Toto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 3382

Toto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3382 (6 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3029

Re:Mohamed Sawag Ali Toto

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:6 August 2020

Date of written reasons:        3 September 2020

Place:Sydney

The decision of a delegate of the Respondent dated 13 May 2020 is set aside and, in substitution, the mandatory cancellation of the Applicant’s ‘Refugee and Humanitarian (Class XB) Subclass 202 – Global Special Humanitarian’ visa is revoked.

...............................[sgd].........................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation – failure to pass the character test – Sexual offence - indecency with girl over 16 – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – non-refoulement obligations – identification of home country –Sudan and South Sudan - strength, nature and duration of ties to Australia – decision set aside and substituted 

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

DFTD v Minister for Home Affairs [2020] FCA 859
DOB18 v Minister for Home Affairs [2019] FCAFC 63
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FYBR   v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
Long and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2313
Minister for Immigration and Border Protection and BCR16 [2017] HCA Trans 240
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385

YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

3 September 2020

INTRODUCTION

1. The Applicant was born in a village called Ninduor near the regional centre of Kadugli, capital of South Kordofan state, in what is now the Republic of Sudan (Sudan). Kadugli lies approximately 100 kilometres north of the border with South Sudan. He hails from the Nuba Mountains[1] and his ethnicity is Moro Nuba, a non-Arabic (African) ethnic group. At some point he lived in Jabrona, a suburb on the northern outskirts of Khartoum, the capital of Sudan.

   [1] For a history of this region, see Guma Kunda Komey, ‘Civilians’ Survival Strategies amid Institutionalized Insecurity and Violence in the Nuba Mountains, Sudan’ (Sudan Working Paper No 4, Department of Geography, University of Bahri, Khartoum, September 2016).

2. The Applicant is now 47 years old. He came to Australia in 2005 when he was 32 years old. He has five children and they will be referred to as Child 1 – 5, in order of oldest to youngest. Two of his children are below the age of 18, and they assume a special significance in these proceedings.[2] His youngest child, Child 5, was born in Australia. He is 11 and will turn 18 in 2027. Child 4 is 17, and she will turn 18 in early 2021.[3] The remaining three children are in their early to mid-twenties. His oldest, Child 1, is 26 and has two children of her own, both under seven. Child 2, a son, is 24 and Child 3, a daughter, is 20.

   [2] G2/21; G2/24.

   [3] G2/21 [66].

3. His wife and his children are all Australian citizens.[4]

   [4] G2/21 [67]; G2/24 [94].

4. He also has two sisters and a brother who live close to Khartoum, the capital of Sudan.  He last spoke to them around 2015.[5]

   [5] Oral evidence, see transcript, 20 July 2020.

5. The Applicant has not left Australia since he arrived on 25 November 2005, when he was granted a visa, entitled ‘Refugee and Humanitarian (Class XB) Subclass 202 – Global Special Humanitarian’. He has lived here continuously for almost 15 years, and with one major and one minor matter, has not been in trouble with the law.

   PRESENT PROCEEDINGS

6. On Australia Day, 26 January 2016, the Applicant committed an offence of indecency while travelling on a train in Sydney.  He was severely intoxicated. He approached a 22 year old female passenger, to whom I shall refer as the victim. He exposed himself to her and made masturbatory movements around his genitals. He caused extreme distress to the victim, reducing her to tears. She reported him to the police; he was arrested and charged with an offence of indecency with a person 16 years or over.

7. On 4 May 2016, the Applicant was sentenced in the Local Court of NSW to a term of imprisonment of 18 months with a non-parole period of 12 months.[6] On 28 July 2016, the sentence was varied by the District Court to a term of 12 months with a non-parole period of three months.[7] The non-parole period expired a few days later, on 03 August 2016.

   [6] G6/39-40.

   [7] G5/35-38.

8. A person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more: Migration Act 1958 (Cth) (the Act), section 501(7)(c).

9. By letter dated 2 August 2016, the Department of Immigration and Border Protection advised the Applicant that his visa was cancelled from that date under section 501(3A) of the Act.[8] This Department is now the Department of Home Affairs (the Department), and the relevant Minister, and the Respondent in this matter, is the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister).

   [8] G15/73.

10. On 3 August 2016, the non-parole period expired and the Applicant was transferred to immigration detention.

11. On 2 May 2018, the Assistant Minister decided not to revoke the original decision to cancel the visa. On 24 December 2019, the Federal Court of Australia quashed that decision, and ordered that the matter be remitted for determination according to law. On 5 March 2020, the Applicant was invited to make further representations which he did on 18 March 2020. On 13 May 2020, a delegate of the Minister decided not to revoke the cancellation under section 501CA(4) of the Act.[9]

    [9] G2/11-30.

12. On 19 May 2020, the Applicant appealed to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision not to revoke the cancellation of his visa.[10]

    [10] G1/3-7.

13. It is now some four years since the original cancellation decision in 2016, during which time the Applicant has been in immigration detention.[11] If the present decision goes against him, he will be held in immigration detention while his status is resolved. The risk of prolonged immigration detention is not a factor per se to be considered in exercising the discretion to revoke the mandatory cancellation (see DFTD v Minister for Home Affairs [2020] FCA 859 at [54], per Snaden J); but uncertainties as to the robustness of his nationality claims may be relevant to assessing the extent of impediments that he may face if returned to his home country. In general, I note that decision-makers are required to make decisions in a timely manner once satisfied that a person does not pass the character test. ‘Timely decisions are also beneficial to the client in providing certainty about their future’.[12]

    [11] The four year detention is explained in terms of the litigation that took place during this period. On 28 November 2017 and 24 December 2019 Justice Perry of the Federal Court made orders setting aside decisions dated 7 April 2017 and 27 November 2019 made by or on behalf of the Minister for the purpose of removing the Applicant from Australia: G17/85; G24/109.

    [12] Direction No. 79, clause 6.2(3).

    EVIDENCE

14. The following evidence was tendered to the Tribunal:

    Applicant’s materials

    ·Applicant’s Submissions filed 17 June 2020;

    ·Undated support letter of Omima Aboushanb (Applicant’s wife);

    ·Undated support letter of Child 2 (Applicant’s son);

    ·Undated support letter of Child 3 (Applicant’s daughter);

    ·Undated support letter of Child 4 (Applicant’s daughter);

    ·Support letter of Temas Ibrakim Almani, secretary of the Omarun Nuba Moro Community.

    Respondent’s materials

    ·The Respondent’s Statement of Facts, Issues and Contentions dated 1 July 2020;

    ·The Respondent’s further submission dated 31 July 2020;

    ·Documents provided under section 501G(2) of the Act, ‘the G-documents’;

    ·The Respondent’s Supplementary material:

    S1       1 - 2                February 2015 South Kordofan State Administrative map

    S2       3 - 4                March 2012 Map of Sudan

    S35 - 110            September 2018 Document title 'Statelessness and     

    Citizenship in the East African Community' commissioned by UNHCR

    S4111 - 128        Undated English translation of the Sudan Nationality Act

    1994 and the 2011 and 2018 amendments

    S5       129 - 146        7 July 2012 South Sudan Nationality Act 2011

    S6147 - 150        5 December 2019 Applicant's IHMS Health Summary Report

    for the Commonwealth Ombudsman

    S7151 - 154        14 July 2020 Applicant's IHMS Health Summary Report for

    the Commonwealth Ombudsman

    S8       155 - 182        27 April 2016 DFAT Country Information report - Sudan

    S9183 - 208        5 October 2016 DFAT Country Information Report - South

    Sudan

    THE HEARING

15. The matter was heard by the Tribunal over four days: 20, 21, 24 July and 5 August 2020. A further hearing took place on 6 August 2020 for the purpose of notifying the parties as to the outcome of the application, by way of an oral decision, as required by the 84 day deadline. Parties all appeared by video.

16. The Applicant was self-represented. He was functionally illiterate in both English and Arabic.[13] Although assisted by an Arabic interpreter, it was obvious that he was disadvantaged by the absence of legal representation. He did not seek an adjournment for the purpose of arranging legal representation. He said that he did not have money for a lawyer.

    [13] Transcript, 21 July 2020, p 132 [15].

17. The Applicant gave evidence on 20 July.[14] The matter progressed very slowly due to the lack of representation and the need for interpretation. Out of an abundance of caution, the Tribunal arranged an extra sitting day on 24 July to allow the Respondent’s Statement of Facts, Issues and Contentions, to be translated to the Applicant, along with relevant parts of Direction No. 79. This step was taken to ensure that the Applicant was fully apprised of the Respondent’s submission; as well the basis for the Tribunal’s decision-making process. The oral translation of the Respondent’s Statement of Facts, Issues and Contentions, and Direction No. 79 occurred on 24 July, and the Applicant indicated after hearing the case against him that there was no further material that he wished to submit to the Tribunal.

    [14] Transcript, 29 July 2020, p 15.

18. A further critical question arose at an early stage of the hearing relating to the Applicant’s country of origin. In 2011, South Sudan seceded from Sudan after a bloody civil war.[15] Neither the Republic of Sudan in its present form nor the state of South Sudan existed when the Applicant left Sudan. In affirming the decision not to revoke the mandatory cancellation, the delegate did not address this issue and proceeded on the basis that the Applicant would be returned to Sudan. The Applicant’s various claims were assessed on that basis.[16] With regard to non-refoulement claims, the delegate was unable to make any determination and noted that the Applicant was able to make a claim for a protection visa.[17]

    [15] See Respondent’s Supplementary material S9: DFAT Country Information Report – South Sudan, 5 October 2016 [2.1] – [2.5].

    [16] G2/25.

    [17] G2/24.

19. In view of the recent decision of the Full Federal Court in DQM18 v Minister for Home Affairs [2020] FCAFC 110, I made orders specifically relating to the identification of the country to which the Applicant would be returned and any consideration of prolonged or indefinite detention. The Respondent was granted leave to file evidence relating to the country to which the Applicant would be returned, and evidence of mental health assessments conducted of the Applicant while in immigration detention, together with an Outline of Written Submissions relating to the country to which the Applicant would be returned and any consideration of prolonged or indefinite detention.

20. The Respondent’s solicitor acknowledged that given the secession of South Sudan from Sudan, and the representations made by the Applicant in relation to both countries, that it was incumbent on the Tribunal to identify the country of return. He indicated that he would like to obtain specific instructions from the Department before making his final submissions with regard to the impediments that might be faced by the Applicant.[18]

    [18] Transcript, 21 July 2020, p 88.

21. When the hearing resumed on 5 August, the Respondent submitted that it was a matter for the Tribunal, based on the evidence before it, including the Applicant’s evidence, to make a determination as to which country he would be returned. He filed supplementary evidence relating to the country to which the Applicant would be returned. He submitted that the evidence favoured a finding that the country of return was Sudan. This is further discussed at [34] - [50].

    FINDING ON CHARACTER TEST

22. Under section 501(3A) of the Act, the Minister must cancel a non-citizen’s visa if the Minister is satisfied that the non-citizen does not pass the character test, because the person has a substantial criminal record, having received a sentence of imprisonment of 12 months or more; and the person is serving a sentence of imprisonment on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.  A decision under section 501(3A) is not reviewable by the Tribunal: section 500(4A)(c).

