1503817 (Refugee)

[2018] AATA 1736

1503817 (Refugee) [2018] AATA 1736 (13 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1503817

COUNTRY OF REFERENCE:                  Sudan

MEMBER:Nicole Burns

DATE:13 April 2018

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 1958.

Statement made on 13 April 2018 at 3:25pm

CATCHWORDS
Refugee – Protection visa – Sudan – Ethnicity – Mix of Kawhala tribe – Nuba tribe – Political opinion – Female student anti-government activist – Supporter and member of Sudan People’s Liberation Movement – North (SPLM-N) – Social group – Single mother – Victim of mistreatment and detention– Fear of honour killing – Fears harm by Sudanese Armed Forces and NISS

LEGISLATION
Migration Act 1958, ss 36, 65, 499,
Migration Regulations 1994, Schedule 2

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 and Border Protection 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 on 26 September 2013 and the delegate refused to grant the visa on 4 March 2015.

3. The applicant appeared before the Tribunal on 13 March 2018 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 her registered migration agent.  She attended the hearing.

5. The applicant claims to be a Sudanese national, born to Sudanese parents in [another country] in [year].  The applicant came to Australia in July 2012 to study, holding a Sudanese passport.  The bio data pages of her passport are on the Department for Immigration and Border Protection’s (the Department) file.  On this basis, and given the delegate had no issues about the applicant’s claimed nationality, the Tribunal accepts she is a national of Sudan for the purposes of assessing her claims for protection (below).

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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).

8. 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.

9. 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’).

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant is owed protection as a refugee or under Australia’s complementary protection provisions in relation to Sudan.  For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

12. In summary  the applicant claims she was an anti-government and human rights activist in Sudan and specifically a supporter and member of the Sudan People’s Liberation Movement – North (SPLM-N).  She claims her father and uncle were also SPLM-N members.  She claims she was detained by the authorities twice – in 2008 and 2009 – during her visits home from studying in [Country 1].  She claims she was active protesting against the Sudanese government in [Country 1] and received threatening phone calls from the Sudanese security forces whilst in [Country 1].  

13. Before the Tribunal the applicant has raised new claims to fear serious harm – including in the form of honour killing – at the hands of her family, her tribe, and/or the authorities as a single mother and divorced woman, following her separation from her second husband in Australia in November 2017.  She is afraid her former husband, whose family is well connected in Sudan, has spread a rumour that she had an extra-marital affair in Australia, which will add to her risk in this regard.

    Family composition, background, ethnicity, and home area

14. The applicant claims she is originally from South Kordofan – a conflict affected area in Sudan – as are her parents (who are long divorced).  Her mother currently resides in [City 1] in South Kordofan where she works as a farmer.  Her father lives with his third wife (and the applicant’s [half siblings]) in Kassala where he works for [an NGO].  She has two sisters: one who is studying at university [and] the other who has applied to undertake a master’s degree in [another country] (and currently residing in Sudan). 

15. The applicant claims she lived in Sudan from 2000 until 2007 with her family then studied at a university in [Country 1] from 2007 until July 2012, before coming to Australia. 

16. The delegate did not accept the applicant’s claims that her parents (and therefore the applicant) originated from South Kordofan in large part because the applicant had stated that her parents were originally from Khartoum in her partner visa application.[1] In her statutory declaration[2] and oral evidence to the Tribunal the applicant explained that when she completed her partner visa application, although she knew her parents were from South Kordofan, she could not remember exactly where her parents were born, she was in a dispute with them and unable to confirm at the time, and her then partner encouraged her to list Khartoum as it is recognisable as Sudan’s capital city.  At hearing the representative noted that the applicant was unrepresented at the time of her partner visa application.  Apart from this anomaly about her parents’ birth places in the partner visa application, the Tribunal notes the applicant has consistently stated that her parents originate from South Kordofan, including at her interview with the delegate.  Further, she has provided translated copies of her parents’ nationality certificates[3] which show they originate from South Kordofan, and her oral evidence at hearing about her family’s background was detailed and spontaneous.  On this basis the Tribunal accepts the applicant’s parents originate from South Kordofan. 

