1612248 (Refugee)

[2020] AATA 1303

1612248 (Refugee) [2020] AATA 1303 (13 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612248

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Melissa McAdam

DATE:13 January 2020

PLACE OF DECISION:  Sydney

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 13 January 2020 at 12:02pm

CATCHWORDS
REFUGEE – protection visa – Sudan – race – Beja ethnicity – Beni Amer sub-tribe – deprived of land and basic social services, and being exposed to extreme poverty – particular social group – women in Sudan – widows in Sudan – subject to discrimination – deprived of basic rights – imputed political opinion – two of the applicant’s sons were members of the Beja Congress – real chance of further inter-tribal, intra-tribal and government conflict – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 499
Migration Regulations 1994 (Cth), 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 on 26 July 2016 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 11 June 2015. The delegate refused to grant the visa on the basis that the applicant did not meet the visa criteria.

3. The applicant was represented in relation to the review by her registered migration agent.

   CRITERIA FOR A PROTECTION VISA

4. 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, he or she 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.

5. 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 because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, she is a refugee if she is outside the country of her former habitual residence and, owing to a well-founded fear of persecution, is unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

8. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. 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 relevant country information assessments 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.

   SUMMARY OF CLAIMS AND EVIDENCE

   Protection visa application

10. The following is a summary of the claims and information provided by the applicant in her Protection visa application:

    a.The applicant was born on [date] in [Town 1], Sudan.  She submitted a copy of her Sudanese passport issued in 2010 and renewed [in] 2014 in Port Sudan.

    b.She is of Sunni Muslim religion. She was widowed in 1986 and is a housewife and a pensioner.  She lived in [location] in [City 1] in Sudan.  She attended primary school in [City 1].

    c.She has three sons. One son lives in Sudan and two are in [Country 1].  She has two daughters. One daughter is in Sudan and her other daughter lives in Australia.

    d.She departed Sudan [in] October 2014 and entered Australia [in] October 2014 on a Visitor visa.

    e.She is of Beja ethnicity from Eastern Sudan. The Beja group were deprived of their basic civil rights, oppressed and marginalised by the governments of Sudan.  The ruling regime continues to discriminate against and persecute the Beja people.

    f.The applicant’s family was persecuted because of their Beja ethnicity. In the 1980s the applicant’s husband was continually refused a national commercial licence which would enable him to trade internationally. The Ministry of Trade refused to grant the licence to any Bejas. The applicant’s family suffered financial hardship because the applicant’s husband could not expand his [trade] outside of Sudan.

    g.The Beja Congress was established to launch a democratic government that respects basic human rights of all citizens regardless of race, religion and ethnicity.

    h.The applicant’s sons have been denied government jobs. [Child A] was denied employment at any national company because he was a member of the Beja Congress. Private companies owned by different tribes also rejected job applications by the applicant’s sons.

    i.The applicant’s son, [Child A], was refused entry into the police force because of his ethnicity. He was told that he would not be accepted and the government was surprised he had even lodged an application.  [Child A] then enrolled in [an education institute] to study a [qualification].

    j.Two of the applicant’s sons, [Child B] and [Child A], secretly joined the Beja Congress. The applicant does not know what activities they were involved in.

    k.The applicant’s son, [Child B],  was refused entry to the [defence force] although he achieved the required marks, much higher than needed. His application was rejected because he was part of the Beja Congress in the school student union.

    l.In February 2014 [Child B] was arrested and detained by regime security men. The family did not know his location or the charges against him.  The applicant went to the national security office in [City 1]. She was made to wait a long time before meeting with a government officer. The officer humiliated and mistreated the applicant. He kept her as a prisoner for almost the whole day.  He told her that her son deserved to be  detained if he was acting against the government.   He ordered his soldiers to drag the applicant out.  She was released in the evening and warned not to return or to ask about her son again.

    m.The applicant told her daughter in Australia what had happened and she applied for a Visitor visa for the applicant on 27 April 2014.

    n.The applicant’s second son, [Child A], became fearful and fled to [Country 1] in April 2014.

    o.The security men would come to the applicant’s house claiming to want to search for documents belonging to [Child B]. They would search the house but not find anything. They would insult the applicant and use rude words against her. They pushed her onto the floor and cursed her with insults. The security officers also asked about her other son, [Child A], where he was. She told them she did not know.

    p.After six months, in August 2014, [Child B] was released from detention.  He had physically suffered and there were marks of torture on his body.  He did not tell the applicant anything about what happened to him in detention. He was required to report to the security office once a week.

    q.One month after [Child B] was released police came to the applicant’s home to detain him again. They searched for him but could not find him.  A neighbour called [Child B] and told him not to return. The applicant also called him to tell him not to return.

    r.The police went to the applicant’s daughter’s and son’s houses to search for [Child B]. The police mistreated the applicant’s two children.

