AATA Case No. 1420100

1420100 (Refugee) [ 2016] AATA 4383 (6 September 2016)

Last Updated: 28 September 2016

1420100 (Refugee) [2016] AATA 4383 (6 September 2016)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 1420100

COUNTRY OF REFERENCE: Sudan

MEMBER: David Corrigan

DATE: 6 September 2016

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 06 September 2016 at 4:10pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Sudan, applied for the visa [in] February 2013 and the delegate refused to grant the visa [in] December 2014.
3. The applicant appeared before the Tribunal on 26 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.
4. The applicant was represented in relation to the review by his registered migration agent.

RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the 'refugee' criterion, or on other 'complementary protection' grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve 'serious harm' to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of 'serious harm' are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase 'for reasons of' serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
13. Fourth, an applicant's fear of persecution for a Convention reason must be a 'well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a 'well-founded fear' of persecution under the Convention if they have genuine fear founded upon a 'real chance' of being persecuted for a Convention stipulated reason. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression 'the protection of that country' in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ('the complementary protection criterion').
17. 'Significant harm' for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. 'Cruel or inhuman treatment or punishment', 'degrading treatment or punishment', and 'torture', are further defined in s.5(1) of the Act.
18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration -PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

20. The applicant's claims can be summarised as follows. He was born in [his home town], Al Jazeera province, Sudan in [year]. He is an ethnic [Tribe 1] and [Tribe 2] from Darfur; however he lived in Al Jazeera and Omdurman between [year] and 2012. As a person of Darfuri ethnicity, he is easily identified by his accent and his skin colour. He is imputed by authorities as supporting Darfuri rebels and has received constant verbal abuse in Al Jazeera because of his Darfuri origins. In 1996, he moved to Omdurman to escape discrimination.
21. After the Justice and Equality Movement (JEM) attack on Omdurman in 2008, he was routinely stopped by the police because of his ethnicity. He was arrested and detained overnight in 2008 whilst travelling from Omdurman to [Al Jazeera]. In 2012, police visited his [business] in Omdurman and accused him of supporting Darfuri rebels, providing them with information and money.
22. [Several] weeks prior to leaving Sudan, the applicant was arrested and detained overnight. He was interrogated, humiliated and mistreated. Soon after his release he was shot at whilst sleeping in front of his [business].
23. The applicant also fears harm as a member of a particular social group consisting of "Returned failed asylum seekers from a western country from an African tribe".

Country of reference

24. The applicant has claimed to be a citizen of Sudan. He has provided a copy of his passport, Sudanese identity card and drivers licence that supports this claim. On the basis of this evidence, I find that he is a national of Sudan for the purposes of the Convention.

Assessment of claims

25. I have significant concerns about the credibility of the applicant's claims to have been harmed in the past for a number of reasons including:
    • The inconsistency in his claims as to where he was targeted by the police for selling [products] on the street; in his statutory declaration he said this happened in Al Jazeera whilst he told this happened in Omdurman.
    • His submitted copy of his driver's licence that gave his occupation as [an occupation] rather than as a [business owner];
    • His [social media] indicates that he attended [a named university] and is inconsistent with his claims to have left for Omdurman because of harassment in his home area;
    • The implausibility that the police would have visited his [business] for many years but not have found the book of customers owning him money and the police then using this list of debtors (which is a common business practice and according to the applicant had common Muslim names such as [two specified names] in it) to accuse him of supporting rebel groups.
26. However, given my below findings concerning the applicant's tribal background and the country information, I have not made firm findings about his claims of past harm. An applicant does not have to show past persecution in order to demonstrate a well-founded fear of being persecuted.^[1]
27. The applicant has given consistent evidence that he was born in and lived in Al Jazeera until about 1996 and that he then lived in Omdurman until he came to Australia in 2012. He has given consistent evidence that his parents both originate from Darfur and that he is of the [Tribe 1] tribe and I accept this to be the case.
28. I have had regard to all the country information referred to in the delegate's decision including that of the International Crisis Group which said in 2009 that Darfuri rebel groups are dominated by members of the Zaghawa, Fur and Massalit tribes. I have also taken in to account country information of [source deleted] which stated the [Tribe 1] then living in [Country 1] had entered Sudan as a result of [a major event] though the source also states in a table that in southern western Darfur the majority of [Tribe 1] came from [Country 1] during the [major event] which does not preclude that there were [Tribe 1] already there or in other parts of Darfur. I have also taken into account country information that when conflict emerged in 2003 that members of the "new' African tribes including the [Tribe 1] did not side with the traditional African tribes of the area and were subsequently considered collaborators and that these "new" African tribes were not targeted by government forces or Arab militias. However, I have given greater weight to other and more recent country information and oral evidence of a witness from [a migrant community organisation in Australia].
29. [Name deleted] of the [migration community organisation] gave oral evidence to the Tribunal that he was the former [Senior Official] of this association and of [a certain] tribe. He said he had known the applicant since he had arrived in Australia and had helped with his re-settlement. He said he had met with the applicant every 2-3 weeks or so since his arrival in Australia. He said the applicant had told him of his relationship with the [Tribe 1] tribe and [Tribe 2] tribes. The witness stated that he went to school with members of both tribes and they did not migrate recently to Darfur though they extend into [Country 1]. The witness said [that the movement with Country 1] was very free without the need for passports. He said Darfur tribes mix and inter-marry and that given their complexion and heritage it was difficult to tell who was who. He said that all African tribes were targeted and that it could easily be told that someone was from Darfur.
30. The Australian Department of Foreign Affairs and Trade (DFAT) in a recent report have stated:

3.4 Minority Rights Group International ranks Sudan third on its 2015 Peoples Under Threat Ranking, identifying the Fur, Zaghawa, Massalit and others in Darfur, along with the Ngok Dinka, Nuba and Beja, as the most at risk ethnic groups in Sudan. Based on discussions with in-country contacts, DFAT assesses that this is broadly accurate and that non-Arab ethnic groups including the Fur, Zaghawa and Massalit from Darfur and Nuba from South Kordofan face the greatest risk of being deliberately persecuted or discriminated against on the basis of their ethnicity, as detailed below.
...
3.8 There are also examples of individuals from Darfur being targeted outside of Darfur, particularly in Khartoum. There are a number of factors that influence the treatment of Darfuris in Khartoum, including their actual or perceived support for or association with rebel groups, or the criticism, particularly from students, of the implementation of the Doha Document for Peace in Darfur (which guaranteed free university education for Darfuris). For example, between late April and early July 2015 over 200 Darfuri students and their families were detained in Khartoum following protests.
3.9 Overall, DFAT assesses that Darfuris in Khartoum face a moderate risk of discrimination and violence on the basis of their ethnicity and their actual or perceived support for or association with rebel groups.^[2]

31. The United Kingdom Upper Tribunal in January 2015 considered the case of an applicant who was from the Berti tribe which originates from Darfur and which is one of Sudan's non-Arab tribes. An expert gave evidence to the Upper Tribunal which was summarised as:

(i) The Sudanese authorities would treat the appellant as a non-Arab Darfuri. What would matter to them was that he was a member of a non-Arab tribe who originate from Darfur. It would make no difference to them that his father had moved away from Darfur and that he himself had neither been born nor ever lived in Darfur.
(ii) Since the Tribunal case of AA there had been no improvement in the attitude of the Sudanese authorities to non-Arab Darfuris and indeed for members of the Berti tribe things were now worse, as a significant number of members of that tribe were educated and educated Darfuris were now being increasingly targeted by the security forces on suspicion that they were assisting the rebel forces.
(This like (iv) below) were matters which arose from his oral evidence). Even though there was evidence that a significant number of educated Berti lived in Khartoum and were able to go about their business without significant problems, they were increasingly at risk of becoming a target for adverse treatment.
(iv) On return the authorities would view the appellant not just as a non-Arab Darfuri/Berti, but as someone who had lived in the UK and had claimed asylum there. They would know from his passport that his exit visa had expired. This would add to the risk he would face on return.^[3]

32. The Upper Tribunal concluded:

In the country guidance case of AA (Non-Arab Darfuris-relocation) Sudan CG [2009] UKAIT 00056, where it is stated that if a claimant from Sudan is a non-Arab Darfuri he must succeed in an international protection claim, "Darfuri" is to be understood as an ethnic term relating to origins, not as a geographical term. Accordingly it covers even Darfuris who were not born in Darfur.
For the above reasons we are satisfied that even though not born in Darfur the appellant has established that he faces a real risk of persecution on return as a non-Arab who will be perceived as a non-Arab Darfuri.^[4]

33. I note that Darfur has a [border] with [Country 1] and I accept taking into account the witness' evidence that the applicant's tribe has a longer history in Darfur than that arising since [the major event]. I have also taken into the witness' evidence that there is a substantial rate of mixing and inter-marriage amongst Darfur tribes noting that the United Nations have commented that even between Arab and African tribes in Darfur there is a high measure of intermarriage and they can hardly be distinguished physically.^[5] Though the applicant is not of the Berti tribe referred to in the Upper Tribunal's decision, he is of a non-Arab Darfur tribe and I am after considering all of the evidence unable to discount as remote that he will not be perceived by the Sudanese authorities in either Al Jazeera or Omdurman or any other part of Sudan (such as Khartoum) as a being Darfuri and associated with the rebels. In making this finding, I note the above Minority Rights Group identifies others in Darfur (and not just the Fur, Zaghawa, Massalit) as the most at risk ethnic groups in Sudan.
34. DFAT assesses that Darfuris in Khartoum face a moderate risk of discrimination and violence on the basis of their ethnicity and their actual or perceived support for or association with rebel groups and their assessment indicates that Darfuris are targeted in other parts of the country. I am of the opinion that a moderate risk of violence is sufficient to equate to a real chance of serious harm particularly in the light of the Upper Tribunal's decision regarding non-Arab Darfuris.
35. After considering the country information as a whole and the applicant's individual circumstances, I find that if the applicant returns to Sudan, now or in the reasonably foreseeable future, there is a real chance that he will be targeted for serious harm by the Sudanese authorities as per s.91R(1)(b) of the Act. I find that the essential and significant reason for the harm would be the applicant's race and imputed political opinion as per s.91R(1)(a) of the Act and that the conduct feared by the applicant is systematic and discriminatory as per s.91R(1)(c) of the Act.
36. As the harm feared by the applicant is from the Sudanese authorities, I find that state protection is not available to him and that there is nowhere in Sudan where, in the reasonably foreseeable future, there is no appreciable risk of the persecution feared by the applicant. His fear of persecution is well-founded.
37. There is no evidence before me to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act and I find that this section does not apply in his case.

Conclusions

38. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

39. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

David Corrigan
Member

^[1] In Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, Gummow and Hayne JJ at [192] observed that '[r]egrettably, cases can readily be imagined where an applicant's fear is entirely well founded but the particular applicant has never suffered any form of persecution in the past'.
^[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Sudan, 27 April 2016.
^[3] MM (Darfuris) Sudan CG [2015] UKUT 00010 (IAC) v The Secretary of State for the Home Department: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 5 January 2015.
^[4] MM (Darfuris) Sudan CG [2015] UKUT 00010 (IAC) v The Secretary of State for the Home Department: United Kingdom: Upper Tribunal (Immigration and Asylum Chamber), 5 January 2015.
^[5] United Nations, Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General, 25 January 2005.