    [1] In March 2013.

    [2] Dated 28 July 2015.

    [3] According to DFAT, an individual is required to provide a birth certificate in order to obtain a certificate of nationality and, where this is not possible, a witness must confirm the information provided.  (DFAT Country Information Report Sudan, 27 April 2016 at 5.42.)

17. At hearing the applicant told the Tribunal she only lived in South Kordofan for around two years after returning from [another country] in 2000, when she was around [an age], where she went to school.  After her parents separated she moved around with her father who worked in different areas (with [NGOs]): including in White Nile State, Khartoum and Kassala.  She started studying at [a] University in [in] 2006, but was dismissed at the end of the year due to her political activities (described in more detail below).  Her mother stayed living in [City 1], South Kordofan, where the applicant stayed for six months after she was dismissed from university, before going to [Country 1] to study.  The applicant’s oral evidence was detailed in this respect and the Tribunal accepts her claims.   Given these considerations, the Tribunal accepts the applicant’s home area is South Kordofan. 

18. In terms of ethnicity, the applicant claims she is mixed, but identifies with her father’s tribe and sub-tribe, according to tradition: that is the Kawhala tribe and Burgan sub-tribe.  Her mother belongs to the Nuba tribe.  The delegate did not accept the applicant was a member of the Kawhala tribe because country information indicated they are an Arab tribe and fighting with the government against the SPLM-N, and because no information was located indicating that the Kawhala tribe are supporters or members of the SPLM-N.  The delegate concluded that the applicant is therefore a descendant of an Arabic tribe.  

19. The applicant explained in her statutory declaration to the Tribunal that although historically the Kawhala tribe derives from Arabic roots, the Kawhala (Burgan) tribe is no longer purely Arabic, noting there has been intermarriages over many years.   The applicant said at hearing that the Burgan sub-tribe is now considered predominantly African; that her family identifies as African not Arabic; and that she will be required to list her tribe as Burgan on any Sudanese government documents and therefore identifiable as belonging to an African tribe by the authorities. As a Burgan, people will know she is from South Kordofan.  She added that she is identifiable as belonging to an African tribe because of her physical appearance. 

20. The applicant also explained that her and her father’s tribe is made up of millions of people and it is impossible for them all to share the same political views.  Whilst she acknowledged that the conflict has racial/ethnic elements, it is not simply divided along ethnic lines, noting for example that although the Secretary General of the SPLM-N is from the same tribe as the president of Sudan, he has completely opposing political views.  She argued that one’s tribe is not necessarily an indication of someone being pro or anti-government, although some tribes have preferences, and some are more Arab or more African. 

21. In her statutory declaration to the Tribunal the applicant stated that whilst some members of the Kawhala tribe support government policy and actions, there are many who do not; that she and her family oppose the government, because their actions discriminate against the South Kordofan region; and that persecution takes place against anyone who is against the government, regardless of tribal allegiance or ethnic background. 

22. On this matter the representative explained in her written submission to the delegate and Tribunal that the Kawhala tribe in South Kordofan came to the Nuba Mountains over a hundred years ago and is a mix of Kawhala and Nuba.  The applicant’s father’s sub-tribe – Burgan – is mixed with African tribes due to mixed marriages over many years.  At hearing the representative argued that tribal identity and allegiance in Sudan is complex, noting - as DFAT has in its latest country information report on Sudan – that the population of Sudan includes more than 500 different ethnic and sub-ethnic groups.[4]  She argued that the delegate took a very simplistic approach to understanding the applicant’s ethnicity and emphasised, as did the applicant at hearing, that someone’s ethnicity is a separate and independent matter to their political opinion and that it is unreasonable to expect that an entire tribe will hold the same political views.   

    [4] DFAT Country Information Report Sudan, 27 April 2016 at 3.1.

