, as such, would not be using it to return to Sudan; and
(d)for the reasons expressed at [25], the other manners and methods by which the applicant also claimed his presence in Israel might be known to the authorities had also been rejected.
[6] CB 213 to 214 at [24]
The applicant thereafter takes issue with country information relied upon by the Authority in the balance of [25] before it reached a conclusion about whether the applicant would face a real chance of harm by reason of his having been in Israel. The report in question forms Annexure “HM1” to the second McLaurin Affidavit and is entitled “Situation of persons from Darfur, Southern Kordofan and Blue Nile in Khartoum”[7] (UK Home Office Report), which was before the Authority and referred to in its reasons for decision.[8]
[7] August 2016
[8] See footnote 5 of the reasons for decision
The UK Home Office Report contains information relating to the risk of harm to persons from Darfur and the two areas of Khartoum, including treatment of such persons by authorities upon arrival at Khartoum International Airport with references to the risk of harm to persons who have spent time in Israel.
The applicant draws attention to a number of references throughout the UK Home Office Report,[9] which he says supports the position that in circumstances where the Sudanese authorities “become aware a Sudanese national visited or spent time in Israel, the national faces a real chance of serious harm”, irrespective of whether they are returning directly from Israel (i.e., a “returnee” or a “deportee”), or had previously spent time there. The applicant says that the aforementioned references indicate, inter alia, a concern held by the Sudanese authorities that returnees from Israel may have been recruited by the Israeli government as spies, and that treatment upon arrival “depends in part on residence in Israel”. The applicant says that the relevance of these observations is in their equal application to Sudanese nationals returning directly from Israel and those who had previously resided in Israel, the latter being the applicant’s position.
[9] Pages 14 to 15, 18, 23, 49, 65 to 66, 82 and 115 of the UK Home Office Report
In respect of the Authority’s finding that the applicant would not be “hunted down” merely because he had resided in Israel, the applicant says that the precise question for the decision maker is whether the country information indicates that an applicant faces a real chance of serious harm.
However, I agree with the submissions of the first respondent that the Authority’s references to the UK Home Office Report throughout its reasons were an accurate summary of its content. A fair reading of the decision together with the UK Home Office Report renders the Authority’s observation at [25] that there was “no suggestion that a person with no other profile or adverse characterisation would be hunted down…merely because they had been to Israel” to be one which is available on that material.
The finding at [25] is implicitly premised on the basis that the applicant may be identified as a person who had spent time in Israel. That assumption was based on the finding that any passport he presented on return would not reveal past travel to Israel by reason of having been relinquished to a people smuggler in Indonesia and that he would be therefore travelling on a fresh passport which bore no such indications. I accept the submissions of the first respondent that there is no information in the UK Home Office report to suggest that Sudanese authorities, if aware of the applicant’s past travel to Israel, would be waiting at the airport to apprehend him upon his return. The UK Home Office Report refers to the risk at the airport of “returnees” and “deportees” from Israel. The applicant (on return from Australia) would not be such a person. Rather, his claim was that Sudanese authorities might detect him as being a person who had travelled to/resided in Israel in the past. That profile, and any risk which attended it, had been expressly addressed by the Authority in its findings at [25].
Having regard to the materials which were before the Authority, and on a fair reading of its decision, I am not satisfied that it failed to consider that Sudanese authorities might have become aware in or about 2013 of the applicant having been in in Israel, nor the possibility that the authorities saw the applicant’s passport when he passed through Khartoum airport.
There is no error as alleged by ground 2.
CONCLUSION
For the foregoing reasons the decision of the Authority is not affected by jurisdictional error, absent which it is a privative clause decision and the application, as amended, must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 4 March 2024
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