23. Under section 501CA(3)(b) of the Act, the Minister must invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

24. Under section 501CA(4), the Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked.

25. If the delegate of the Minister decides under section 501CA(4) not to revoke the cancellation, an application may be made to the Tribunal for review of the decision: section 500(1)(ba).

26. The Tribunal is required to consider each of the limbs arising under section 501CA(4): first, whether the person passes the character test (as defined in section 501); and second, if the non-citizen does not pass the character test, whether there is ‘another reason’ why the original decision should be revoked.

27. The decision must be revoked if the Tribunal, standing in the Minister’s shoes, is satisfied either that the person passes the character test (as defined by section 501); or that there is another reason why the original decision should be revoked. In section 501CA(4), ‘may’ is to be interpreted as ‘must’.[19]

    [19] If the conditions of section 501CA(4) are satisfied then the mandatory cancellation decision must be revoked: see YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, at para [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, per Collier J at [31].

28. The question whether a person passes the character test is a matter upon which a finding of fact must be made by the Tribunal. However, as a matter of law, a person does not pass the character test if he or she has a ‘substantial criminal record’: section 501(6)(a); and a person has a ‘substantial criminal record’ if he or she has been sentenced to a term of imprisonment of 12 months or more: section 501(7). Therefore, as a matter of law, a person sentenced to a term of imprisonment of 12 months or more has a substantial criminal record and does not pass the character test.

29. In summary, the Applicant does not pass the character test if he or she has a substantial criminal record by reason of being sentenced to 12 months or more for an offence.

30. The Applicant does not dispute the fact that he was sentenced by the District Court on 28 July 2016 to a term of imprisonment of 12 months for the offence of committing an act of indecency with a person over 16 years of age.[20]

    [20] G5/35-38.

31. In his personal statement, he says

    I accept that because of the sentence of custody imposed upon me by the courts (12 months), I do not satisfy the character test.[21]

    [21] G28/121.

32. I find that:

    (a)The Applicant was sentenced on 28 July 2016 to a term of imprisonment of 12 months for the offence of committing an act of indecency with a person over 16 years of age;

    (b)He therefore has a substantial criminal record within the meaning of section 501(7)(c); 

    (c)He therefore fails the character test. 

33. Therefore, the question for the Tribunal is whether there is ‘another reason’ why the mandatory cancellation should be revoked: section 501CA(4)(b)(ii).

    IDENTIFYING THE COUNTRY OF RETURN

34. The political entity known as Sudan that the Applicant left more than 15 years ago no longer exists. It was divided in 2011 between north and south, to a great extent on ethnic lines.  At the risk of gross oversimplification, the Republic of Sudan in the north is largely Arabic and Islamic; the state of South Sudan, largely African and Christian. The war that led to this split was one of the continent’s bloodiest conflicts. The requirement to identify the relevant country is no easy matter when dealing with a divided state where the state parties remain in a state of some enmity.

35. I return now to the preliminary question raised above: to which country will the Applicant be returned in the event that the mandatory cancellation is not revoked?

36. Ideally, the country of origin should be clearly indicated by the original decision-maker within the Department. It is not possible to apply Direction No. 79 unless any claims of harm made by the Applicant, or impediments that might be experienced if returned, are tested by reference to a particular geopolitical entity. This applies with special urgency where there are, as there are here, non-refoulement claims.  In his personal statement, the Applicant stated:

    “I submit that I face harm and death, if I were to be returned to the War torn country of South Sudan”.[22]

    [22] Applicant’s Submissions filed 17 June 2020 [27].

37. The delegate did not advert to the split between Sudan and South Sudan and therefore did not make a specific determination as to the country or origin, or the country to which he would be removed.

38. Having obtained specific instructions from the Department, the Respondent’s solicitor submitted that it was a matter for the Tribunal to make a determination as to the country of origin as part of the process of applying Direction No. 79.  He provided evidence relating to the state of Sudanese nationality law, including an English translation of the Sudan Nationality Act 1994 (Sudan Nationality Act) and the 2011 and 2018 amendments.

39. The Sudan Nationality Act recognised nationality based upon birth if a person was born in Sudan or his father was born in Sudan. In 2011 the Sudan Nationality Act was amended by inserting a new section 10 in place of the previous section. Section 10(2) and (3) provide:

    (2) Sudanese nationality shall automatically be revoked if the person has acquired, de jure or de facto, the nationality of South Sudan.

    (3) Without prejudice to Section 15, Sudanese nationality shall be revoked where the Sudanese nationality of his responsible father is revoked in accordance to section 10(2) of this Act.

1. These provisions were replicated in similar terms in the 2018 Sudanese Nationality Act (Amendment) 2018. The automatic revocation of citizenship could be exempted by the Minister ‘if it is proved that his ancestors domiciled in Sudan in or before the first of January 1924’.

2. The Respondent also provided legislation from South Sudan, the Nationality Act, 2011 (South Sudanese Nationality Act).  Section 8 provides:

   8. Eligibility Requirements

   (1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements—

   (a) any Parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or

   (b) such person belongs to one of the indigenous ethnic communities of South Sudan.

   (2) A person shall be considered a South Sudanese National by birth, if at the time of the coming into force of this Act—

   (a) he or she has been domiciled in South Sudan since 1.1.1956; or

   (b) if any of his or her parents or grandparents have been domiciled in South Sudan since 1.1.1956.

   (3) A person born after the commencement of this Act, shall be a South Sudanese National by birth if his or her father or mother was a South Sudanese National by birth or naturalization at the time of the birth of such a person.

3. Section 8(1)(b) of the South Sudanese Nationality Act extends nationality to persons who belongs to one of the indigenous ethnic communities of South Sudan, and under Sudanese law Sudanese citizenship is automatically revoked from a person who has acquired, de jure or de facto, the nationality of South Sudan. Unfortunately, the class of persons who make up the indigenous ethnic communities of South Sudan is not clearly defined.

4. The legal arrangements between the new political entities occupying the territory of what was previously Sudan are described by Dr Bronwen Manby in a study produced for the United Nations High Commission for Refugees.  The report states:

   South Sudan seceded from Sudan in 2011. During the colonial period, Sudan was governed as one of two provinces falling under the British-Egyptian condominium imposed in 1899. Independence was hastily granted to Sudan in 1956 without a formally negotiated rule on attribution of citizenship on transfer of sovereignty, and the first post-independence nationality law was adopted in 1957. At the time of the secession of South Sudan, the law in force dated from 1994, as amended in 2005 following the Comprehensive Peace Agreement (CPA) that ultimately led to independence. The Transitional Constitution of South Sudan that came into force after secession did not include transitional provisions relating to nationality, but repeated the wording of the 1998 and 2005 constitutions of the Republic of Sudan, that: “Every person born to a South Sudanese mother or father shall have an inalienable right to enjoy South Sudanese citizenship and nationality”, and explicitly permitted dual nationality. A South Sudanese Nationality Act was adopted in June 2011, just before the secession, and provided additional detail. The 1994 law of Sudan had some influence on this text, but it was mainly drafted anew. [23]

   [23] Manby, B, Statelessness and Citizenship in the East African Community, A Study by Bronwen Manby for UNHCR, September 2018, p 8; S3/22.

5. With regard to South Sudanese law, the report notes:[24]

   [24] Manby, B, Statelessness and Citizenship in the East African Community, A Study by Bronwen Manby for UNHCR, September 2018, p 58; S3/72-74.

   South Sudan

   South Sudan’s nationality law is very broadly drafted: it attributes nationality at birth, wherever a person is born, to people who belong to the “indigenous ethnic communities” of South Sudan; those with a parent, grandparent or great-grandparent who was born in South Sudan, and those whose ancestors have been resident in the territory since 1956. In principle most—though not all—of those habitually resident in South Sudan who desire to do so should be able to obtain recognition of South Sudanese nationality under this law; either by birth or, if resident for more than ten years, by naturalisation.

   Nonetheless, the fundamentally ethnic definition of nationality in Section 8(1)(b) of the South Sudan Nationality Act creates difficulties in deciding which groups in fact form the “indigenous ethnic communities of South Sudan”. Neither the Transitional Constitution of South Sudan nor the South Sudan Nationality Act provides a list of these groups (by contrast with Uganda), nor outlines the criteria to be deemed a member of one of those communities. This definition creates potential problems both for those of South Sudanese origin who have for many years or generations been resident in (north) Sudan, and for minority or crossborder ethnic groups who may not be commonly understood to be an ethnic community of South Sudan. [emphasis added]

   In practice, implementation of the nationality legislation has been slow and challenging. Even without the breakdown in the government from late 2013, the lack of an existing national civil registry, the history of forced displacement, and the lack of administrative infrastructure in many parts of this new country would create significant obstacles to the efficient implementation of nationality legislation. In practice, there are reports that certain vulnerable groups, including women without male relatives to represent them; orphaned children; returned refugees, and members of some ethnic groups, have faced difficulties accessing proof of citizenship when they have applied.

   Those applying for documents recognising South Sudanese nationality are required to show that they are members of one of the “indigenous ethnic communities” (unless they are of obviously “foreign” ancestry applying on one of the other grounds). Regulations adopted under the Nationality Law provide that “where documentary evidence is not available to support an application” witness testimony may be taken into account from a range of community or traditional leaders.  Applicants are tested on their ability to speak Juba Arabic; required to bring letters of support from traditional authorities, and judged according to their skin colour and facial characteristics. Members of ethnic groups from Equatoria, on the border with Uganda, such as the Acholi or Kakwa, find it more difficult to obtain South Sudanese documents, as well as those of mixed ethnicity and who look “Arab”, and others who have lived outside South Sudan for many years.

   The very broad attribution of nationality under the law also creates problems for those resident outside the country who do not wish for South Sudanese nationality. In (north) Sudan, it is already the case that people who are believed by the Sudanese authorities to fit the definition under the law of South Sudan are being deprived of Sudanese nationality, under legal amendments that prohibit dual nationality with South Sudan (but no other country). Many of those being deprived of Sudanese nationality consider themselves Sudanese and have little or no effective connections to South Sudan. Others do see themselves as South Sudanese, but the South Sudanese representatives in Khartoum have not conducted effective outreach to reach all those potentially needing such documents.

   Northerners and cross-border ethnic groups

   UNHCR estimated that there were just over 80,000 people of northern origin living in South Sudan in 2011, at the time of state succession. Whereas traders and civil servants generally possessed Sudanese documentation, the larger percentage of this figure was made up of what were then internally displaced persons from conflict in Darfur (some of them resident for many years and others more recent arrivals), most of whom had no documents. The Darfuris also face difficulties in obtaining documents in (north) Sudan, and given the poor relations between Sudan and South Sudan, those who are now refugees in South Sudan (and especially their children) are at risk of not being recognised as citizens of either state.

   Some ethnic groups are not clearly from Sudan or South Sudan. For example, the Kresh, Kara, Yulu, Frogai and Bigna are all ethnic groups that exist on both sides of the border between South Darfur in Sudan and Western Bahr el Ghazal state in South Sudan, and many families have members living on both sides of the border. It remains unclear how such groups and individuals will be treated by South Sudan in the longer term, once administration is re-established.