23. Having accepted for reasons above that the applicants’ parents are from South Kordofan, the fact that the applicant has been consistent in her claims about her parents and her own ethnic mix, and her detailed oral evidence at hearing about these matters, the Tribunal accepts the applicant’s claims about her ethnicity.  It also accepts that whilst conflict in South Kordofan (and Blue Nile) has ‘political, ethnic and religious motivations’[5] and some tribal groups are known to support certain political parties or movements in Sudan, the situation is complex, and it is too simplistic to discount someone’s political allegiance solely on the basis of their ethnic identity. 

    [5] Ibid at 3.11

24. For these reasons the Tribunal accepts the applicant’s ethnicity is a mix of Kawhala tribe, Burgan sub-tribe (from her father) and Nuba tribe (from her mother).  It accepts she identifies primarily with her father’s tribe and sub-tribe, as is tradition.  Nonetheless the Tribunal notes some risk may arise belonging in part to the Nuba tribe, noting DFAT’s advice 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.[6]

    Political opinion claims

    [6] Ibid at 3.12

25. The applicant’s core protection claims relate to her alleged support to the SPLM-N in Sudan and also in [Country 1] as a student which brought her to the adverse attention of the Sudanese authorities during her visits home from studying abroad. 

26. The Tribunal found the applicant to be a credible witness whose oral evidence was detailed, coherent and spontaneous.  It was also reasonably consistent with her written claims to the Tribunal[7] and Department.[8]  She was knowledgeable about the SPLM-N’s history, evolution and current status, and the broader political context at the time she became involved, which was supported by country information.  She was also aware of more recent factional splits and the current status of the party.  The Tribunal notes the delegate did not accept the applicant was a member and supporter of the SPLM-N, in large part because she did not recognise the governor of South Kordofan from 2011 to 2013 (Ahmed Haroun) when asked at interview.  The applicant explained to the delegate in a post-interview submission and to the Tribunal that whilst she knows who Ahmed Haroun is, she did not recognise his name at the time of the interview because she was confused, and he is usually known with a precursor name – ‘Maulana’.  As well, he became governor after she left Sudan the last time.  Country information does indicate that Ahmed Haroun was appointed governor of South Kordofan after beating SPLM-N’s candidate in gubernatorial elections in May 2011, which was almost two years after the applicant had left Sudan and stopped her political activities.  In such a context the Tribunal accepts as plausible the fact the applicant did not recognise his name on a piece of paper at interview (noting also she did not have the aid of an Arabic interpreter at the delegate’s interview as submitted). The Tribunal notes she did however recognise key SPLM-N’s leaders from photographs presented by the delegate at interview, and provided reasonably detailed responses to his questions about the history and evolution of the party (as set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal on review).   Given these considerations the Tribunal does not draw an adverse inference from the fact the applicant failed to recognise the name of the former governor of South Kordofan at interview. 

    [7] Statutory declarations dated 28 July 2015 and 9 March 2018. 

    [8] Dated 19 September 2013.

27. The applicant provided to the Department a number of documents in support of her claimed involvement with the SPLM-N including a typed letter[9] from [Mr A, an officer bearer], SPLM-N Kassala Sector, and a letter[10] from [a] representative of SPLM-N Middle East and North Africa [office].  In a written submission the representative explained the applicant contacted the SPLM-N Middle East office after her interview with the delegate who had asked her for evidence of her political activity in [Country 1].  The applicant also provided to the Department a copy of a medical report from [a] Hospital indicating that she was hospitalised and given medications (to help her sleep) after her second detention by the authorities.  At hearing she claims she was mistreated, threatened and heard gun shots and people being tortured (including a recording of her uncle being interrogated) during her detention.

    [9] Dated [in] June 2013

    [10] Dated [in] December 2014

28. At the review stage the applicant provided to the Tribunal a copy of a letter[11] from [Mr B], representative of SPLM-N Australia who confirms the applicant’s past support to the SPLM-N in Sudan and [Country 1].  At hearing the applicant said [Mr A] (whom she knows reasonably well) gave her [Mr B’s] contact details after she contacted him after the delegate’s interview.  In a three-way Skype call between the applicant, [Mr A] and [Mr B], [Mr A] confirmed the applicant’s involvement with the SPLM-N in Sudan and [Country 1] (having first confirmed with [a] student leader in [Country 1]).  Afterwards [Mr B] then issued the letter in support of the applicant.  Recently the Tribunal contacted [Mr B] who confirmed[12] that he wrote the letter in support of the applicant’s political claims.   