    s.In September 2014 [Child B] fled to [Country 1] to join his brother.

    t.Four security men went to the applicant’s house to ask where her two sons were.  The applicant told them she did not know. They searched the house again. They pulled the applicant’s veil off and pulled her hair. The applicant swore at them and the government. They kicked her in the [Body Part 1] and left her in a lot of pain.  A neighbour came and took her to the hospital.

    u.It became known in her area that the applicant had sworn at the officers and was against the government regime.

    v.The applicant could not stay at her house after this incident. She stayed at a friend’s apartment and slept on the floor.  None of her relatives would let her stay in fear the security would come to their homes.  The applicant did not go outside in case she was arrested. 

    w.The security searched for the applicant at her daughter’s house and her own home.

    x.She is afraid she will face persecution in Sudan by the ruling regime because of her sons’ political opinion and her own experiences with the police officers who assaulted her.

    Departmental Interview, 22 July 2016

11. The following is a summary of the claims and information provided by the applicant in her Departmental Interview:

    a.The applicant visited [Country 2] in 2010.  Her husband died in 1990 of an accident.

    b.She obtained an exit visa to leave Sudan.

    c.Her daughter, [Child C], lives in Australia.

    d.The delegate put to the applicant that in 2012 [Child C] applied for the applicant to come to Australia. The applicant does not recall anything about this.

    e.She is in contact with her son, [Child D], and speaks to him about once a month.  He is married and lives in [City 1].  He works in a [business].

    f.She is contact with [Child B].  [Child B] contacts her a little. He lives in [Country 1]. He has been there for one year and ten months. He is not married.  His circumstances are difficult. He has no job. He left Sudan because the government was mistreating him.  He is okay in [Country 1] but his financial situation is terrible.

    g.[Child A] also contacts the applicant a little. He is in [Country 1]. He has been there one year and nine months.  He went to [Country 1] before [Child B] did. She has difficulty being accurate because of the problem that happened to her in Sudan.  [Child A] is unmarried. He does not have a job.  [Child A] studied [Discipline 1] in [an institute].  He was refused jobs in Sudan.

    h.The applicant last spoke with her sons in [Country 1] in May.

    i.The applicant has contact with her daughter [Child E]. She calls a little, every month.  She lives with her brother, [Child D], in [City 1].  She studied [Discipline 2] at university. She is not married. She does not work because the government are against the Beja.

    j.The applicant has one brother. He does free work in the [market].

    k.Beja tribes include the Hadendowa and Beni Amer. They live in Eastern Sudan. They are Muslims.

    l.The applicant lived alone in Sudan. Her house is now empty. It was a rented house.

    m.[Child A] applied to join the police but was refused because he was Beja. [Child B] studied at [Institute 1].  He joined the Beja Congress. The security arrested [Child B] and held him for six months.

    n.The applicant went by herself to enquire about [Child B].  She was humiliated and mistreated. She was made to sit and wait.  The officer was from the government ruling party and against the Beja. He told the applicant her son is against the ruling party and deserves to be arrested.  He told his staff to kick her out.

    o.[Child A] was living with her then.

    p.They heard that anyone with the Congress will be arrested so [Child A] escaped.

    q.The delegate put to the applicant that there was country information indicating the Beja Congress was in discussions with the government at the time so it was unlikely anyone would be arrested. The applicant responded that the internal problems, between the tribes, were not solved.

    r.Other Beja people told the applicant that [Child B] went to [Country 1].

    s.She was in hospital for three days after being kicked.  She has no paperwork from the hospital. When she left the hospital she went to her house but did not stay.  She went to a friend’s house and stayed with her.

    t.She arranged her air ticket to Australia at a market in Khartoum. She hid her face.

    Delegate’s Decision

12. The Delegate accepted that the applicant is of Beja ethnicity; two of her sons were active members of the Beja Congress and have fled to [Country 1] out of fear of being targeted by the Sudanese authorities; [Child B] was detained for six months and searched for afterwards; the applicant was humiliated when she enquired about [Child B]’s disappearance in February 2014; and the applicant was physically harmed in September 2014 when officers searched her place for [Child B] and she spoke out against the regime.

13. The Delegate did not accept that the applicant has a political profile in Sudan.

14. The Delegate accepted the applicant had a subjective and genuine fear in Sudan.

15. The Delegate considered that the Sudanese officials were not interested in punishing the applicant further in Sudan. The Delegate considered she would most likely be looked upon as an older woman releasing her frustrations who did not pose any real threat to the government.  The Delegate found the authorities would be unlikely to target the applicant as a publicly known and vocal opponent of the government.

16. The Delegate was not satisfied the Sudanese government have maintained any interest in pursuing the applicant’s sons. The Delegate was not satisfied there was a real chance the  authorities would interrogate or harm the applicant further regarding her sons’ whereabouts.