   Ngok Dinka of Abyei

   The “Abyei Area” that straddles the border was supposed to have its own referendum on whether it would join Sudan or South Sudan. This never took place, because the parties were unable to agree on the criteria for determining who should vote in such a referendum. The Republic of Sudan asserts that the territory should remain under its jurisdiction. In principle the Ngok Dinka, whose traditional territory it is, therefore retain their Sudanese nationality. However, individual members of the community face the risk of being treated as belonging to one of the “indigenous ethnic communities of South Sudan”, since they are a subgroup of the Dinka, one of the dominant ethnic groups in South Sudan. They may thus have difficulties asserting their Sudanese nationality. At the same time, they do not have any territory to return to in South Sudan, and the South Sudanese government has stated that the Ngok Dinka are not South Sudanese.

   Mbororo (Falata) pastoralists

   The Mbororo (also known as Falata) are a branch of the Fulani ethnic group found across West and Central Africa. They are largely nomadic pastoralists originating in West Africa whose migratory routes cross both Sudan and South Sudan, as well as Chad, Central African Republic, Democratic Republic of Congo and Cameroon. An Mbororo population has been established for a long time in Sudan, in both the northern and southern regions, many of them with ancestral roots in Nigeria: most arrived in Sudan in the early 20^th century; others are more recent arrivals. Some settled to become agro-pastoralists; others practise long distance nomadic pastoralism.

   Members of these communities primarily resident in Sudan had, prior to the Comprehensive Peace Agreement of 2005 and the secession of South Sudan in 2011, already faced difficulties in obtaining recognition of Sudanese nationality. During the transitional period, the relationship between the Mbororo and settled populations in the South deteriorated, especially in Western Bahr el-Ghazal and in the Western, Equatoria region neighbouring the Central African Republic, Democratic Republic of Congo and Uganda. The damage done by cattle to crops and access to water points are, as in the Sahel region, the main points of conflict; in South Sudan the “foreignness” of the Mbororo is emphasised by the fact that the great majority are Muslim, associated with the state from which the South has seceded. In 2007, Sudan People’s Liberation Movement (SPLM) leader and future President Salva Kiir threatened the Mbororo with expulsion from the South; some were resettled in Blue Nile State in Sudan, home to a longstanding Mbororo population, raising tensions in that region.249 More recent comments from South Sudanese officials also indicate that the Mbororo are not regarded as South Sudanese. Some may be able to establish nationality and obtain papers in South Sudan, if they can show descent from a person resident in South Sudan in 1956; others may have sufficient evidence of connection to Sudan or another state to obtain recognition of nationality there. However, for many there is no state where they are accepted: the nomadic pastoralist lifestyle is fundamentally not accommodated by the fixed systems of nationality established by the modern state.

   IDPs in South Sudan

   There are more than one and a half million internally displaced people in South Sudan, who are generally at some risk of statelessness, though the risk will vary according to circumstances. In 2016, the UN Special Rapporteur on internally displaced persons emphasised that:

   Documentation for all South Sudanese, including for all internally displaced persons and South Sudanese residing in the Sudan, is essential to allow a process leading to a durable solution. The issuance of national documentation is also a condition for the implementation of the Framework Agreement [between Sudan and South Sudan] on the Status of Nationals of the other State and Related Matters; the implementation matrix provides for accelerated forms of cooperation in providing nationals with documentation.

   UNHCR and UNICEF are making efforts to increase birth registration in South Sudan, including among the displaced, as well as to register IDPs in general.252 UNHCR since 2015 has also been implementing a project supporting the issuance of nationality certificates to people living in remote areas and to vulnerable IDPs, including in Juba, Bor and Wau, in collaboration with the Directorate of Nationality, Passports and Immigration. (footnotes omitted)

6. The Respondent’s solicitor referred to these passages and submitted that, despite the difficulties identified by Dr Manby, especially in the underlined section above, the Tribunal could be satisfied that the Applicant was entitled to Sudanese citizenship. He submitted that Applicant did not fall into any of the categories identified in this report. He therefore invited me to find that there was no danger of him being deprived of Sudanese citizenship. He invited the Tribunal to test any claims made by the Applicant by reference to Sudan rather than South Sudan.

7. I note that the Tribunal has not been provided with any direct evidence in the form of a birth certificate or other documentary evidence that the Applicant is entitled to citizenship of the Republic of Sudan.

8. The Respondent made the following submissions:

   (a)Having regard to the Applicant's claims and his evidence, and taking into account the country information that is before the Tribunal, the Respondent contends that the Tribunal should find that the country to which the Applicant would be returned is Sudan, and not South Sudan.

   (b)First, regarding the Applicant's place of birth, the Nuba Mountains is located in the state of South Kordofan in Sudan (see Supplementary material, S2).

   (c)Secondly, the Respondent contends that the Tribunal should be satisfied that the town near the Applicant's place of birth is the town of Kadugli (referred to at the hearing as 'Khaduliki), which is also located in the state of South Kordofan (S1 and S2).

   (d)Therefore, the Tribunal can be satisfied that the Applicant was born in Sudan, and the place of his birth continues to be in Sudan following the partition of the country to form South Sudan. Hence, the Applicant is a Sudanese national by birth (see subsection 4(1) of the Sudanese Nationality Act 1994 (S4)).

   (e)Furthermore, there is no evidence that the Applicant is a person who would be considered a South Sudanese National in accordance with the eligibility requirements at section 8 of the Nationality Act, 2011 of South Sudan (S5). Relevantly, there is no evidence that any of the parents, grandparents or great-grandparents of the Applicant were born in South Sudan, or that the Applicant belongs to 'one of the indigenous ethnic communities of South Sudan' (subsection 8(1)).

   (f)In the absence of evidence that the Applicant would be eligible for South Sudanese nationality, there is no reason to find that the Applicant would have lost his Sudanese nationality because of having acquired the nationality of South Sudan (see subsection 10(2) of the Sudanese Nationality Act 1994, as amended by the Sudanese Nationality Act (Amendment) 2011 (at S4)). Nor does the Applicant fall within those groups of people who face problems as a result of uncertainty regarding the application of the South Sudanese Nationality Act (see S3, pp. 72-74).

   (g)For these reasons, the Respondent contends that in assessing the Applicant's claims regarding what will happen to him when returned, it should do so on the basis that the country to which the Applicant will be returned is Sudan.

9. As noted above, the evidence before the Tribunal is that the Applicant is a member of the Moro Nuba, and was born near the regional centre of Kadugli, capital of South Kordofan state; and that his birthplace lies, according to the maps provided by the Respondent, in the territory of the present day Republic of Sudan, albeit in very close proximity (approximately 80 kilometres) to the border of South Sudan.

10. Evidence presented before the Tribunal supports the following conclusions:

    (a)The Applicant is a member of the Moro Nuba ethnic community, a non-Arabic group. The term Nuba is a collective term for the different tribal groups inhabiting the Nuba Mountains in South Kordofan.[25]

    (b)The Applicant’s birthplace near Kadugli in South Kordofan falls within the territory of the Republic of Sudan.

    (c)The Applicant is prima facie entitled to Sudanese citizenship by birth: Sudanese Nationality Act 1994, section 4(1). [26]

    (d)Sudanese citizens are liable to be deprived of citizenship if they are eligible, de facto or de jure, to the citizenship of South Sudan; Sudanese Nationality Act 1994, section 10(2), as amended in 2011; see also Sudanese Nationality Act (Amendment) 2018.

    (e)Persons belonging to the ‘indigenous ethnic communities of South Sudan’ are entitled to South Sudanese nationality.[27]

    (f)It is unclear whether members of the Moro Nuba ethnic community are regarded by South Sudanese or Sudanese authorities as belonging to ‘an indigenous community of South Sudan’.

    (g)There is insufficient evidence to determine whether, were he to be deprived of Sudanese nationality, he would be entitled to the citizenship of the state of South Sudan.

    [25] See Manby, op cit, “Prominent non-Arab groups include the Nubians, who live along the Nile River in northern Sudan, the Beja who reside in eastern Sudan, the Fellata located mainly in Gezira, the Nuba (a collective term for the different tribal groups inhabiting the Nuba Mountains) in South Kordofan and the Fur, Massalit and Zaghawa located in the Darfur region”; S8/160 [2.10].

    [26] English translation of the Sudan Nationality Act 1994 and the 2011 and 2018 amendments: S4/111-128.

    [27] South Sudan Nationality Act 2011, section 8(1)(b): S5/136.

11. It is simply not possible to find, on the balance of probabilities, on the basis of information presently available to the Tribunal, that the Applicant is entitled to Sudanese nationality; and not liable to be stripped of that status by virtue of his ethnic status, given the implications of the present state of Sudanese and South Sudanese nationality laws.

    EXERCISING THE DISCRETION IN SECTION 501CA(4)

12. The Minister may give written directions to a person or body having functions or powers under the Act if the directions are about exercising those functions or powers: section 499(1)(b).

13. The Minister has given a direction in the form of Direction No. 79 in respect of the revocation of mandatory cancellation of a visa pursuant to section 501CA(4) of the Act.

14. Section 499(2A) of the Act states that a person to whom a direction is given must comply with the direction.

15. The Tribunal must therefore exercise the discretionary power to revoke a mandatory cancellation decision within the framework of Direction No. 79.

    DIRECTION NO. 79

16. Direction No. 79, Part C, identifies the considerations relevant to determining whether to exercise the discretion in section 501CA(4)(b)(ii) to revoke the mandatory cancellation of a non-citizen’s visa.

17. Paragraph 13(2) refers to three primary considerations that the Tribunal must take into account and provides detailed guidance as to how they are to be assessed. The three primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct (PC1);

    (b)The best interests of minor children in Australia (PC2);

    (c)Expectations of the Australian community (PC3).

1. Paragraph 14 refers to five other considerations that must be taken into account where relevant. Paragraph 14 states that the list includes but is not limited to:

   (a)International non-refoulement obligations (OC1);

   (b)Strength, nature and duration of ties (OC2);

   (c)Impact on Australian business interests (OC3);

   (d)Impact on victims (OC4);

   (e)Extent of impediments if removed (OC5).

2. In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], Colvin J emphasised that the other considerations are not secondary or subordinate. His Honour stated:

   ...Direction 65 [now Direction No. 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply. [Emphasis added]

3. Paragraph 8 contains three important rules about weightings.

   (a)First, both primary and other considerations may weigh in favour of, or against, revocation: 8(3).

   (b)Secondly, primary considerations should generally be given greater weight than the other considerations: 8(4).

   (c)Thirdly, one or more primary considerations may outweigh other primary considerations: 8(5).

4. I turn to consider the primary and other considerations as required by Direction No. 79.

   PRIMARY CONSIDERATION 1 (PC1) – THE PROTECTION OF THE AUSTRALIAN COMMUNUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT: 13.3

5. The Applicant’s criminal record is to be judged by reference to the principles set down in Direction No. 79 for assessing the nature and seriousness of the Applicant’s criminal conduct to date. I am mindful of the principles contained in 13.1: especially, the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; and that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, or have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

6. Under 13.1(2) decision-makers must give consideration to:

   ·The nature and seriousness of the Applicant’s conduct to date;

   ·The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   Nature and seriousness of the Applicant’s conduct to date: 13.1.1(2)(a)

7. The nature of his offending has been described above. As a sexual offence, it falls into the category of offending regarded by the Australian government as very serious. The Applicant was grossly inebriated at the time of the offending, and there is no record of prior offending. Apart from the traffic offences committed in 2010, this offence stands alone in his criminal record.