    [11] Dated [in] May 2015

    [12] In an email to the Tribunal on 20 March 2018.

29. After the hearing the representative submitted a letter[13] from a psychologist [who] noted, among other things, that the applicant has consistently reported that she was detained as a result of her involvement with the SPLM-N in Sudan, since her initial referral in November 2014.

    [13] Dated [in] March 2018

30. For these reasons the Tribunal accepts the applicant’s claims, which were detailed and expanded upon at hearing, about her political activities and profile, summarised as follows:

    ·Growing up in Sudan the applicant was made aware of human rights violations committed by the government against people of South Kordofan (and others) by her father and uncle in particular. 

    ·The applicant joined the SPLM (which later became the SPLM-N) whilst at university [in] 2006, motivated to work in opposition to the government after her father showed her videos evidencing violence in Darfur, particularly against women and children, where he travelled for work with [an NGO]. 

    ·She had been introduced to the SPLM by her [uncle], who was an active human rights defender and combatant against the government in South Kordofan who disappeared in 2007. When the applicant was detained in 2009 the officers played her a recording of her uncle being interrogated: she believes he was killed by the government because of his involvement with the movement. 

    ·The applicant used to attend party meetings and conferences at university which she believes is why she was dismissed from university [in] December 2006, along with 10 or so other students.  

    ·Six months later, in 2007, the applicant moved to [Country 1] to study at [a] University, [as] did her sister.  There she was politically active, for example through disseminating papers and photographs of human rights violations and the poor humanitarian situation in Sudan, and organising meetings to talk about women’s issues in Sudan, among other things.  There were thousands of Sudanese students there and she and her sister (as well as other female Sudanese students) were monitored and received telephone calls if behaving inappropriately: for example if seen not wearing a head scarf, or talking to men.   

    ·The applicant was detained by members of the National Intelligence and Security Service (NISS) on arrival at the airport in Khartoum on her first visit home, in April 2008.  She was kept in a small room for two weeks.  She was questioned about her (and others) involvement in anti-government activities in [Country 1] and asked about her uncle.  She was threatened with rape and denied food and water for two days.  She was also shown photographs of people being killed.  Before she was released she signed papers stating that she would not attend any further political gatherings against the government.  She stayed at her [relative]’s house in Khartoum before returning to [Country 1] six weeks later, in mid-2008.

    ·On return to [Country 1] the applicant received a number of threatening phone calls from students in [Country 1] linked to the Sudanese security from mid-2008 until October 2008.  She was told she was being monitored, and received threats that she and her sister would be raped and/or killed.

    ·Ten days after the applicant returned to Sudan from [Country 1] in May 2009 she was forcibly removed taken from her [relative]’s house in Khartoum by National Intelligence and Security Service (NISS) members, taken to a centre and questioned why she attended conferences in [Country 1] after she had signed the paper saying she would not.  The applicant was detained at the centre for five days, then moved to a place known as the ‘ghost house’ in Khartoum (notorious for detaining and ill treatment of political prisoners) for four days before being released.  There the officials – she thinks members of NISS – played her the recording of her uncle being interrogated; she was questioned about her involvement in activities in [Country 1] and other students there and about South Kordofan; and she was insulted verbally, spat on, and sexually assaulted.  Scared she would be raped, the applicant tried to kill herself.  She was released eventually with the help of a lawyer whom her father had hired. 

    ·After her release from detention the applicant filed a complaint with her lawyer against the government; however, she was advised by the lawyer to leave the country.[14]

    ·After being released from detention the applicant went to Kassala where she stayed with her father and his family for a few weeks before returning to Khartoum airport to return to [Country 1]. However at the airport she was told by officials that her name was ‘blocked’ and she could not leave.  She returned to Kassala where her father engaged a lawyer who paid a high ranking government officer a ‘good amount’ of money to have her name removed from the blocked list. The applicant then returned to [Country 1] to complete her studies.