    Information to the Tribunal

    Pre-Hearing Submission, 19 August 2019

17. On the evening before the hearing the applicant submitted the following written material to the Tribunal:

    i.A submission from the applicant’s agent outlining the following:

    The Applicant is a member of the Beja community, a persecuted minority in Sudan. The Beja’s population was around the 1.9 million in the early 21st century. The Beja people can be Christians or Muslims. The Beja congress was formed in the 1960’s to manage the Beja’s interest after facing unfairness and grievances. The congress was part of the National Democratic Alliance which contained all the Sudanese opposition parties and they maintained an armed wing.

    The Beja people have encountered many incidents of persecution such as:

    -Risk of being killed. In January 2005, the Sudanese authorities killed more than 20 Beja people.

    -Risk of being arrested. In January 2005, around 150 were arrested by the Sudanese authorities.

    -Neglected by the government

    -No access to public service

    -Lack of schools

    -Lack of health care

    Whilst it is conceded that the situation in Sudan is changing, it is very hard to predict if this change is for the better or for the worse of the country. Sudan has gone through the likes of a civil war since 2018. There are tensions in many areas of Sudan, especially when troops fire at protesters (June 2019 incident).

    In its report dated 12 July 2019, BBC indicates that it is suggested that the military will allow a two-years transition period from the military rule to a civilian rule. It is submitted that Sudan is not a safe place due to the war and tensions arising from political conflicts.

    To date, it is advised that Sudan is not a safe place due to terrorists attacks. This is due to the ongoing civil unrest and poor security situation in Sudan. The unrest is all over Sudan and can be demonstrated as follows:

    -Northern, southern and Abyei Region, there are:

    Armed conflicts

    Threats of terrorist attacks

    Kidnapping

    High levels of violent crimes

    Armed militants

    Extremists

    Smuggling goods and people

    -Near the boarders with Libya

    -Sudan is currently a state of emergency

    -Violence can occur without warning

    The Beja is a persecuted minority in Sudan which puts them in worse place than the rest of the Sudanese population.  Directing the applicant to return to Sudan will imposes an extremely high risk on her life and wellbeing.

    ii.A statement from the applicant’s daughter, [Child E], dated 13 December 2018, (in Arabic with English translation).  She writes that she was present when the government came to their home in February 2014. Her mother was beaten and her brother, [Child B], arrested until April 2014. She then went with her brothers, [Child A] and [Child D], to see their mother in hospital in Port Sudan. Her mother suffered lacerations and bruising. She was given pain sedatives.  [Child A] fled to [Country 1] and communication with him stopped so that they did not know anything about him.  Her mother travelled to her friend in Khartoum.  All this caused [Child E] suffering.  After this she asked her sister in Australia to get a Visitor visa for her mother

    iii.A statement from the applicant’s son [Child A], dated 30 November 2018 (in Arabic with English translation). He writes that he was at home when the government came to their home and beat their mother and arrested his brother, [Child B].  He went to the Security office to check on [Child B] and found there were marks of torture on him. After that [Child A] fled to [Country 1] fearing intimidation. His communication with his family stopped for a lengthy period. [Child B] was detained from February to April.  When [Child B] was released [Child A] advised him to come to [Country 1] and he did in September 2014.  All the dispersion and separation happened because of their connection to the Beja Congress.

    iv.A statement from the applicant’s son [Child B], dated 28 November 2018[1] (in Arabic with English translation). He writes that he was arrested at his home by the security apparatus from February until April 2014 because he belongs to the Beja Congress. His mother was beaten in front of him.  He suffered types of torture during his arrest.  After his release he was kept under house arrest. He had to report to the security office every morning.  When his brother [Child A] learned he was released he advised [Child B] to travel to [Country 1]. [Child B] went there in September 2014. His mother stayed with her friend [Ms F] in Khartoum from September to October 2014.  Her daughter sent her a Visitor visa to Australia and she travelled [in] October 2014.

    v.A statement from [Ms G], dated 13 December 2018 (in Arabic with English translation). She has been the applicant’s neighbour for 22 years. She was at home when she heard disturbing noises and learned that the government attacked the applicant’s house because her sons belong to the Beja Congress. The applicant’s son [Child B] was arrested and her son [Child A] fled.  The applicant was severely beaten and was transferred to a hospital in Port Sudan as a result to undergo examinations. The results of the examination were normal apart from some bruising.

    vi.A statement from, [Ms H], dated 14 December 2018  (in Arabic with English translation). She writes that she was the applicant’s neighbour for 35 years. She was in the applicant’s house when the government came and beat her severely, arrested her son [Child B], and [Child A] fled.  After that the applicant was transferred to Port Sudan hospital for checks.  The applicant travelled to her friend in Khartoum in September 2014 because of the harassment from the security apparatus.