8. It is apparent from the gross reduction of sentence affected by the District Court, which reduced the sentence from 18 months to 12 months and the non-parole period from 12 months to 3 months that the District Court judge did not regard this offence as at the higher end of the scale. The learned judge described his antecedents as follows:

   He has no criminal history other than a traffic matter.  A report was prepared by Community Corrections Office dated 20 April 2016.  He is a Sudanese national residing with his family and wife.  He migrated in 2005 and a refugee.  He lived in a rural village which was subjected to considerable danger as a result of the civil war in that Country. He relocated to a major city and then to Egypt from where he came to settle in Australia.  He has no primary or secondary education and was working as a labourer at the time to support his family.[28]

   [28] G5/36.

9. The learned judge referred to a pre-sentence report which identified the difficulties the Applicant had with alcohol. He was assessed as being moderate to low risk in relation to offenders committing sexually oriented offences, according to the Static-99 R Assessment Actuarial Tool. The judge expressed some doubt about the value of the tool, but noted that it is regularly used to assess risk.

10. The Applicant was represented by a solicitor in the District Court proceedings who informed the judge that he was embarrassed by his behaviour and could not believe that he had done it. The judge accepted that despite making the advances described towards the woman he did not follow it up, that he was under the influence of alcohol and that a degree of disinhibition may have caused him to act in the way that he did.[29] 

    [29] G5/37.

11. In varying the sentence from 18 to 12 months the learned judge noted that while there is a need to protect the community by general deterrence, there is also a need to consider rehabilitation. He recommended release on parole and recommended that while on parole the Applicant receives assistance in relation to alcohol abuse and any underlying mental health issues.

12. In terms of the victim, the judge noted that the Applicant ‘failed to proffer any insight regarding the victim but acknowledged that she was likely to have been intimidated by his actions’.[30] He also noted that the victim was vulnerable and ‘it must have been a terrifying experience for her. Luckily, she was in a train where she could seek out other persons and not in some isolated location’.[31]

    [30] G5/37.

    [31] G5/37.

13. Taking into account the judge’s sentencing remarks, it is clear that his Honour did not see this as a case demanding severe punishment; that while there was a need for general deterrence in sentencing, there was also a need to emphasise rehabilitation.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

14. In assessing the risk of further offending, I note that the risk was assessed in the sentencing process as low to moderate, and the Respondent did not contend otherwise.

15. The Respondent asked the Tribunal to reflect on the profound psychological as well as physical harm often associated with sexual offending.  Within that context, the Australian community should not bear the risk of even a low to moderate risk of further acts of offending.  He argued that in light of the connection with alcohol abuse, and the absence of any evidence to suggest that this weakness had been addressed, the Tribunal should not be sanguine about the issue of recidivism. He also noted that the remarks had been attributed to the Applicant in the pre-sentence report that the offending arose because of trouble in his marriage, and there was no evidence as to whether such problems might be ongoing.

16. The principles contained within Clause 6 of the Direction No. 79 are relevant here:

    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia;

    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. ...;

17. The judge’s sentencing comments suggest that the Applicant’s sexual offending is far from the most serious form of such offending, whether in relation to the limited category of indecency, or the whole class of sexual offences. Furthermore, the likelihood of further misconduct was assessed as being in the low to moderate range.

18. Clause 6(3) mandates that a non-citizen convicted of a sexual offence should ‘generally’ expect to forfeit the privilege of staying in Australia.  However, in my view, it would not be appropriate to regard the offending in this instance as so serious as to prevail over all other considerations.

    Conclusion with regard to PC1

19. My conclusion in respect of PC1 is that it weighs against the Applicant, but the weight is commensurate with the assessed likelihood of recidivism – that is, low to moderate. PC1 does not weigh heavily against the Applicant.

    PRIMARY CONSIDERATION 2 (PC2) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

20. The Applicant’s family situation has been described above.  Two of his children and two of his grandchildren are under 18. Direction No. 79 mandates that each of the minor children must be considered separately, to the extent that their interests differ: clause 13(3).  In the present case, the grandchildren are the children of Child 1.  They are still young and were under three when the Applicant went into detention. The relevance of this Primary Consideration therefore rests upon his two minor children, Child 4, aged 17, and Child 5, aged 11.

21. In assessing the best interest of minor children in Australia affected by the decision, the Tribunal is required to act with a degree of unavoidable paternalism. One is required to assess the best interests of such children objectively. The best interests of a child who longs for a parent will not be served if the parent is abusive, or if the parents are at war with each other, creating a toxic environment.[32]

    [32] See Long and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2313, [109].

22. The Tribunal is required to consider a number of factors, where relevant, as identified in Direction No. 79, clause 13.2(4). 

    (a) The nature and duration of the relationship between the child and the non-citizen

23. The evidence before the Tribunal is that the Applicant came to Australia in 2005 with his family and Child 5 was born in Australia.  There is no evidence of any separation until his imprisonment in 2016 and subsequent transfer to immigration detention.

    (b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time before the child turns 18

24. The Respondent stressed that there are only a few months left before Child 4 turns 18. 

    (c) The impact of prior conduct, and future conduct

25. Regarding prior conduct, there is no evidence of any negative impact of the Applicant’s behaviour upon his minor children. There is no evidence that any such behaviour has been, or would be, directed towards his minor children. It is however an objective observation that any past or future conduct of a similar kind would be very damaging towards his children, whether directed specifically towards them or not.

    (d) The likely effect of separation

26. The evidence that Child 4 has expressed suggests that ongoing separation will be very damaging. I am especially concerned about Child 5, who has been separated from his father from the age of 7 and is now 11. Ongoing separation will cause further significant disruption to the parental bond.

    (e) Whether there are other persons who already fulfil a parental role in relation to the child

27. The evidence is that all but the oldest daughter, Child 1, is still at home and the minor children are looked after by their mother.[33]

    [33] Transcript, 29 July 2020, at p 21.

    (f) Any known views of the child

28. Child 4 is 17 years old. She has provided a letter of support for her father. She acknowledges her father and she says that she deeply misses him. She writes:

    My father before being detained was kind, generous and wise – my siblings and I truly cannot and when it happened could not fathom losing one of our parents.  As we await his arrival we are ready to welcome him with open arms.

    (g) Evidence of abuse or neglect by the non-citizen

29. There is no evidence of abuse of neglect by the Applicant towards his minor children, or indeed any of his children. 

    (h) Evidence that the child has experienced any physical or emotional trauma arising from the non-citizen’s conduct

30. There is no direct evidence of any such trauma arising directly from the Applicant’s offending. But as noted above, the nature of sexual offending is that the ripple effects flow widely and can be very damaging.

    Conclusion with regard to PC2

31. My conclusion with regard to PC2 is that it weighs heavily in favour of the Applicant.

    PRIMARY CONSIDERATION 3 (PC3) – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY: 13.3

32. Clause 13.3 provides:

    The Australian community expects non-citizens to obey Australian law while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where then non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate because the nature of the character concerns are such that the Australian community would expect that the person should not hold a visa,  Decision-makers should have due regard to the Government’s views in this respect.

33. Given the context for the operation of clause 13.3, namely, the commission of an offence by the Applicant punishable by imprisonment for 12 months or more, or serious misconduct, it is hard to imagine a case where PC3 must not weigh, at least to some degree, in favour of cancellation.

34. In  FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court examined this clause. The case may be cited for the following propositions:

    (a)PC3 weighs against the Applicant in every case, but the degree to which it does so is a matter of judgment for the Tribunal, taking into account the facts of the case and the principles identified in clause 6 of Direction No. 79.

    (b)It is for the Tribunal to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of cancellation. In general, the more serious the breach, the more it weighs in favour of cancellation, and it may even be decisive.

35. I note the Government’s view that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the Applicant should not hold a visa.

36. In the present case, the criminal record contains records in 2010 and 2016. There is the 2010 traffic offence and the failure to submit to a breath test, for which the Applicant was fined a total of $700; and the 2016 act of indecency with a girl over 16, for which he was sentenced to 12 months imprisonment and a non-parole period of three months.

    Conclusion with regard to PC3

37. My overall conclusion is that PC3 does not weigh decisively in favour of non-revocation of the mandatory cancellation.  It is at most of slight weight against the Applicant.

    OTHER CONSIDERATION 1 (OC1) – INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

38. In his Personal Statement, the Applicant states:

    I submit that I face harm and death, if I were to be returned to the War torn country of South Sudan. [34]

    [34] Submission to NCCC seeking revocation of Mandatory Visa Cancellation: G28/121.

39. The Applicant claims that in considering OC1 the Tribunal should consider Australia’s international non-refoulement obligations.[35] Some relevant parts of the Act appear at the Appendix to this decision.

    [35] Applicant’s submissions filed 17 June 2020 [29].

40. Clause 14.1 of Direction No. 79 provides that:

    (1) A non-refoulement obligation is an obligation not to forcibly return, deport of expel a person where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT) and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    (2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

    (3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled). [emphasis added]

    (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations  are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked. [emphasis added]

    (5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

    (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

41. The Respondent’s solicitor submitted that on present authorities, the Tribunal was required to assess the Applicant’s non-refoulement claim despite the explicit statement in Direction No. 79 that it was unnecessary to do so under circumstances where the Applicant can make a claim for another visa. He argued, in effect, that it was necessary in the present proceedings to determine the non-refoulement claim.

42. A decision-maker, exercising the discretionary revocation power under s 501CA(4) of the Act, is required to carry out the statutory task according to law, which requires consideration of whether there is “another reason” to revoke the visa cancellation. Where, as here, the Applicant raises “another reason” under s 501CA(4)(b)(ii), it is incumbent on the Tribunal to consider the reason raised: see BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16), per Bromberg and Mortimer JJ, at para [63] which is also extracted below.

1. In BCR16, Bromberg and Mortimer JJ, from [59]-[73] analysed the position as follows:

   Jurisdictional error identified

   59.      Before turning to the authorities, we should identify the passage in the Assistant Minister’s reasons where the jurisdictional error is revealed. It is in [19] itself.

   60 By the appellant’s representations, which we have set out at [6] to [10] above, a “reason” has been put to the Assistant Minister for the purposes of the exercise of her revocation power under s 501CA(4). The Assistant Minister states it is “unnecessary to determine” whether non-refoulement obligations are owed, because the appellant can make a protection visa application. It is the Assistant Minister’s linkage between her refusal to consider the “reason” put to her by the appellant, and the way the Act will operate if a protection visa application is made, which reveals the error. The Assistant Minister’s expression of her understanding about the operation of the Migration Act and the consideration of risks of harm to the appellant during consideration of a protection visa application is incorrect, or at least incomplete. Further, the Assistant Minister’s characterisation of the “reason” as “international non-refoulement obligations” is also incorrect, and an incomplete and inaccurate description of what the appellant was putting forward as a “reason” for the purposes of the exercise of the power in s 501CA(4).

   61       Although reasonable minds may differ on appropriate characterisations of jurisdictional error in many circumstances, in our opinion the appellant is correct to submit in this case the argument is not about mandatory relevant considerations. That is, it is not to contend that the scope, subject-matter and purpose of the revocation power in s 501CA(4) requires that Australia’s non-refoulement obligations be taken into account (see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 39-40 (per Mason J)). This is a distinct point from the one made by the Full Court in NBMZ.