    ·In [Country 1] the applicant received a number of threatening phone calls and rumours spread among the Sudanese diaspora that she had been raped in prison.  The applicant stopped being political. 

    ·The applicant’s sister received threatening phone calls about the applicant whilst she was in [Country 1] before the applicant came to Australia.

    ·In around 2015, according to the applicant’s sister, some people enquired about the applicant with her father and her father’s neighbours.  Her father also received phone calls from people threatening that he would lose his job if he reported anything (about the applicant’s detention and mistreatment) and has not been able to leave the country for his work trips: specifically he was turned back from the airport three or four times, the last time in 2016.

    [14] The applicant provided a letter titled ‘certificate of independent legal advice’ dated [in] July 2013 from [an advocate] to the Department. 

1. In her statutory declaration provided to the Tribunal and at hearing the applicant said she also believes the Sudanese Embassy in Australia has come to know she is seeking protection.  Specifically she said in 2017 she became friends with a woman in [Australia] who shortly after she found out the applicant had applied for protection, added her to a private [social media] thread: the group provided information about activities of the Sudanese Embassy in Australia.  Subsequently the applicant found out from a mutual friend that the same woman – [who knows someone that] works at the Sudanese Embassy in Canberra – had been asking about her protection claims.  The Tribunal accepts the applicant may have befriended a Sudanese Australian woman [who knows someone that] works at the Sudanese Embassy in Canberra who included her in an online group.  However whether this means the applicant is being actively monitored by the Sudanese authorities in Australia is largely speculative. 

2. The Tribunal initially was concerned that the applicant returned to Sudan from [Country 1] in 2009 despite her claims to have been an active member of the SPLM-N and detained as a result by the authorities for two weeks in April 2008.  At hearing the applicant said she returned to Sudan from [Country 1] in May 2009 because she had not been threatened since October (2008) and she had stopped her political activities and kept a low profile: as such she thought she would be ‘ok’ because she was not in the government’s face anymore.  Although of some concern, given the Tribunal otherwise found the applicant to be a credible witness, it accepts her explanation as to why she returned to Sudan in this regard.

3. Given these findings the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution as SPLM-N supporter and member on return to Sudan in the foreseeable future.

4. In her written submission to the Tribunal the representative submits the applicant has a well-founded fear of persecution on return to Sudan on the basis of her political opinion against the Sudanese government and as a supporter of an armed opposition group (the SPLM-N); her ethnicity (mixed Burgan (Kawhala) and Nuba); and her membership of a number of particular social groups.[15]  For reasons that follow the Tribunal finds the applicant faces a well-founded fear on return to Sudan on political opinion grounds as a supporter of the SPLM-N.  It has therefore been unnecessary to consider the other grounds advanced. 

   [15] That is: ‘member of the SPLM/N’; ‘female anti-government activist’; ‘divorced woman in Sudan’; ‘female adulterer in Sudan’; ‘single mother in Sudan’; ‘single woman in Sudan’; and ‘failed asylum seeker returning to Sudan’.  

5. The Tribunal has accepted the applicant was politically active as a member and supporter of the SPLM-N in Sudan and whilst studying in [Country 1], detained twice as a result, and threatened and sexually assaulted.  However, the last time she was detained was in 2009, which is nine years ago, and on the applicant’s own oral evidence the threats stopped shortly thereafter.   The applicant claims people have enquired about her with her father (and his neighbours) after she left Sudan the last time, and he has received threatening phone calls and been prevented from leaving the country, the last time in 2016.  This indicates that she may be of some ongoing adverse interest to the authorities. 

6. The applicant’s claim that she is currently of interest to representatives of the Sudanese Embassy in Australia is speculative at this stage.

