The Ethnicity claim squarely arose
107 It is common ground that the appellant made no express representation in terms that his return to Sudan or South Sudan would be in breach of Australia's international non-refoulement obligations.
108 In his written request for revocation the appellant made general representations that he feared for his safety if he returned to his "country of citizenship", which at that point in time, it appears, he believed to be Sudan. In particular, he said he would "face certain death" if he did, without specifying any basis for that fear.
109 The material said to found the appellant's contention was based in part on a report on South Sudan published by the Department of Foreign Affairs and Trade in 2016 (DFAT report), which was before the Tribunal. DFAT assessed the security situation in South Sudan as "extremely volatile" and reported that a person's ethnicity significantly correlated with their risk of experiencing violence:
… Credible in-country sources, including human rights contacts, suggest that there is a significant correlation between ethnicity and an individual's risk of discrimination and violence. DFAT assesses that ethnicity is the most significant determinant of an individual's risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 which intertwined both ethnicity and political opinion.
Official and societal discrimination and violence linked to an individual's ethnicity occurs in two distinct ways - as a result of the formal conflict between the Government and Sudan People's Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict. ... While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO.
(Emphasis added.)
110 The appellant also relied on the evidence he gave to the Tribunal concerning his fear of harm if he were to return to Sudan or South Sudan.
111 In cross-examination before the Tribunal, the appellant claimed to fear returning to Sudan because his father had died serving in the military during the Sudanese civil war and the people who killed him might want to take "revenge" on him. He could not identify who these people might be but said that "there is a lot of tribal issues there". Despite having left Sudan as a young child, he claimed that these people would be able to identify him because "[n]ews would be spreading around the community, they would say 'That son is the son of that guy who was here in the military'". When pressed, he maintained that there was an "imminent threat" against him "because [his] father was in the military". In reply to a question from the Tribunal member as to why anyone would care about him since the civil war was over, he replied: "I cannot trust what is happening in Sudan", "what is down on the ground there", and "[I] might get killed easily by people". When the member asked why anyone would want to kill him, he replied: "[t]his is what I've been telling you, because of the troubles, still they are down there, and because of my father". When cross-examined on statements in a DFAT report on Sudan that there were areas throughout that country which were not affected by conflict and were "relatively stable", the appellant responded: "Conflicts are everywhere, even in my area", by which, he clarified, he meant South Sudan.
112 At this point the Tribunal member asked the appellant why he referred to South Sudan as his area when he had said that he had never been there. He replied that his parents were born in South Sudan and that Sudan and South Sudan were one country at the time he was born.
113 The appellant identified himself as Dinka at the beginning of the hearing. Contrary to his written representations, in his oral evidence he indicated to the Tribunal that his country of origin was South Sudan rather than Sudan. The Tribunal member asked him:
Now, if you were to return to Africa, do you know whether you would return to Sudan or South Sudan, because yesterday you were making it very clear that you were not from South Sudan, that you were from Sudan. That's what you've put in your application, you mentioned that you were from Khartoum, we've gone to the bother of getting another country report on Sudan, because you said you were from Sudan, not South Sudan. And now you appear to be saying that you're from South Sudan.
114 The appellant replied:
Yes as I told you I was born in Khartoum right after the separation. My mother is telling me we are from South Sudan.
115 The member then asked him whether he knew if he was entitled to citizenship "in" Sudan or South Sudan but he was unable to answer the question. His mother gave evidence that his "homeland" was South Sudan.
116 The Tribunal was aware of the different risk profiles for different tribes in the two countries based on the country information. This was evident in the following exchange with the Minister's lawyer, Ms Mak:
MEMBER: And I know that there, you know, even from looking at this, that South Sudan is majority Dinka, whereas Sudan is majority Arabic.
MS MAK: Yes.
MEMBER: And in fact, there's not really much mention of the Dinka people at all, if any, in that Sudanese report.
MS MAK: No.
MEMBER: Whereas there's certainly problems going on in South Sudan because it appears that all the major ethnic groups are in danger, depending on where they are.
MS MAK: Yes.
MEMBER: In the rebel-controlled places or the government-controlled places.
MS MAK: Yes.
(Emphasis added.)
117 The appellant was asked where he intended to reside if he returned and he said he did not know because he did not have any friends or family there. During closing submissions, the Minister's lawyer submitted, by reference to the DFAT report (on South Sudan), that the appellant would not be at risk of persecution because Juba is "a place that is safe to reside if you are a person from the Dinka [tribe]" and that he could reside in Juba without facing a specific threat of violence. The transcript of the hearing records the Tribunal member making the following comment to the Minister's representative:
The best that we've got is that his mother says that both her and the father are from Rumbek, which is an area that's currently held by the government, which the report indicates is not a place where Dinka, who are the majority in South Sudan, face persecution. So I suppose, either if he's in Juba, which is the capital, or in Rumbek, which is where the parents are from, I suppose your submission is that the evidence says that he'd be safe in either of those places where he's most likely to return to.
118 The DFAT report stated that Dinkas were at a high risk of violence in South Sudan, albeit in "conflict affected areas". The appellant claimed that people would want to kill him in both Sudan and South Sudan on account of his father's role in the military and because of ongoing "tribal issues" and "troubles" in both countries. He stated that "conflicts are everywhere". The only conflicts in South Sudan identified by the country information were linked to ethnicity. As a self-represented review applicant, the appellant's ability to clearly articulate his claims was plainly limited. Despite that limitation, the Tribunal was alert to the issue and the relevant country information, including the threats to Dinkas in South Sudan.
119 The Minister submitted that the appellant's claim to fear harm on the basis of any perceived or actual membership of the Dinka tribe did not emerge from the material because the DFAT report stated that Dinkas only had a high risk of harm in "conflict affected areas" and that those living in the capital, Juba, had a low-risk of harm because it was under Dinka-government control. There are several problems with this submission.
120 First, the appellant did not, and was unable to, identify the place in South Sudan to which he would return. Second, the submission overlooked the statement at [2.31] of the DFAT report that "the relative stability within Juba is extremely fragile". Third, in any event, while DFAT assessed the risk to Dinkas in Juba on the basis of their ethnicity as "low", it did not say that there was no risk.
121 The appellant's representations raised an obvious issue arising from his ethnicity and his claimed fear of violence and supported by the country information. Put another way, the appellant's claims for protection on the basis that he would be at risk of harm from violence because of his membership of the Dinka tribe in South Sudan squarely arose from the material before the Tribunal.