    vii.A statement from [Ms F], signed as ‘[Alias F]’, dated 15 December 2018 (in Arabic with English translation).  She writes that she is a friend of the applicant and lives in Khartoum.  She has known the applicant for 22 years.  She knows the applicant’s children follow the Beja Congress. The government assaulted their home and caused them harm as a result. They arrested the applicant’s son [Child B] and her son [Child A] fled to [Country 1].  [Ms F] contacted the applicant and asked her to come to Khartoum to stay with her.  She came in the ninth month of 2014.  After this [Ms F] contacted the applicant’s daughter in Australia and asked her to apply for a Visitor visa for her mother because she was in a situation and watched by the security apparatus.  The applicant was sent a visa and travelled to Australia [in] October 2014.

    Tribunal Hearing, 20 August 2019

    [1] The English translation reads as ‘14 December 2014’ but the Arabic language document shows the date to be ’28 November 2018’.

1. The applicant appeared before the Tribunal on 20 August 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

2. The following is a summary of the information provided by the applicant at the hearing:

   a.She is living in Australia with her daughter [Child C], [Child C]’s husband and their children.  [Child C] has [number of] young children and one has a [disability], so [Child C] is unable to attend the hearing.

   b.The applicant was born in [Town 1].  She has not lived anywhere else in Sudan. She obtained her passport from the passport office in Port Sudan.

   c.She had school education until year [level].  She can read and write in Arabic.  When she finished school she married.

   d.Two of her sons live in [Country 1] and her other son and daughter are living in [City 1].  She does not know where in [Country 1] her two sons live. They move around a lot to find work.  They lived in [City 2] for a time.

   e.The applicant’s husband died in 1990.  After his death the applicant supported herself and her children by working in [various places].  Sometimes she was able to find work and sometimes she could not.  When she could not, she relied on the little money she was able to save while working and tried to manage.  Their lifestyle was simple and borderline.  Her husband had been poor.  They did not have any farmland or own any shops.  Relatives could not lend support as they were barely subsisting themselves.

   f.When her children became adults they tried to find work but did not have good jobs. They found simple work in [shops] and [markets].

   g.When Beja people apply for jobs they are not accepted.  They cannot progress.  They are not considered human beings by the Sudanese government.  They are not allowed into secondary and tertiary education.

   h.The applicant’s brother did not go to school because their father passed away when they were children and her brother had to then support the family.

   i.The applicant’s sons and her daughter [Child E], were able to go to [college] in Port Sudan. The applicant’s daughter [Child C] attended [University 1]. The applicant was not able to visit her there because she did not have enough money to travel to Om Durman.  [Child C] was able to go to the university because the people in [City 1] collectively helped her financially to do so. At the university the teachers would not give [Child C] her correct marks because she is Beja.

   j.Beja people dress differently from others in Sudan. They wrap their traditional dress, the thobe, differently so they are recognised as people from the east.

   k.The applicant had not travelled anywhere else in Sudan until she went to Khartoum to depart for Australia.  In 2010 the applicant went to [City 3] in [Country 2].  She flew there from the Port Sudan airport.  [Child C]’s husband in Australia arranged the trip for her so that the applicant could look after his sick sister in [City 3]. The applicant stayed there with his sister for a while until she passed away. The applicant then returned to Sudan.

   l.Her son [Child D] has problems in Sudan.  He cannot find proper employment.  He cannot travel because he has little money.

   m.The soldiers rule Sudan. They belittle the Beja and treat the Beja as uneducated and inferior. There are no Beja people allowed into the army. The [specified] security office is in the market.  The government and security officers are from other tribes.

   n.The applicant belongs to the Beni Amer tribe of the Beja.  She is of Sudanese not Arabic descent.

   o.The witness statements were written by the people who signed the statements. The Tribunal put to the applicant that each of the written statements appeared to be written on the same type of paper and in the same handwriting, indicating that the same person wrote each statement, despite the named authors living in different places, namely [Country 1], [City 1], and Khartoum. The applicant said she had no explanation for this. The applicant received the written statements all together by posted mail from [Child D] in Sudan.  One of the writers, [Ms F], is her friend who lives in Khartoum.  She is also Beja.

   p.The Beja Congress is still active in Sudan. They have conferences to try to solve their problems without violence.  Women cannot join the Beja Congress.  This is according to the Beja tradition and culture.

   q.She cannot get work now in Sudan because of her age and health. She has [Body Part 1] pain.  The applicant is scared she might be tortured if she returns to Sudan.  The country is not safe. There are armed robbers around and no proper government yet.