7. Looking to the future, the Tribunal accepts, based on her past activities and her views against the Sudanese government evident at hearing, the applicant would become politically active in opposition to the ruling Sudanese government on return, and if not, it would be only because of her fear of persecution.  Even if she is unlikely to be politically active in the immediate future given she has young children to care for, the Tribunal notes (and accepts) her oral evidence that she would become politically active again in Sudan because she does not like Islamic politics, human rights violations and the mistreatment of women in particular. Also she believes in freedom of speech and opinion and is against ruling the country through religion.   Although she has not been politically active whilst in Australia, the Tribunal accepts that is due primarily to the different political context and environment and the fact that she has been caring for her young [son].  Even so, she has kept abreast of issues in Sudan and spoke at length at hearing about the current political landscape in Sudan, emphasising rights issues and oppression continues, especially for people of South Kordofan. 

8. In her written submission to the Tribunal the representative submits that the applicant has an adverse profile with the Sudanese authorities as a student anti-government activist due to her activities at university [and] [Country 1] as a member of the SPLM-N, an armed opposition group.  She refers to country information from a variety of sources to support her contention that the security situation in South Kordofan and Blue Nile remains poor and the humanitarian situation worsening; that Sudanese authorities continue to suppress political opposition through violent tactics and often the focus is protesters at universities because they are believed to be vocal forces in the opposition; that female student activists in Sudan are at particular risk and rape and sexual assault are used as tactics to suppress their political activities; that the student activists and others are under surveillance by the Sudanese authorities in country and abroad; and that those returnees from Darfur or the Two Areas (South Kordofan and Blue Nile) are also at risk in other areas of Sudan. 

9. The Tribunal has taken into account these submissions and the country information contained within it, as well as independent country information about the broader security situation in Sudan (South Kordofan in particular) and the situation for people who support armed opposition groups, as in the applicant’s case, below.

10. The unilateral ceasefire called by the Sudanese government in June 2016 for conflict areas in South Kordofan and Blue Nile – also called the Two Areas – and extended to Darfur, has reportedly held, despite sporadic clashes. The UN Independent Expert on the human rights situation in Sudan continued to receive reports that government forces and the SPLM-N had engaged in sporadic military attacks in South Kordofan; hostilities continue between government and armed opposition elements in various parts of Sudan, and millions of people remain displaced.[16]  The UN Independent Expert on the human rights situation in Sudan also noted despite some positive steps taken by the government and an overall decline in military operations in those areas, the overall security situation remained volatile and unpredictable and that the prevalence of armed groups, which include government-backed militia and other armed actors who operate in total impunity, continue to pose a serious threat for the protection of civilians and human rights in Darfur, Southern Kordofan and Blue Nile.[17]

    [16] United Nations Human Rights  Council, Report of the Independent Expert on the situation of human rights in the Sudan, 27 July 2017, p.9, and  Atlantic Council, ‘Sudan: A Strategy for Re-Engagement’, 14 July 2017, p14,

    [17] Ibid pp 5-7 and 14

11. Country information also indicates that there are ongoing attacks on civilians in conflict zones and detention of government critics.  Rapid Support Forces (RSF) and other government aligned forces have continued to carry out attacks on civilians in the conflict zones of Darfur, South Kordofan and Blue Nile, and Sudan’s national security agency detains student activists, human rights defenders, members of opposition parties and others who are critical of government policies.[18] 

    [18] Human Rights Watch, ‘UN Rights Body Should Strengthen Scrutiny of Situation in Sudan’, 27 September 2017, >

    With respect to treatment of opposition supporters, country information indicates that the Sudanese authorities continue to suppress opposition, sometimes engaging violent tactics such as arbitrary arrest, detention, torture and killings.  DFAT state the following about the high risks for individuals associated with (or perceived to be associated with) armed opposition groups in Sudan, including the SPLM-N: 

    The main armed opposition include the Darfur-based JEM, SLM-Minnawi and SLM-al-Nur and the SPLM-North, based mainly in Blue Nile and South Kordofan. In 2011, the armed opposition formed an alliance called the Sudan Revolutionary Front with the common objective of removing the ruling NCP.