   62       Rather, the error can be characterised as either a denial of procedural fairness or as a failure to carry out the task required under s 501CA(4). In relation to denial of procedural fairness, see Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42], although in that case the procedural fairness challenge failed for reasons summarised by Tracey J at [44]-[47]. In our opinion, that characterisation would not be appropriate in the present case, because this was not a situation where, in her decision, the Assistant Minister took into account material from another source which was critical and relevant to the appellant personally, but did not disclose it. Rather, the Assistant Minister formed a view she did not have to address, or turn her mind to, the risk of serious or significant harm that might be faced by the appellant on return to Lebanon because that could be dealt with through another process, if the appellant chose to apply for a protection visa. This was the Assistant Minister’s reasoning – no more than that, and as the authorities establish, she generally is not obliged to disclose her reasoning process ahead of making a decision or to provide a “running commentary”: see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152at [48]; Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [9] (French CJ and Kiefel J); Durani v Minister for Immigration and Border Protection [2014] FCAFC 79; 314 ALR 130; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [92]- [93].

   63       The error could also be characterised as a failure to carry out the task required under s 501CA(4) which requires consideration of whether there is “another reason” to revoke the visa cancellation. The appellant submitted that where a person raises “another reason” under s 501CA(4)(b)(ii), part of the discharge of the Assistant Minister’s task is to consider the reason raised, on a correct understanding of the law. He relied on Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54], per Robertson J.

   64       Goundar was a case with some basic similarities on the facts to this case, although Robertson J’s reasoning hinged on a distinction between consideration of a risk of harm that engaged Australia’s protection obligations and a risk of harm which did not: see [47] of his Honour’s reasons. At [53], Robertson J identified the jurisdictional error as one relating to a misunderstanding of “the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the Applicant’s representations referred”.

   65       This led Robertson J to conclude at [54]:

   The harm claimed by the Applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. The Minister proceeded on the basis that he did not need to consider the representation of risk of harm because of the line of authority summarised in Le at [41]-[65]. That error had a material effect on the Minister’s decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the Applicant’s safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law: see Wei at [33] and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ. That is an implied condition of the valid exercise of that power. Here there was an incorrect understanding of the law. The case is one of jurisdictional error.

   (Emphasis added.)

   66       The appellant in this appeal relied on the part of the passage we have emphasised in the extract above. He submitted in the appellant’s case, the Assistant Minister had misunderstood the course of any consideration of a protection visa application made by the appellant, and that issues concerning risk of harm might never be reached. In his written submissions, putting to one side the argument about s 197C which we do not propose to determine, the appellant identified two misunderstandings of the law. The first was that the “Minister considered that non-refoulement obligations would ‘necessarily’ be considered in the event that the appellant was to make an application for a protection visa”, when this was not the case. The second was that “the Minister considered that the subject of the appellant’s representation could, in their entirety, be met by the availability to the appellant, on application, of a protection visa”, when this was not the case.

   67 The first misunderstanding – identified as a misunderstanding of the likely course of decision-making under the Migration Act – is one that we accept is made out, for the reasons we have expressed at [42] to [52] above, together with what we set out below.

   68       The language at [58] of the briefing note to the Assistant Minister (which we have set out at [14] above) is materially identical to the passage at [19] in the Assistant Minister’s reasons, which we have extracted at [16] above. Therefore, even on the assumption that the Assistant Minister read and agreed with the statements in the briefing note, her reasoning relevantly goes no further than what is at [19] of her reasons. There is no evidence of consideration of the course of decision-making on a protection visa application made by a person in the appellant’s position: that is, a person whose visa had been cancelled under the mandatory terms of s 501(3A), and a person whom the Assistant Minister had personally decided should not be subject to a favourable revocation decision under s 501CA, because of the risk of harm he posed to the Australian community. The Assistant Minister’s reasons do not advert to the character criteria for a grant of a protection visa. Her reasons disclose no consciousness that the appellant’s protection visa application may be required to be refused because of non-satisfaction of character criteria, so that considerations of risk of harm might never be reached.

   69       A person in the appellant’s position would be applying for a protection visa in a very particular set of circumstances. The scheme of the Act intends that a person in his position be subject to automatic cancellation of his current visa on character grounds, and that he be compelled to seek a favourable exercise of discretion to have it reinstated. A person in his position has failed to persuade the Assistant Minister such a course should be taken because the Assistant Minister has given primary weight to character concerns and the risk posed by the appellant, in the Assistant Minister’s opinion, to the Australian community. In order for the scheme of the Act to retain any integrity and consistency, those particular considerations would inevitably intrude on any decision-making process in relation to an application for a protection visa. The Assistant Minister’s reasons disclose no awareness of this.

   70       If contrary to the opinion we have expressed above, there was no misunderstanding by the Assistant Minister of the course any application for a protection visa by the appellant could be likely to take, we would in any event accept the appellant’s alternative submission that an error of the kind identified by Robertson J in Goundar is present in the Assistant Minister’s reasoning process.

   71       Both the briefing note, and the Assistant Minister’s reasons, move immediately to describing the relevant issue as “whether non-refoulement obligations are owed to [the appellant]”. We respectfully agree with Robertson J in Goundar that the harm comprehended by such obligations, whether under the Refugees Convention or under CAT and the ICCPR, does not describe the universe of harm which could be suffered by a person on return to her or his country of nationality. Rather, those international instruments are directed at state parties’ obligations to avoid particular kinds of harm befalling a person who may be returned to her or his country of nationality (and in the case of the Refugees Convention, for particular reasons).

   72       Here, as we have noted several times in these reasons, the appellant did not describe the harm he feared by reference to “non-refoulement”. It may well be the case that the harm he identified was not viewed as having a sufficient likelihood to bring him within either kind of international protection obligations. Or, it may be the nature of the harm he feared was necessarily outside either kind of international protection obligations. The Assistant Minister’s reasons disclose no understanding of those possibilities. Rather, her reasons betray two misunderstandings: first that the appellant was identifying non-refoulement obligations as a concept when he had not; and second that the harm he feared was necessarily within that protected by Australia’s international non-refoulement obligations. Whether or not the harm the appellant feared had a “private quality” as the harm identified in Goundar, there were other reasons it might be harm outside the kind covered by Australia’s international non-refoulement obligations. Nevertheless, the harm as the appellant expressed it was put forward by him as a “reason” the Assistant Minister should revoke the cancellation. She did not consider it. Her failure to do so flowed from the misunderstandings we have identified and is properly characterised as an error of a jurisdictional kind because it went to the lawful discharge of her task. [emphasis added]

   73       We reject the Minister’s submission that it is enough to avoid error on the part of the Assistant Minister that there was a “real possibility” the risk of serious or significant harm to the appellant might be addressed during consideration of any protection visa application he made. There are several reasons for this. First, as we have noted above, the kind of harm identified by the appellant was not restricted to harm as that concept is understood in either set of domestic protection obligations, or in either kind of international non-refoulement obligations. Second, as we have noted above, the role of the consideration of whether serious or significant harm might befall the appellant in Lebanon (for Convention or non-Convention related reasons) has a quite different place in a discretionary decision about revocation, to the place it may have, if reached, in a protection visa assessment. In the former, it need not have any particular quality to affect the exercise of discretion – the weight of the prospect of harm is a matter for the Assistant Minister rather than part of any fixed visa criterion. That is in stark contrast to the role these matters play under s 65 of the Act.

2. Clause 14(1)(4) implies that if the non-citizen ‘would be able to make a valid application for another visa if the mandatory cancellation is not revoked’, then ‘it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked’, even if the Applicant has made claims that give rise to international non-refoulement obligations. This cannot stand with the findings in BCR16.[36]

   [36] See BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; Minister for Immigration and Border Protection and BCR16 [2017] HCA Trans 240; XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385.

3. The Minister’s response to BCR16 was to give a direction under s 499 of the Act (Direction No. 75) requiring that decision-makers considering an application for a Protection visa must first assess whether the refugee and complementary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under s 501.

4. In Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 (Omar), the Full Court was invited to consider the effect of Direction No. 75 in relation to BCR16, but found it unnecessary to do so. In Omar, the Full Court stated at [67]:

   [Section] 501CA imposes an obligation to invite representations and then form a view as to whether the Minister is satisfied as to whether there is ‘another reason’ to revoke the cancellation of a visa. So, if representations are made, there is a statutory obligation upon the Minister to consider whether to exercise the power conferred by s 501CA(4). In order to properly discharge that obligation, the Minister must not overlook the representations. A state of satisfaction that is formed without considering the representations is not a state of satisfaction of a kind that the Migration Act requires.

5. The Applicant was examined by the Respondent’s solicitor.

   MR SHARPE:  Mr Toto, can you just tell me, what country ‑ between Sudan and South Sudan ‑ which country would you regard as being your home country now?

   INTERPRETER:  The place I was born I believe is ‑ is belong to ‑ is part of the south…

   MR SHARPE: Mr Toto, if you were now to go back to Africa, where do you believe that you should go to?  Either Sudan or South Sudan?

   INTERPRETER:  Despite that I have nothing in South Sudan, I belong to South Sudan.  But if they decided that they don’t want me, I would prefer to go to South Sudan.  If they decided that they don’t want me here…

   MR SHARPE:  Senior Member, just noting the statement in the submission provided by the Applicant at paragraph 29 of that submission.  So just at page ‑ it’s at page 123 of the G documents.  So just noting paragraph 29, which is at the bottom of page 123.

   SENIOR MEMBER:  Yes, got it.

   MR SHARPE:  This is where the Applicant said:

   I submit that I face harm and death if I were to be returned to the war torn country of South Sudan.

   I think I just need to ask the Applicant to clarify that statement in light of the answer he’s just given to ‑ ‑ ‑

   SENIOR MEMBER:  Yes, sure.  Sure.

   MR SHARPE:  Mr Toto, in a document that you gave to the Tribunal, you say that you would face harm and death if you were to be returned to the country of South Sudan.  Mr Interpreter, if you could just put that to the Applicant to start with, please?

   INTERPRETER:  Yes, I will.

   I have no idea who put that statement.  When was that written?  The statement?

   SENIOR MEMBER:  Mr Interpreter, if you can tell the Applicant that that is in a statement that he put to the Tribunal in June of this year.

   INTERPRETER:  I have never mentioned.  Maybe in Khartoum there’s something like that may happen, but not there.

   No?---I have never written something like that. 

   SENIOR MEMBER: Mr Interpreter, could you ask please:  Mr Toto, do you think that South Sudan is a safe place for you to be returned?

   INTERPRETER:  He just came back to give me the answer even though I explained clearly the question but he still say I have nothing there.  I have nothing in South (indistinct) the answer he get (indistinct)…

   MR SHARPE:  Thank you, Senior Member.  Mr Interpreter, I just want to go back to what I read out from the statement or submissions that the Applicant had made to the tribunal where he says that he would face harm and death if he were to be returned to South Sudan.  I want - sorry, I would like you to ask him, whether he still wishes for that to be put to the tribunal?---(Through interpreter) Yes, obviously because South Sudan is now, there’s a lot of issues, there are problems there. 

   Thank you very much. 

   SENIOR MEMBER:  I take that to be a positive response to the question, do you wish the issues in South Sudan to be taken into account in assessing your claim.  I take him to have said, ‘yes’ to that.