   Post-Hearing Submission, 10 September 2019

3. On 10 September 2019 the applicant’s Agent provided the following written information to the Tribunal:

   i.A written submission outlining the following:

   -The difficulties the applicant faces as a widow in Sudan. Upon the passing of her husband, she was deprived of support from traditional sources causing her economic hardship.  Widows in Sudan can be extremely vulnerable to intimidation, violence, abuse or even repudiation by society.  Daughters raised by widows in Sudan may be subjected to discrimination and unfair treatment because of their widow mother’s status.

   -Treatment of the applicant as an ethnic Beja. She was subjected to violence from the authorities in relation to her politically active sons, [Child B] and [Child A]. She fears for her life in Sudan due to the continuous raids from the authorities to her home looking for her sons. As a result of one of those raids, she was taken to hospital for treatment  and remained in hospital for a few days. She believes that the authorities will keep raiding her home until they find information about her sons. Due to cultural beliefs, she had to leave school to get married and care for her family. She has four children and her husband passed away in 1990. Since1990, she has been working hard against the customs and traditions in Sudan as a female widow.  A Beja person may find it hard to find a job. The applicant has only worked with Beja business owners in [various] shops.

   -Traditional differences between the male and female Beja members. The Beja community is one of the older, minority communities in Sudan. According to Beja customs and traditions, males are responsible for looking after everything for the family. The male takes control of everything in the home. The female will look after the home and bring up the children. The female would help and assist the male with his needs. Therefore, to be living without a male in Sudan would make the Applicant without a male supporter. Living alone would be dangerous for her and she would be helpless.  The Beja females can be subjected to many difficulties such as lack of freedom; not permitted to make personal choices in their lives, such as choice of clothes, belief and careers; deprivation of their basic rights in life such as where to live, who to marry and education.

   -Recent Beja Activities. The Beja are a very simple minority in Sudan. Their main activities include grazing and agriculture. They love freedom and moving from one place to another. They are ignored by the government and there have been incidents where Beja people were killed by the government or have been forced to leave their land and relocate elsewhere. Recently there has been slight improvements due the pressure of human rights organisations on the government. This however has not been seen amongst a large number of the Beja. The Beja still lose their lands to the government and still are deprived from their basic rights. Recently the tribes started armed clashes between each other. The Applicant is a member for a tribe called Bani Amer. In June 2019, 30 people were killed due to the armed clashes between the Bani Amer and the Nuba tribes in Sudan. In late August 2019 dozens of people were shot due to tribal  clashes between the Nuba and Bani Amer. Even though it may seem that the Beja situation is progressing, there are still news about armed clashes between the Applicant’s tribe and others. The Applicant is an elderly lady and these kinds of armed clashed will put her life at risk in Sudan.

   -Lack of Education. The Applicant did not have much education. As she stated in the hearing, she left school at year [level] and did not receive any further education. Also looking at her community, it is clear that they are very simple people who are not exposed to much of the modern world. This was shown in the hearing when the Applicant was answering questions in a very simple manner without going into too much detail due to her simple way of thinking. The Applicant could only see the hardship and the persecution that she went through during her life in Sudan. The Applicant herself is not a politically active member of the Beja. This relates to her lack of knowledge when it comes to political questions about the Beja activities. The Applicant’s sons, [Child B] and [Child A] are the ones who were actively involved in politics.  The Applicant has become a target for the authorities in Sudan when they failed to locate the two sons. The Applicant was successfully able to determine Bane Amer as the tribe where she comes from.

   -Risk to the applicant. The Applicant’s sons were politically active in Sudan and therefore have become a target for the authorities. The two sons were able to relocate to [Country 1], and since then, the authorities have been intimidating the Applicant to find out their whereabouts.

   -The Applicant’s age. The Applicant is [age] years of age. Directing her to go back to Sudan will put her in a dangerous situation given the unrest in Sudan and her inability to reach safety if needed. Her age also has an impact on her ability to work and earn her living. The Applicant had [Medical Condition 1] in 2015 and still suffers from symptoms today.

   ii.A letter from [Dr I], dated 29 January 2016, regarding the applicant’s medical complaints of [symptoms]; an endoscopy report dated 1 April 2015 regarding a [medical condition]; and a pre-hospital admission form dated 27 March 2015.