    The Government is attempting to militarily defeat the armed opposition in areas of Darfur, South Kordofan and Blue Nile, putting individuals in these areas at high risk. There are credible reports of individuals being detained by the Government due to their actual or perceived support for the armed opposition, including reports of women being detained due to their association with men who were perceived to be supporters. DFAT understands that the Government has been responsible for carrying out violent interrogations of individuals who are in detention due to their perceived links to the armed opposition. The Government has prosecuted supporters of the armed opposition with individuals being sentenced to imprisonment or death, although DFAT is unaware of whether or not individuals were actually executed.

    Overall, DFAT assesses that individuals who are associated with, or are perceived to be associated with, the armed opposition face a high risk of discrimination and violence by the Government, particularly in areas that are controlled by the Government. DFAT further assesses that this risk is faced by both individuals who are actively involved with the armed opposition, as well as individuals who are simply located in areas controlled by the armed opposition. Some DFAT contacts suggest that men who are perceived to be associated with the armed opposition face a higher risk of being actively targeted by the Government than women. Within areas under the control of the armed opposition, DFAT assesses that individuals are at risk of being caught up in the conflict between the Government and armed opposition, including through indiscriminate bombings, armed attacks and extrajudicial killings[19].

    [19] DFAT Country Information Report Sudan, 27 April 2016 at 3.42 – 3.44

12. The UK Home Office in an August 2017 policy and information note on opposition to the government in Sudan states:

    Persons who oppose the government are reported to be subject to reprisals and various abuses, including harassment, forced disappearance, arbitrary arrest and detention (which may vary from a few days to months and years), and ill-treatment by agents of the state, principally the National Intelligence and Security Service (NISS). The government’s reaction to a perceived threat varies and may depend, in part, on the prevailing political climate as well as the person’s profile and activities. Periods of high tension, such as the build up to national elections, are likely to lead to an increase in harassment, arrest and detention of opposition activists.[20]

    [20] UK Home Office, Country Policy and Information Note, Sudan: Opposition to the government, including sur place activity, Version 1.0, August 2017, at 2.3.2,

13. In the same report the UK Home office states:

    Those who oppose the government and are considered a threat to it may be at risk of serious harm or persecution.

    ...

    Persons who are members of armed opposition groups are likely to be at risk of persecution by the government.[21]

    [21] Ibid at 2.3.22 and 3.1.6. 

14. DFAT state the following with respect to extra-judicial killings in Sudan, enforced disappearances and abductions, and the risk of torture of those perceived to directly threaten the authority of the government:

    While it is difficult to obtain accurate data on such killings in Sudan, DFAT assesses that extra-judicial killings are continuing to occur, particularly in conflict-affected areas. Reports suggest that extra-judicial killings are often indiscriminate, and exist due to the pervasive culture of impunity that protects the authorities.

    ...

    DFAT assesses that abductions and enforced disappearances by both the Government and armed opposition remain possible for individuals who are perceived threaten the authority of the Government or armed opposition.

    ...

    DFAT assesses that those who are perceived to directly threaten the authority of the Government may face risk of torture. This is likely to affect those who are outspoken. DFAT is also aware of some examples of civilians who are not outspoken being exposed to torture. DFAT is unable to prescribe a particular risk to an individual’s potential to experience torture or comment on the general incidence of torture.

    ...

    The NISS and other arms of the Sudanese security apparatus continue to arbitrarily arrest and detain individuals, particularly political opponents and activists. High-profile political opponents have been arbitrarily arrested and detained by the NISS and denied access to legal representation or visitors. For example, in June 2015 Amnesty International called for the release of 171 detainees including college students, political activists and civil society activists.

    Overall, DFAT assesses that arbitrary arrest and detention are commonly used by the Government, particularly against individuals that are or are perceived to be outspokenly critical of the Government.[22]

    [22] DFAT Country Information Report Sudan, 27 April 2016 at 4.2, 4.4, 4.13, 4.15 & 4.16.