   MR SHARPE:  Sorry, is that a question for me?

   SENIOR MEMBER:  Is that your understanding, Mr Sharpe?

   MR SHARPE:   Yes, it is.  Yes, it is, Senior Member.  Mr Interpreter, could you ask now the Applicant which group of people or possibly what tribe he considers himself to be associated with in Sudan or South Sudan?---Yes, I’m from Nuba Moro…

   MR SHARPE:  Thank you, Senior Member.  Mr Interpreter, could you ask the Applicant whether or not he associates himself with any religious grouping?

   
   

   ---I am a Christian. [37]

   [37] Transcript, 21 July 2020, pp 123-129.

6. His evidence may be summarised by saying that the Applicant considered that he was aware of the creation of the state of South Sudan; that he believed his birthplace was in the south; that he would prefer to go to South Sudan if he had to choose; that he did not think (contrary to his written claim) that he would “face harm and death” if returned to South Sudan; that he did not know who wrote that in his document; but that he did not think South Sudan was a safe place to be returned because he had nothing there; and because there “are lots of issues” there.

7. The Applicant’s answers do not in my view absolve the Tribunal from considering the issue of non-refoulement in relation to South Sudan, or for the matter, Sudan, for this issue may arise from specific claims made by the Applicant, or can be clear from the facts of the case.[38] Does the Applicant have a well-founded fear of persecution in the relevant sense? The fact that the Applicant does not identify a claim as a non-refoulement claim does not absolve the Tribunal from considering whether the representations made constitute another reason under s 501CA(4)(b)(ii) for revoking the mandatory cancellation. An assessment of the risk of harm requires identification of the harm, together with some assessment of the risk that the Applicant may come to harm. In a case where it is not clear which of two countries he may be sent to, it is necessary to consider the risk of harm if returned to either country.

   [38] Direction No. 79, cl 14.1(3).

8. The assessment of non-refoulement claims by the Tribunal in proceedings under s 501CA(4) to revoke a mandatory cancellation are not without practical difficulties, as outlined by Deputy President Dr Christopher Kendall (as he then was) in XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2385.

   [92] In assessing any non-refoulement obligations, however, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):

   An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.

   [93] Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the Applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time (here, less than four days from final oral submissions), the Tribunal does not have the benefit of an ITOA or the full (and much needed) body of evidence one would expect (and which an Applicant deserves) in a protection visa hearing.

1. The most recent Department of Foreign Affairs and Trade (DFAT) material provided to the Tribunal is contained within the DFAT Country Information Reports dated 27 April 2016 relating to Sudan (the Sudan Report),[39] and 5 October 2016 relating to South Sudan (the South Sudan Report).[40]

   [39] DFAT Country Information: Sudan: 27 April 2016; S8/155–182.

   [40] DFAT Country Information: South Sudan: 5 October 2016; S9/183–208.

2. The Sudan Report paints a grim picture of the treatment of the Nuba in some parts of Sudan. DFAT assess those non-Arab ethnic groups such as the Nuba from South Kordofan face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity, as detailed below.[41]

   Nuba

   3.10 Nuba is a term used to describe over 50 ethnic groups that inhabit the Nuba Mountains in South Kordofan and Blue Nile and number an estimated 3.7 million people. The Nuba have traditionally clashed with the pastoralist Arab ethnic group, the Baggara. In the mid-1980s, clashes intensified and became increasingly political with the Government supporting the Baggara-linked militia, the Murahaliin. In the early 1990s, the Government intensified its efforts to limit the authority of the Nuba, including through forcibly converting some of the Christian population to Islam. The prominence of Christianity in the Nuba Mountains has added another layer of complexity given the religious divide between the mainly Islamic Sudan and mainly Christian South Sudan. Despite commitments in the CPA, the Nuba population has not been provided with an opportunity to decide whether they identify as being from Sudan or South Sudan and conflict between the Government and SPLM-North has continued to intensify.

   3.11 DFAT assesses that the conflict in South Kordofan and Blue Nile has political, ethnic and religious motivations. In the absence of a negotiated ceasefire with the SPLM-N, the Government has continued to intensify ground and aerial bombardments on rebel-held areas of South Kordofan and Blue Nile which has led to significant harm to the Nuba population. The US Department of State’s 2015 Human Rights Report states that between April and May 2015, Government-linked forces burned at least three villages displacing as many as 50,000 people. Those fleeing also reported numerous unverified civilian executions. In addition, DFAT understands that the Government has prevented Nuba from fleeing to safety.

   3.12 Overall, DFAT assesses that Nuba currently face a high risk of discrimination and violence. Given the actual or perceived association of Nuba with the armed opposition, Nuba are likely to face a high risk of discrimination and violence outside of the Nuba Mountains, including in Khartoum. [emphasis added]

   [41] DFAT Country Information: Sudan: 27 April 2016: [3.10]; S8/166.

3. The DFAT Report pains a grim picture of the South Kordofan region.[42] 

   ‘Two Areas’ – South Kordofan and Blue Nile

   2.37. The CPA included vague references to holding consultations on both South Kordofan and Blue Nile which never eventuated. As the secession of South Sudan approached and the Government pressured the SPLM-North to either disarm or join the SPLM in South Sudan, tensions between the Government and the SPLM-North increased, particularly in South Kordofan. After the SPLM-North rejected the election of an NCP Governor in South Kordofan, conflict erupted between the Government and the SPLM-North and quickly spread to Blue Nile. Despite ten rounds of negotiations between the Government and SPLM-North, negotiations have largely stalled. Fresh talks on a cessation of hostilities are ongoing.

   2.38  The current conflict in the ‘Two Areas’ (South Kordofan and Blue Nile) has been described as being of the intensity of the conflict in Darfur in the mid-2000s, and has led to the displacement of an estimated 538,000 people. Between January and October 2015 alone, an estimated 36,000 people have been displaced in South Kordofan and a further 56,000 people in Blue Nile.

   2.39 In South Kordofan and Blue Nile the Government and SPLM-North have been accused of using excessive force and targeting civilians. The Government’s artillery and aerial bombing campaigns have resulted in significant damage to infrastructure as well as civilian casualties. The situation is considered most severe in South Kordofan, particularly in the Nuba Mountains, where the SPLM-North has a strong presence.

   2.40  The humanitarian situation in both Blue Nile and South Kordofan is acute, with the Government preventing humanitarian organisations from accessing and providing support to civilians in controlled by the SPLM-North. [emphasis added]

   [42] DFAT Country Information: Sudan: 27 April 2016: [2.37]-[2.40]; S8/163.

4. With regard to Sudan, the DFAT assertion that non-Arab ethnic groups such as the Nuba from South Kordofan face “the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity”,[43] suggests that there is a real chance that, if returned to Sudan, the Applicant as a member of the Moro Nuba, may be persecuted by reason of his ethnicity.

   [43] DFAT Country Information: Sudan: 27 April 2016: [3.4]; S8/165.

5. There is however no evidence before the Tribunal as to whether discrimination against Nuba is confined to South Kordofan, or extends to other areas of Sudan, including Khartoum. To pick up on the point made by Deputy President (now Justice) Dr Kendall, the Tribunal does not have the benefit in these proceedings of a comprehensive body of evidence that one might expect in processing a protection visa claim.

6. Nevertheless, the 2016 Sudan Report suggests that a person of the Nuba tribe (the Applicant is Moro Nuba, a sub-tribe) may experience persecution by reason of their race or Christian religion. The time available to the Tribunal to process this claim is frankly, inadequate to the task, but the evidence suggests that by returning the Applicant to Sudan, the Government may breach Australia’s international non-refoulement obligations.

7. With regard to South Sudan, the Applicant appears not to have feared persecution by reason of his ethnicity, although he considered that there were “issues there”. By this I took him to refer to the very difficult circumstances facing returnees and other internally displaced persons and the breakdown of law and order in that country. Of itself, that is not sufficient to form a non-refoulement claim, although it is undoubtedly relevant to OC5 dealing with the extent of impediments that he may face if returned to his home country.

8. Solicitor for the Respondent submits that I should find that the country to which the Applicant should be returned is Sudan rather than South Sudan. The Sudan Report suggests that members of the Nuba may experience persecution on Convention grounds.[44] It cannot be said that this consideration is merely neutral, although it is, on the information presently before the tribunal, exceedingly difficult to quantify the risk that the Applicant may face if returned to Sudan.

   [44] DFAT Country Information: Sudan: 27 April 2016: ch 3; S8/165-173.

   Conclusion with regard to OC1

9. I find that this consideration weighs slightly in favour of revocation.

   OTHER CONSIDERATION 2 (OC2) – STRENGTH, NATURE AND DURATION OF TIES

10. As noted at the outset, the Applicant has lived in Australia from the age of 32 to his present age of 47. He has five children in Australia and a wife. His wife and children are all Australian citizens.[45]

    [45] G2/21 [67]; G2/24 [94].

11. Two of his children are below the age of 18, and they have been considered above at [76] – [87]. He has three children in their early to mid-twenties. Child 1 is 26 and has two children, both under seven; Child 2 is 24; and Child 3 is 20.

12. Apart from Child 1, the children live at home with their mother.[46]

    [46] Transcript, 20 July 2020, p 21.

13. The Applicant’s two youngest children Child 4 and Child 5 are still at school.

14. Child 2 is working.  He provided a letter dated 17 May 2020 in support of his father.[47] He said:

    [The Applicant] has always been a great person and a loving father.  It has been such a long and confusing period of time as to what had happened that led to him being detained. We all miss him very much and cannot wait to welcome him home again.

    [47] Applicant’s materials, undated support letter of Child 2.

15. Child 3 was attending university but has suspended her studies to assist her mother.[48]  She writes:

    These past four years of my life has been a struggle due to my dad not being around. As days go by, I can’t seem to get past the fact that, all the important life events my dad wasn’t there to witness. Therefore, there are moments in which you cannot relive or feel and unfortunately my dad will not understand the feeling of being a proud father.

    Although my father has missed my graduations, birthdays, father’s day and the first time I’ve learnt to drive a car, my little brother [Child 5] may still have the chance to experience life with my father.

    [48] Transcript, 20 July 2020, p 21.

16. The Applicant gave evidence that he is in regular contact with his children by mobile telephone and that he last spoke to them about three weeks before the hearing. [49]

    [49] Transcript, 20 July 2020, p 21.

17. When asked how frequently he spoke to his children he grew somewhat defensive and responded as follows:

    MR SHARPE: … Mr Interpreter, could you ask him how regularly he speaks to his children?

    INTERPRETER:  He said he speaks to them a week or two weeks or talk to their mother.  Why is this person asking all these questions?  These are my children.  Why am I being asked this question?  I’m so tired.

    WITNESS:  Yes, I talk with them.  If I talk all the time, it makes me sick.  They make me sick.  Trust me, it give me (indistinct).  It’s my case.

    INTERPRETER:  I talk to them, I call them.  If I can’t talk to them, it makes me sick.

    SENIOR MEMBER:  Sorry, when you say it makes you sick if you talk to them, what do you mean?  It makes you sad or sick?

    INTERPRETER:  If I don’t talk to them, it makes me sick.  Because I have now, it’s a very long time since I’ve seen them.  It makes me tired.  I miss them.  I miss a lot.