   Tribunal Hearing, 18 November 2019

4. The applicant appeared again before the Tribunal on 18 November 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.She applied for her visitor visa to Australia [in] April 2014. She applied for the visa because of the problems she had.  She did her medical checks for the visa application in Khartoum, maybe in September. She departed Sudan about one month after [Child B] was released.

   b.At the time of her visa application she lived in [City 1] with her children [Child E], [Child A], and [Child B].  They were there with her in July 2014.  [Child B] was there but [Child A] was not.  At the time she lodged her visa application her sons were each still living in Sudan.

   c.Her husband died when she was about [age] years old. He passed away suddenly.  He had worked in the [trade].  Their sons are not involved in the [business]. They work in [other] shops.

   d.After her husband died the applicant worked in a [business].  She had very little income but managed with that little to survive.  She received no assistance from her relatives.  When her daughter wanted to study at Khartoum a community representative came to see the applicant and brought donations to contribute to her daughter’s university costs.

   e.She can speak Tigre and Arabic.

   f.She rented her home in [City 1].

   g.She never considered having a career in Sudan. The Beja  community did not allow a woman to work.  They don’t even give women the freedom to think. She believes this is not good or right.  She believes a woman should be able to finish her education and have a role and say in the community.  A long time ago the Beja did not want women to improve but now with the new generation, women like education and working.  It is better for them now because the young generation know women should be educated and have more freedom.  Even young men talk to their fathers about the importance of women having a role in the community and education.

   h.She does not know when [Child B] and [Child A] joined the Beja Congress.  They did so without her knowledge.

   i.The Tribunal put to the applicant that it could find no reports of arrests of members of the Beja Congress in 2014. She responded that it happened because her sons were arrested in 2014.

   j.The authorities did not harm or question [Child E] or [Child D] because they had no active political activity or participation. She had the problem because [Child A] and [Child B] are her children.  She did not have political activities or take part in politics but the problem was for her because she is the mother of children who did. If they tortured her they would be able to get her children.

   k.She did not receive any treatment in hospital. She was just given painkillers. She had been beaten. Her scarf was pulled.  She had bruises all over her body.  They even beat her on her [Body Part 1] and she was in pain all over her body.  She was in hospital for two days.

   l.After she left hospital she went to Khartoum.  A neighbour assisted her by giving her money for transport by bus.  None of her children accompanied  her to Khartoum.  She only had money for her own travel.  She stayed in Khartoum for one month.

   m.She cannot return to Sudan and live safely with [Child E] and [Child D] because the country is still unstable and not safe.  If she goes back then the authorities will torture her as a way of forcing her other children.

   n.The Tribunal put to the applicant that country information showed there was a new  regime in Sudan, so why would the authorities care about what she had done in 2014.  The applicant responded that the situation was not really different, just an army replaced by another army, there are still are armed groups who kill and rape and there is no president.

   o.The Tribunal asked the applicant why [Child E] and [Child D] cannot keep her safe from violence in Sudan.  She responded that they are unable to protect her, these groups want to attack her in order to bring her other children back to Sudan.

   p.She knows that [Child A] and [Child B] have not returned to Sudan because she speaks with her other children in Sudan.  [Child A] and [Child B] are in [City 2] in [Country 1].

   q.The Tribunal put to the applicant that the country information indicated that members of the Beja Congress are openly active in Sudan, and that the Beja Congress leaders have been part of the current transitional process in Sudan.  The applicant responded that this is all in the news but it is not the reality of what is happening on the ground. The situation inside Sudan is still the same.  She knows this because when she talks with her children they tell her the situation is still the same.  If the country was safe her sons would return.

   r.The Tribunal asked why there are no available reports about the problems she refers to.  The applicant responded that there is no media coverage.

   s.The Tribunal asked the applicant why the Beja Congress did not report on problems for it and its members. The applicant responded that when the Beja Congress started,  the authorities turned against them and attacked them.  People were killed and displaced like her children and some were imprisoned, so they are afraid to talk.

   t.The Tribunal asked her about the witness statements she had previously submitted to the Tribunal. The applicant responded that she had called her daughter and asked her about these.  Her daughter told her the statements are all in her handwriting because all the people are illiterate.  The Tribunal put to the applicant that she had previously stated her sons had attended college in Port Sudan, so it seemed unlikely they were illiterate. The applicant did not provide a response.

   Post-Hearing Submission, 6 December 2019

5. On 6 December 2019 the applicant’s Agent provided the further following written information to the Tribunal:

   i.A written submission outlining the following:

   The difficulties the applicant faces in Sudan as a female and a widow, arising from women being viewed as second-class citizens deprived of their rights, including inheritance rights on the death of their husband. This results in widows becoming dependant on their deceased husband’s family. Widows can be evicted from their home and find themselves with nothing.

   It is hard for females to find work and support their families once their husbands pass away, they are expected to be aided from their families or from their husbands’ families. However due to the regressive economic status in Sudan, most families have financial burdens and they cannot bear the burden or be responsible for another family.

   Widows in Sudan can be extremely vulnerable to intimidation, violence, abuse or even repudiation by society, and daughters raised by widows in Sudan may be subjected to discrimination and unfair treatment because of their widow mother’s status.

   Due to cultural beliefs, the Applicant had to leave school to get married and care for her family.  Since her husband passed away in 1990 she worked hard against the customs and traditions in Sudan as a female widow.

