Applicant's submissions
72 By ground 2, the applicant submitted that he clearly articulated to the Tribunal two arguments based on established facts:
(a) that he faced a risk of physical violence and crime which would affect his capacity to establish himself in South Sudan, which bears upon para 9.2 of Direction 99; and
(b) that he faced a risk of physical/psychological harm on return to South Sudan due to violence and crime.
73 The applicant relied on statements in his application for revocation of the Minister's decision claiming that he would be killed if returned to South Sudan. The applicant also relied on the following paragraphs in the applicant's statement to the Tribunal, which are under the heading 'Impediments to my return to South Sudan':
51. Aside from the historical persecution I have faced, deportation to South Sudan would pose a further immediate risk to my safety due to my:
a. Imputed anti-government political opinion due to my Madi ethnicity, or my family's reputation for pacifism and history of refusal to fight for any faction;
b. perceived wealth due to existence in a third country; and
c. Madi ethnicity.
I believe the authorities and rebel factions would persecute me if I were to be deported to South Sudan for these reasons.
52. I am also afraid that I would be harmed as a result of my mental health problems. There is a lot of stigma about mental health in South Sudan, and if anyone knew about my mental health issues, they might lock me up. I do not know a lot about the conditions in South Sudan, but I can imagine that I would not be able to access treatment for mental health conditions of alcohol use disorder, depression and PTSD. It seems like a sure thing that my mental health would deteriorate if I were to be returned to South Sudan.
53. If I were deported to South Sudan, I would have no family or community support. I would be forced into a life of poverty and helplessness.
54. In such circumstances, I fear my deportation to South Sudan would lead me to be detained, harmed or killed.
55. Should I be unsuccessful in my current appeal before the Tribunal, I intend to lodge an application for a Protection Visa, as I am afraid of return to South Sudan.
74 The applicant also relied on the following paragraphs in his SFIC, in relation to his fear of harm if returned, including:
35. As to the refugee criteria in s 5H and 5J of the Act the applicant faces a real chance of serious harm for reason of:
a) His race, Madi, due to the ethnic nature of the violence;
b) For his imputed anti-government political opinion;
c) The Applicant's membership of a particular social group, returnee from the West and/or young single male of fighting age;
d) The applicant's membership of a particular social group, a person with a mental health condition
The harm could take the form of abduction, physical violence, detention and related torture, forced recruitment into militia groups, or being unable to subsist.
36. The applicant satisfies the complementary protection criteria in s 36(2)(aa) on the same basis. The applicant also claims to face a real risk of significant from violent crime. That risk is personal to the applicant as a returnee from the west without support.
37. It is apparent from the DFAT Country Information Report for South Sudan dated 5 October 2016, and a more recent report from the United Nations High Commissioner for Refugees (UNHCR) that the situation in South Sudan remains dire. There are violations of international humanitarian law, the denial of humanitarian assistance to those in need, restricted rights of freedom of association and a very poor health system. South Sudan continues to suffer from long term political, inter-ethnic and communal conflict and a weak rule of law. UNHCR considers that persons fleeing South Sudan are likely to meet the criteria for refugee status.
75 The applicant also referred to the applicant's submissions in reply before the Tribunal, which included the following:
Risk of Harm from Violence in South Sudan
4. The Minister notes the applicant's claim that he may face harm because of widespread crime and generalised violence should be considered in relation to impediments to removal in para 9.2.
5. The impediments to removal consideration concerns socio-economic matters. The risk of generalised violence and crime would logically affect the applicant's capacity to establish himself in South Sudan both due to its impact on opportunity and the applicant's fear of such violence and crime.
6. However, the applicant also makes a specific separate claim that another reason to revoke the decision is his risk of physical and psychological harm on return to South Sudan in and of itself. That should be considered separately from para 9.2.
7. In relation to the claim to fear physical harm from violent crime, the applicant's risk is elevated as he is a returnee from the west with no support in South Sudan. That claim is supported by the OSAC South Sudan Security Report which states at AB 216 - 217:
Violent crime (e.g., murder, armed robbery, home invasion, cattle raiding, kidnapping, harassment) is rampant. In Juba, the most frequently reported violent crimes include armed robbery, home invasion, and carjacking.….Gang-on-gang violence has also been noted inside Juba. Gang-related violence occurs at all hours and, while violent actions are largely directed at gang members, collateral victimization to those in the vicinity is a concern. Gang-affiliated robberies have been reported more frequently and do target individuals and small groups. Those traveling alone or in small groups during the late evening hours (especially those on foot) are often the target of armed robbery.
Crime during the daytime has increased. Home/compound invasions are common, especially in facilities with weak security, poor exterior lighting, and poor access control. Generally, perpetrators do not kill or seriously harm their victims, but commonly threaten/use force. Attempts to resist perpetrators provoke violence.
Outside Juba, road ambushes and banditry are common, indiscriminate, and often involve violence.
…
Kidnapping Threat
The U.S. Department of State has included a Kidnapping "K" Indicator on the Travel Advisory for South Sudan, indicating that criminal or terrorist individuals or group have threatened to and/or have seized or detained and threatened to kill, injure, or continue to detain individuals in order to compel a third party (including a governmental organization) to do or abstain from doing something as a condition of release.
The applicant will be at greater risk as a member of a minority tribe, with no support. There is also a risk if the applicant's time in Australia is discovered he could be viewed as having access to funds or wealth making him a target for crime or kidnapping. The applicant's capacity to speak English (see below) may itself be an indicator of wealth.
76 In oral argument, the applicant placed particular emphasis on the Tribunal's failure to address his claim to fear harm from violent crime. The applicant submitted that, while the Tribunal considered the applicant's protection claims (at [128]-[130]), it failed to consider whether the risk of violence and/or harm, particularly from violent crime, was another reason for revocation in and of itself (that is, apart from para 9.2 of Direction 99). The applicant argued that, apart from the requirements of Direction 99, the Tribunal was required to read, identify, understand and evaluate the applicant's claims to fear harm due to violence and crime, but there is no evidence that the Tribunal took this step. The applicant argued that the Tribunal made an error of the type described in GBV18 at [40]-[45].
77 In respect of para 9.2 of Direction 99, the applicant submitted that the Tribunal did not refer to his representations concerning the risk of harm from violence and crime. The applicant argued that this supports an inference that it was not considered by the Tribunal or that the Tribunal misconstrued or misapplied this paragraph of Direction 99. While the Tribunal referred to the applicant's claims (at [128]) and the country information (at [129]), the applicant argued that this is not sufficient as para 9.2 required a consideration of how the violence and crime would personally affect the applicant's capacity to re-establish himself. The applicant said that there is no evidence that the Tribunal engaged in that analysis.