18. I note that the Applicant has asserted that he has been in regular employment as a labourer although the Tribunal does not have details of the Applicant’s employment record.

19. There is some evidence of community engagement.  The Applicant tendered letters of support from various members of the community including a reference from Mr Temas Ibrahim Almani, secretary of the Omarung Nuba Moro Community, dated 17 May 2020 confirming that the Applicant is ethnically a member of the community and is married and has five children.[50]

    [50] Applicant’s materials, support letter of Temas Ibrakim Almani, secretary of the Omarun Nuba Moro Community.

20. The Respondent’s solicitor argued that the various letters of support do not provide any basis for drawing any conclusions about the strength, nature and duration of ties when referring to the Applicant’s children.

21. I cannot agree with the Respondent’s submission that the ties that bind the Applicant to Australia by virtue of membership of this family are lacking in significant weight.

    Conclusion with regard to OC2

22. The Applicant’s ties to Australia are substantial. This weighs heavily in favour of the Applicant.

    OTHER CONSIDERATION 3 (OC3) – IMPACT ON AUSTRALIAN BUSINESS INTERESTS

23. The Applicant does not have any relevant employment record and no weight is to be accorded this consideration.

    OTHER CONSIDERATION 4 (OC4) – IMPACT ON VICTIMS

24. The Respondent’s Statement of Facts, Issues and Contentions contained no submission with regard to this consideration. 

25. There is no evidence before the Tribunal of any impact on victims, apart from the comment made by the sentencing judge that, in relation to the particular victim of the offence for which the Applicant was convicted, ‘it must have been a terrifying experience for her. Luckily, she was in a train where she could seek out other persons and not in some isolated location’.[51] 

    [51] G5/37.

26. There is no evidence before the Tribunal of any long lasting damage to the victim as a result of his offending.

27. The Respondent’s solicitor submitted that as part of the general assessment of the nature of the offending I should take into account modern insights as to the profound psychological consequences of sexual abuse in all its many forms. 

28. I also note that Direction No. 79 at clause 6.3(3) declares that a non-citizen who has committed a serious crime, including of a sexual nature, and particularly against women or children, should generally expect to forfeit the privilege of staying in Australia. However, I do not think that Clause 6.3(3) governs this particular case.

29. This consideration is neutral.

    OTHER CONSIDERATION 5 (OC5) – EXTENT OF IMPEDIMENTS IF REMOVED

30. The Tribunal is required to consider under Direction No. 79 ‘the extent of impediments that the Applicant may face if removed from Australia to his home country’.

31. As noted above, the break-up of Sudan into two separate countries in 2011 necessitates the need to identify the country by reference to which the impediments he may face must be assessed. If the Tribunal is unable to identify either Sudan or South Sudan as his home country, then logically it is necessary to at least consider the position confronting the Applicant if returned to either.

32. The previous finding that the Applicant is prima facie entitled to Sudanese citizenship does not settle this issue given the real and not remote chance that if he is removed to Sudan he may subsequently be deprived of his Sudanese nationality by virtue of the provisions discussed earlier in these reasons.

33. It may well be that the difficulties confronting the Applicant in Sudan will be less than those confronting him were he to be returned to South Sudan. He has some family living close to Khartoum which is a large city that may provide opportunities for employment.

34. I propose to consider each of these possibilities.

    Sudan

35. I note that the Applicant has two sisters and a brother who live close to Khartoum, the capital of Sudan, and that he last spoke to them around 2015.[52]  He relies on his wife to keep in contact since being in prison and immigration detention.

    [52] Oral evidence, see transcript, 20 July 2020, at p 69.

36. I have previously found that as a member of the Moro Nuba, the Applicant may experience some persecution on Convention grounds if returned to Sudan. In terms of prospects of employment, I note that he will return as a deportee with a history including conviction for a sexual crime. Regardless of any potential discrimination against a Christian African man in the Islamic Arabic North, his antecedents are likely to make it more difficult to gain employment in the future.

37. South Kordofan has been identified by the Tribunal as the area where the Applicant was born. Country Information prepared by both the 2016 DFAT reports and the 2019 US State Department paint a grim picture of the security situation in the provinces of Blue Nile and South Kordofan states (the “Two Areas”).[53] The US State Department Report states:

    [53] 2019 Country Reports on Human Rights Practices: Sudan <Accessed 9 August 2020>.

    E. INTERNALLY DISPLACED PERSONS

    Large-scale displacement continued to be a severe problem in Darfur and the Two Areas.

    According to the United Nations and partners, during the year an estimated 27,000 persons were newly displaced in Jebel Marra, Blue Nile, and South Kordofan. Of those, approximately 19,000 were mostly displaced in Jebel Marra alone. The UN Office for the Coordination of Humanitarian Affairs reported the vast majority of the displacement during the year was triggered by intercommunal and other armed conflict. There was an increase in reports of IDPs attempting to return to or access their farmlands in Darfur. Many IDPs faced chronic food shortages and inadequate medical care. Significant numbers of farmers were prevented from planting their fields due to insecurity, leading to near-famine conditions in parts of South Kordofan. The Bashir government and the SPLM-N continued to deny access to humanitarian actors and UN agencies in areas controlled by the SPLM-N. Information about the number of IDPs in these areas was difficult to verify. Armed groups estimated the areas contained 545,000 IDPs and severely affected persons during the year, while the government estimated the number as closer to 200,000. UN agencies could not provide estimates, citing lack of access. Children accounted for approximately 60 percent of persons displaced in camps.

    Bashir government restrictions, harassment, and the threat of expulsion resulted in continued interruption of gender-based violence programming. Reporting and outreach were limited (see section 5). Some UN agencies were able to work with the Darfur governor’s advisers on women and children to raise awareness of gender-based violence and response efforts.

    Throughout the year, there were reports of abuse committed by government security forces, rebels, and armed groups against IDPs in Darfur, including rapes and beatings (see section 1.g.).

    Outside IDP camps and towns, insecurity restricted freedom of movement; women and girls who left the towns and camps risked sexual violence. Insecurity within IDP camps also was a problem. The government provided little assistance or protection to IDPs in Darfur. Most IDP camps had no functioning police force. International observers noted criminal gangs aligned with rebel groups operated openly in several IDP camps. The protests in Khartoum redirected government forces, namely the RSF, from Darfur to Khartoum, leaving a security vacuum, which prompted an increase in violence.

    As in previous years, neither the Bashir government nor the CLTG government established formal IDP or refugee camps in Khartoum or the Two Areas.

    F. PROTECTION OF REFUGEES

    The Office of the UN High Commissioner for Refugees (UNHCR) reported 1,056,536 refugees and asylum seekers in the country, the majority of whom were South Sudanese. The South Sudanese and Syrian refugee and asylum seeker populations did not regularly present themselves to the government’s Commission for Refugees or to UNHCR for registration. UNHCR reported there were countless South Sudanese in the country who were unregistered and at risk of statelessness.

    Approximately 3,091 refugees from Chad and 13,747 from the Central African Republic lived in Darfur. New Eritrean refugees entering eastern Sudan often stayed in camps for two to three months before moving to Khartoum, other parts of the country, or on to Libya in an effort to reach Europe. In eastern Sudan, UNHCR estimated there were 7,300 new arrivals, mostly from Eritrea, as of October. There was a 50 percent rate of onward movement from the eastern refugee camps. The Bashir government eased international humanitarian NGOs’ access to eastern Sudan, as it did throughout the country, and the CLTG lifted restrictions further.

    In 2018 UNHCR and the government amended the official South Sudanese refugee statistics to include South Sudanese living in Sudan before December 2013. UNHCR estimated that 859,000 South Sudanese refugees were in Sudan. The government claimed there were between two and three million South Sudanese refugees in Sudan. It remained unclear how the government was categorizing who was South Sudanese and who was Sudanese. Many South Sudanese refugees arrived in remote areas with minimal public infrastructure and where humanitarian organizations and resources were limited.

    As of October UNHCR Khartoum hosted an estimated 284,000 South Sudanese refugees, including 60,000 refugees who lived in nine settlements known as “open areas.” South Sudanese refugees in the open areas made up approximately 20 percent of the overall South Sudanese refugee population and were considered among the most vulnerable refugee communities. A 2017 joint government and UN assessment of the open areas indicated gaps in protection, livelihood, shelter, health, and education services.

    Sudan’s and South Sudan’s “four freedoms” agreement provides their citizens reciprocal freedom of residence, movement, economic activity, and property ownership, but it was not fully implemented. The Bashir government stated that, because South Sudanese are recognized as refugees (since 2016), their rights were governed by the Asylum Act, justifying a lack of implementation of the four freedoms. Implementation also varied by state in each country. For example, South Sudanese in East Darfur had more flexibility to move around (so long as they were far away from the nearest village) than did those in White Nile State. Recognition as refugees allowed South Sudanese to receive more services from UNHCR. At the state level, however, governments still referred to them as “brothers and sisters.”

    Abuse of Migrants, Refugees, and Stateless Persons: Asylum seekers and refugees were vulnerable to arbitrary arrest and harassment outside of camps because they did not possess identification cards while awaiting government determination of refugee or asylum status. According to authorities, registration of refugees helped provide for their personal security.

    There were some reported abuses, including gender-based violence, in refugee camps. Throughout the year, the government worked closely with UNHCR to provide greater protection to refugees.

    Refugees often relied on human trafficking and smuggling networks to leave camps. Smugglers turned traffickers routinely abused refugees if ransoms were not paid. In June South Sudanese refugees living in open areas in Khartoum and in refugee camps in White Nile State were attacked by the host communities. Fear of violence prompted some of the South Sudanese refugee population in Khartoum and White Nile to return to South Sudan. South Sudanese refugee returnees faced arrest, extortion, and theft along the route through Sudan to South Sudan.

1. My conclusion in light of the material before the Tribunal is that there is a distinct possibility that cannot be dismissed as remote or fanciful that the Applicant may be exposed to the risk of serious harm if returned to Sudan.

2. Moreover, there is the possibility that he will face difficulties establishing his entitlement to Sudanese nationality, and there is some residual risk, identified above, that as a member of the Moro Nuba he may be regarded by Sudanese authorities as entitled de facto or de jure to South Sudanese nationality; and such a determination might lead to deportation to South Sudan, or statelessness. This would remove any prospect of maintaining a semblance of normalcy, especially in relation to maintaining contact with his minor children and other members of his family in Australia, including his wife.

   South Sudan

3. I have no difficulty in finding that the removal of the Applicant to South Sudan would impose extreme hardship upon the Applicant. He would face life-threatening challenges.

4. This is apparent from various official reports before the Tribunal concerning the situation in South Sudan. I refer to information provided by the DFAT relating to South Sudan.[54]

   After decades of violent struggle, the people of southern Sudan voted for independence in a referendum in January 2011. The referendum was the culmination of a six-year peace process which began with the signing of the Comprehensive Peace Agreement (CPA) in 2005. The Republic of South Sudan became independent from Sudan on 9 July 2011. The UN Interim Security Force for Abyei (UNISFA) was established in June 2011 to monitor and demilitarise the disputed border region of Abyei, between Sudan and South Sudan, as well as to facilitate the delivery of humanitarian aid.