   A Beja person may find it hard to find a job. The applicant only worked with Beja business owners in [various] shops.

   The Applicant was subject to violence from the authorities in relation to her politically active sons, [Child B] and [Child A].  She fears for her life in Sudan due to the continuous raids from the authorities looking for her sons.   As a result of one of those raids, she was taken to hospital for treatment and remained in hospital for a few days.  She believes that the authorities will keep raiding her home until they find information about her sons.

   For many decades Sudan was ruled as a dictatorship regime and repressed.  Media reports were limited and available information about persecution or discrimination was scarce. Anyone seen to rebel or report against the government regime was arrested or persecuted and this was widely reported on for many decades.

   The previous government regime’s strict ruling is a reason for lack of reporting on incidents related to the Beja community.  When the Beja Congress was formed, many Beja members were arrested, tortured and even killed for asking for their rights. Although a formal peace treaty was signed, the actual persecution suffered by members of the Beja community did not stop. Members of the Beja congress started working undercover, as did the Applicant’s sons, so as not to get themselves arrested or killed.

   People who are truly persecuted in many circumstances do not have written evidence to confirm their claims. The perpetrators and the government will not issue any documents to be used against them. In this particular case, the perpetrators are members of the authorities, hence confirming the claims with evidence is even more impossible.

   In these circumstances, where the government is prohibiting free journalism and the country has been ruled as a dictatorship for many years, to the point where a revolution was needed to oust the government and the perpetrators are the government, lack of evidence is expected and can be anticipated.

   The Applicant gave comprehensive and consistent evidence in her two hearings of the persecution she suffered as a Beja woman, with her sons being of interest to the government.

   The Beja community is one of the older, minority communities in Sudan. There is a great deal of culture and traditions that the Beja people follow. According to these customs and traditions, males were awarded responsibility to look after everything for the family. The male would take control of everything in the home. The female on the other hand will look after the home and bring up the children. The female would also help and assist the male with his needs.  Therefore, to be living as a widow in Sudan would make the Applicant without a male supporter.  Living alone would be dangerous for her and she would be vulnerable and defenceless.

   Beja females can be subjected to many difficulties as follows

   ·lack of freedom

   ·not allowed to make personal choices in their lives, such as choice of clothes, belief and careers.

   ·deprivation of basic rights in life such as where to live, who to get married to and education.

   The report referring to violent incidents targeting the Beja community, dated 30 November 2019, points to the continuous Beja issues that has been going on for decades.  A spokesperson for the Sudan transitional government admits the tribal problems and indicates that it will take time to resolve.  This indicates that recent incidents still occur to the Beja community and the persecution has not stopped.

   Recently and due to the unrest in Sudan, the tribes started armed clashes between each other. The Applicant is a member for a tribe called Bani Amer, as she indicated in the hearing.  In June 2019, 30 people were killed due to the armed clashes between the Bani Amer and the Nuba tribes in Sudan.

   In late August 2019 dozens of people were shot due to tribal clashes between the Nuba and Bani Amer.

   This is evidence that there are still armed clashes between the Applicant’s tribe and others.  The Applicant is an elderly lady and these kinds of armed clashed will put her life at risk should she be directed to go back to Sudan.

   Compassionate circumstances - There are also compassionate reasons for the Applicant to remain in Australia:

   ·    Her medical condition

   ·    Her age

   ·    Her family composition

   ·    Her family in Australia

   ·    Current Unrest in Sudan and the Applicant’s personal circumstances

   The applicant has a medical condition in her [Body Part 1]. She had [Medical Condition 1] in 2015 and still suffers from symptoms today. She is around [age] years old and a widow since 1990. Both of her sons had to flee persecution in Sudan. Her daughter in Sudan is unable to care for the Applicant as she will not place her daughter’s life at risk by staying with her.

   The Applicant’s stay in Australia helps the Applicant and her Australian daughter’s family.  The second youngest grandson of the Applicant, whose mother is here in Australia, has a disability. The Applicant has been providing great assistance to [Child C]’s family with the child. [Child C] has [number of] children in total and the Applicant’s assistance with the children is of great importance for her.

   The Applicant is [age] years of age. Directing her to go back to Sudan will put her in a dangerous situation given the unrest in Sudan and her inability to reach safety if needed. Her age also has an impact on her ability to work and earn her living. The Applicant is currently cared for by her daughter in Sydney who provides her with financial and emotional support.

   Given the fact that the applicant is Beja and the current situation in Sudan that puts pressure on the Sudanese people, and the recent evidence submitted of incidents occurring to members of the Beja community, she would be in a dangerous situation and at foreseeable risk of harm should she be directed to return to Sudan.