15. NISS maintains broad powers of arrest and detention under the National Security Act 2010, which allows suspects to be detained for up to four and a half months without judicial review.  Amnesty International reported in November 2017 that the NISS often used these powers to arbitrarily arrest and detain persons many of who were then subject to torture and other ill treatment.[23]  

    [23]  Amnesty International, ‘Urgent Action: Sudanese Student Held in Solitary Confinement’, 27 November 2017,

16. The US Department of State in their March 2017 human rights practices report for Sudan in 2016 identify ‘abuses perpetrated by NISS with impunity through special security powers given it by the regime’ as one of the three most significant human rights problems in Sudan.[24] 

    [24] US Department of State , Country Reports on Human Rights Practices 2016 – Sudan, 3 March 2017, Executive Summary,

17. With respect to the powers of the NISS, DFAT relevantly state:

    Overall, DFAT assesses that the NISS targets and detains individuals associated with the armed opposition, unarmed opposition, NGOs (particularly those who work on sensitive issues such as human rights), journalists, and individuals associated with particular religious organisations. DFAT further assesses that individuals located in areas controlled by the armed opposition may have some level of protection from the NISS, owing to the Government’s lack of access in these areas.[25]

    [25] DFAT Country Information Report Sudan, 27 April 2016 at 5.9

18. Such country information indicates that persons associated with, or perceived to be associated with, the armed opposition face a high risk of discrimination and violence by the government in Sudan, particularly in areas controlled by the government.  Persons within the areas under control of the armed opposition are at risk of being caught up in the conflict, including through indiscriminate bombings, armed attacks and extra-judicial killings.  

19. Having regard to such country information and what it accepts of the applicant’s past experiences in Sudan and political profile, the Tribunal is satisfied that she faces more than a remote chance of serious harm on return to South Kordofan on imputed political opinion grounds, as an SPLM-N member and supporter.  Based on country information the Tribunal accepts the conflict situation remains precarious, including in South Kordofan, and that the Sudanese authorities continue to target opposition supporters, student activists and others perceived to be a threat. The Tribunal accepts the applicant would become politically active in some capacity on return to her home area, or if not only because of her fear of serious harm at the hands of the authorities as a result.  This is evident from her past involvement with the SPLM-N in Sudan and [Country 1] and ongoing interest in developments in Sudan. In such circumstances, the Tribunal is satisfied the applicant faces a real chance of being threatened, intimidated and physically assaulted on return to Sudan by the authorities. The Tribunal is satisfied the applicant’s imputed political opinion is the essential and significant reason for the harm and that the harm is systematic and discriminatory.

20. With respect to state protection, it is submitted that the applicant fears harm from state actors, including the Sudanese Armed Forces and NISS.  The Tribunal has found the applicant faces a well-founded fear of persecution on return to Sudan from the authorities because of her support to an armed opposition group. DFAT report that several areas in Sudan are not under effective state control because of the security situation, including South Kordofan which is controlled by the armed opposition.  DFAT indicate that they understand (anecdotally) that the armed opposition’s capacity, outside of its involvement in direct conflict activities, is limited.[26]  Given these considerations the Tribunal is not satisfied that state protection from the harm she fears as a supporter and member of SPLM-N is available to the applicant on return to Sudan, either in her home area of South Kordofan or elsewhere.

    [26] DFAT Country Information Report Sudan, 27 April 2016 at 5.1

21. In considering the issue of relocation, the Tribunal notes the agents of the harm the applicant  fears in South Kordofan are the authorities who control many of the other areas of Sudan.  The Tribunal also notes DFAT’s advice in this respect:   

    DFAT assesses that individuals located in areas controlled by the armed opposition in Blue Nile and South Kordofan are unlikely to be able to relocate to other areas of Sudan, including Khartoum, due to their perceived association with the armed opposition. DFAT contacts said individuals located in areas controlled by the armed opposition in South Kordofan and Blue Nile are being prevented from leaving which severely limited their ability to internally relocate in Sudan.[27]

    [27] Ibid at 5.32

22. For these reasons the Tribunal is not satisfied that the applicant can safely relocate to another part of Sudan to avoid the harm she fears in South Kordofan.

    CONCLUSION

23. 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

24. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act 1958.

    Nicole Burns
    Member