   In December 2013, violence erupted between pro-government forces, supporting President Salva Kiir and anti-government rebel factions led by his former Vice President, Riek Machar, killing thousands. The Intergovernmental Authority on Development (IGAD) – with the support of the African Union, the United Nations and the international community – mediated peace talks between the opposing parties which eventuated in the Agreement on the Resolution of the Conflict (ARC), signed on 26 August 2015. Parties came together in early January 2016 to take forward the agreement and a Transitional Government of National Unity was formed at the end of April 2016, headed by President Kiir, with Riek Machar returning to South Sudan as First Vice President.

   Fighting again broke out in Juba in July 2016 after a clash between rival military factions. Riek Machar fled the country and Taban Deng Gai took the position of First Vice President, with the support of Salva Kiir. A tenuous ceasefire is holding in Juba but fighting continues in various other regions. The Intergovernmental Authority on Development, an East African bloc, has taken the lead on encouraging parties to find a lasting solution to the ongoing conflict through its High Level Revitalisation Forum process as well as bilaterally. On 5 August 2018, parties to the conflict signed the Agreement on Outstanding Issues on Governance and Security Arrangements in Khartoum, Sudan. In September 2018 the main parties signed the Revitalised Agreement on the Resolution of the Conflict in South Sudan which has been extended till November till November 2019.

   Australia worked as a non-permanent member of the UN Security Council in 2013 and 2014 to mitigate the humanitarian crisis in South Sudan. This included supporting a revised mandate for the UN Mission in South Sudan (UNMISS), and prioritising protection of civilians, humanitarian assistance and human rights monitoring.

   The humanitarian situation in South Sudan is dire. There are over four million people internally displaced or seeking refuge in neighbouring countries (Kenya, Ethiopia, Sudan and Uganda). The UN estimates that almost half of the population is facing food insecurity and in need of humanitarian assistance. Australia has contributed almost $113 million in humanitarian assistance since the outbreak of conflict in December 2013, including over $60 million since 2017. Australia has a contingent of Australian Defence Force personnel in South Sudan who have been deployed with UNMISS since its inception in 2011. In 2017 and 2018, the Department of Foreign Affairs and Trade worked closely on peacebuilding with the South Sudanese diaspora in Australia.

   [54] <accessed 9 August 2020>.

5. According to a 2019 Report by the UNHCR, South Sudan remains one of the most dangerous places on earth to deliver aid. Sexual violence is rife and civil unrest widespread. The situation remains dire and South Sudan is unsafe for returnees:[55]

   [55] See UNHCR Position on Returns to South Sudan, Update II, UNHCR, 14 April 2019: humanitarian situation in South Sudan has also not seen any marked improvement and remains dire. Internal and external displacement continues. The Central African Republic (CAR), the Democratic Republic of the Congo (DRC), Ethiopia, Kenya, Sudan and Uganda host a total of 2.28 million refugees from South Sudan. In addition, South Sudan is host to some 300,000 refugees from Sudan and other countries and there are some 1.87 internally displaced persons (IDPs) inside South Sudan, bringing the total number of persons of concern to UNHCR to 4.45 million people.

   …

   6.        Systematic and widespread human rights violations and abuses committed by all parties have inflicted suffering on millions of people, with a lack of accountability for those responsible for the violations. Following the signing of the R-ARCSS, an overall decline in the number of reported human rights violations and abuses by parties to the conflict has been documented. However, the United Nations Mission in South Sudan (UNMISS) continues to corroborate incidents that pose a threat to human rights and physical security. They include instances of killing or wounding civilians, abduction, sexual violence, arbitrary arrest and prolonged detention, the recruitment and/or use of children by armed groups or forces, forced displacement, looting and the destruction of civilian property and extortion.

   7.        Sexual and gender-based violence (SGBV) remains a central characteristic of the conflict and persistent high levels have continued to be documented after the signing of the R-ARCSS. SGBV is endemic and sexual violence and other forms of violence particularly against women and girls persist despite the suspension of most military offensives. In April and May 2018, cases of indiscriminate attacks against civilians were reported in Southern Unity including unlawful killings of civilians, rape, abductions and sexual slavery of women and girls, unlawful destruction of property and pillage, forced displacement and attacks on humanitarian actors and facilities. Rape and gang-rape are being used as a tactic of warfare to pursue military and political objectives, such as clearing areas of perceived enemies, defined along ethnic and political lines. In this context, sexual violence serves a “push factor” for forced displacement. In a series of attacks between 19 and 29 November 2018, at least 157 women and girls sought medical assistance after being raped by unidentified armed men in government-controlled territory while travelling on public roads near the villages of Guit and Nhialdiu in Northern Liech. Instances of sexual violence against men and boys remain significantly under-reported due to social stigma.

   …

   13.      In conclusion, the overall security, rule of law and human rights situation in South Sudan remains highly volatile and implementation of the R-ARCSS is lagging, in particular the foreseen cantonment and disarmament of armed groups. In such a context, persons fleeing South Sudan are likely to meet the criteria for refugee status under the 1951 Refugee Convention, or would otherwise meet the criteria contained in the refugee definition in Article 1(2) of the 1969 OAU Convention Governing the Specific Aspects of Refugees in Africa. In this respect, UNHCR welcomes the fact that South Sudanese fleeing the conflict continue to enjoy prima facie refugee status in all neighbouring states, in line with Article 1(2) of the 1969 OAU Convention.

   14. Depending on the individual profile and circumstances of the case, exclusion considerations may need to be looked into. Furthermore, States need to ensure the civilian and humanitarian character of asylum as a critical aspect of safety and security of refugees and an important international protection standard.

   15. The security, rule of law and human rights situation that prevails today in South Sudan also stands in the way of safe and dignified return for any person originating from South Sudan, whether or not the individual is found to be in need of international protection. Accordingly, while UNHCR recognizes that political changes are underway in South Sudan, the impact of these changes on the ground are not yet such as to make return under conditions of safety and dignity feasible. Therefore, UNHCR reaffirms its April 2015 position on return to South Sudan – Update I, recommending States to suspend forcible returns of nationals or habitual residents of South Sudan to the country.

   16. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security, rule of law, and the human rights situation in South Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection. Under the current circumstances, UNHCR cannot facilitate, promote or otherwise organize returns to South Sudan. (footnotes omitted, emphasis added)

6. A June 2020 report of the United States Department of State (USDOS) states:

   We are deeply concerned at the increased levels of violence across South Sudan.  This causes immense suffering for the people of South Sudan, puts in jeopardy any gains that have been made, and has implications across the region. In Jonglei, the vacuum created by the lack of governance has exacerbated cycles of intercommunal violence. In Central Equatoria, the ceasefire signed in January between the government and non-signatory groups has broken down and we have seen heavy fighting between forces in recent weeks, with villages destroyed and their communities displaced. Shocking reports of sexual violence against women and girls continue. We are concerned with the impact of the fighting on humanitarian access. [56]

   [56] The Troika Calls on the Government of South Sudan to Appoint Governors, Media Note, office of the Spokesman, USDOS, June 2020

   <>

   My overall conclusion is that there is a significant risk that the Applicant may face serious harm if returned to South Sudan.  If returned to Sudan, he may experience considerable hardship and there is the additional risk that he may face persecution by reason of his ethnicity.

   Conclusion with regard to OC5

7. OC5 weighs heavily in favour of revocation of the MCD.

   WEIGHING THE FACTORS

8. My conclusions with respect to Direction No. 79 are as follows.

9. Considerations favouring non-revocation of the mandatory cancellation

   ·PC1 (Protection of the Australian community)

   ·PC3 (Expectations of the Australian community)

   Considerations favouring revocation of the mandatory cancellation

   ·PC2 (Best interests of minor children in Australia)

   ·OC1 (International non-refoulement obligations)

   ·OC2 (Strength, nature and duration of ties)

   ·OC5 (Extent of impediments if removed)

   Considerations that are neutral

   ·OC3 (Impact on Australian business interests)

   ·OC4 (Impact on victims)

10. I note that under Direction No. 79 ‘other considerations’ such as the extent of impediments if removed are not subordinate to ‘primary considerations’. Primary considerations should generally be given greater weight than the other considerations: 8(4). This formulation makes it clear that in the circumstances of a particular case other considerations may be accorded greater weight than a primary consideration.

11. In this case there are two primary considerations in favour of non-revocation, and one primary consideration against. My finding is that the aggregate effect of those considerations favouring revocation (PC2; OC1; OC2; and OC5) outweighs those primary considerations favouring non-revocation (PC1; PC3).

12. For the avoidance of doubt, I consider that the visa cancellation should be revoked under s 501CA(4)(b)(ii), even if OC1 relating to non-refoulement is not taken into account, given the pressing nature of the other primary consideration PC2 and the other considerations which favour revocation.

    CONCLUSION

13. I have found that the Applicant fails the character test. The protection of the Australian community, and the expectations of the Australian community, favour non-revocation of the mandatory cancellation; however, I find that, in the particular circumstances of this case, they are not decisive. I find that there are other reasons why the mandatory cancellation decision should be revoked.

14. I am therefore satisfied that the correct or preferable decision is to set aside the decision of the delegate of the Respondent dated 13 May 2020 and, in substitution, the mandatory cancellation of the Applicant’s ‘Refugee and Humanitarian (Class XB) Subclass 202 – Global Special Humanitarian’ visa is revoked.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

..............................[sgd]..........................................

Associate

Dated: 3 September 2020 

Date(s) of hearing:	20, 21, 24 July, 5 and 6 August 2020
Applicant:	By video
Solicitor for the Respondent:	Mr W Sharpe, HWL Ebsworth Lawyers

APPENDIX - PROVISIONS RELATING TO NON-REFOULEMENT

Section 5(1) of the Act states:

non-refoulement obligations includes, but is not limited to:

(a)  non refoulement obligations that may arise because Australia is a party to:

(i)  the Refugees Convention; or

(ii)  the Covenant; or

(iii)  the Convention Against Torture; and

(b)  any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a). 

Section 5J of the Act provides:

Meaning of well-founded fear of persecution

(1)  For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)  the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)  there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)  the real chance of persecution relates to all areas of a receiving country.

Note:         For membership of a particular social group, see sections 5K and 5L.

(2)  A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:         For effective protection measures, see section 5LA.

(3)  A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)  conflict with a characteristic that is fundamental to the person's identity or conscience; or

(b)  conceal an innate or immutable characteristic of the person; or

(c)  without limiting paragraph (a) or (b), require the person to do any of the following:

(i)  alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)  conceal his or her true race, ethnicity, nationality or country of origin;

(iii)  alter his or her political beliefs or conceal his or her true political beliefs;

(iv)  conceal a physical, psychological or intellectual disability;

(v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)  alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)  If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)  that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)  the persecution must involve serious harm to the person; and

(c)  the persecution must involve systematic and discriminatory conduct.

(5)  Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)  a threat to the person's life or liberty;

(b)  significant physical harassment of the person;

(c)  significant physical ill-treatment of the person;

(d)  significant economic hardship that threatens the person's capacity to subsist;

(e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

(6)  In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.

Section 5L of the Act provides:

Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:

(a)  a characteristic is shared by each member of the group; and

(b)  the person shares, or is perceived as sharing, the characteristic; and

(c)  any of the following apply:

(i)  the characteristic is an innate or immutable characteristic;

(ii)  the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;

(iii)  the characteristic distinguishes the group from society; and

(d)  the characteristic is not a fear of persecution.