   Should the Applicant fail the refugee definition test, the Tribunal should take into consideration the Applicant’s right to be considered under the complimentary protection scheme. This is due to the significant harm which the Applicant would personally face should she be directed back to Sudan in its current political and civil unrest.

   ii.A newspaper article dated 23 August 2019, entitled “One dead, dozens injured in Port Sudan Tribal fighting”. The article refers to the fighting between Beni Amer tribesmen and displaced Nuba from South Kordofan, with no knowledge of what triggered the clashes.  In response Sudan’s newly established Sovereign Council sent a delegation to Port Sudan, “consisting of legal advisor and member of the Sovereign Council, Hasan Sheikh, along with the Chief of Staff of the Ground Forces, the Deputy Director of the Security Service and the Chief of Police”, “the governor of Red Sea state ordered a curfew in the area”. It was reported that “[a]fter a meeting with the delegation, both sides agreed on a truce until September 8, the formation of an investigation committee, and compensation for the losses.”

   iii.A newspaper article dated 13 June 2019, entitled “Sudanese fear growing violence in east of country caused by security vacuum”.  The article contains the following:

   Clashes have flared in several regions of the country, particularly in the already-fragile and troubled regions of eastern Sudan and Darfur.  Eastern Sudan has witnessed escalating tribal clashes that have led to the killing of more than 30 people in recent days, medical sources have told Middle East Eye. “More than 30 people were killed in tribal and criminal clashes in Port Sudan last week,” a source said.

   The clashes that erupted between the Beni Amir and the Nuba tribes began in Port Sudan last week and spread to the cities of Khashm el-Girba and Kassala in Sudan’s east. …

   Osama al-Amin, an eyewitness in Port Sudan, told MEE: “Gangs suddenly attacked Port Sudan’s central market on the morning of 5 June, looting the small shops and robbing people. “They were confronted by the police, which led to the injury of many innocent citizens,” he added.  “We don’t know where they came from and how they organised themselves to attack the people aggressively like they did, but there are rumours in the city that they have been released from the prison on that day without clear reasons,” another citizen of Port Sudan, Ahmed al-Tahir, told MEE.

   “The criminals have fled to residential areas that are mainly inhabited by the Beni Amir, which provoked the Beni, leading to the injury of some people from the Nuba. Then the crisis erupted.”  

   Police dispersed the rioters, the sources said, before they began looting property in residential areas.  The eyewitnesses added that security in the city is deteriorating and tribal clashes have erupted in turn.

   iv.A further statement from the applicant’s daughter [Child E] which includes the following:

   My name is [Child E]. I was born in the city of [City 1]. I completed my primary and secondary school education in the city of [City 4]. Upon completion of my secondary school, I applied for university. I was admitted to [University 2].

   I graduated from university in 2011, after facing several issues during my university study.  After graduation, I have not been employed until this day. I am without a job now.

   All of that was not easy to achieve. We have to overcome all of the obstacles and sufferings imposed upon us by the government frequently and at various times.
   That is because the government is averse to women education. Women rights are usurped from them.

   My original wish was to study at the faculty of [Discipline 3], but I was not admitted to the faculty of [Discipline 3], and the reason for that was the government too.

   My father passed away when we were children. My mother suffered to raise us and she strived to provide for us the daily bread.

   On top of all of these troubles, government officials frequently come to our house asking about my mother, brothers [Child B] and [Child A]. This is causing us psychological disruption from which we suffer every day.

   Post-Hearing Submission, 31 December 2019

1. On 31 December 2019 the applicant’s Agent provided the further following written information to the Tribunal:

   i.Medical reports and letters with respect to the applicant’s grandson in Australia.  the reports refer to him being [age] years old and living with [Medical Condition 2].

   ii.A written statement by the applicant’s daughter in Australia, [Child C]. In her statement she writes the following:

   She attended primary school up to year 8 and then high school in [City 1]. She received good grades, sufficient to allow her to study an [Discipline 4] degree but due to bad treatment from the government she was not awarded what she deserved. She applied to university but there was delay and she did not receive her papers. She eventually learned her application was refused. She asked why and was told the university had a limited student take-in and she should apply again the following year.  She applied the following year but was refused and advised the university had no place for “older qualifications”. 

   She then successfully applied to [Institute 2] and obtained a [qualification]. She received low marks which did not reflect her actual results. The low marks awarded meant she did not qualify for a Bachelor degree. 

   Schools in Sudan receive government subsidies for materials and food but Beja schools received very little. 

   She married in 2007 and came to Australia then. She initially helped her family a little financially. She has limited income to be able to continue to assist her family further in Sudan.

   iii.A written statement by the applicant. In her statement she writes the following:

   She attended primary school but could not continue her studies because of financial difficulties. Her husband passed away in 2009 and did not leave her any money. He had not been granted a trades licence.   The applicant suffered a lot to  be able to earn a living for herself and her children. She found work in a [business]. She worked long hours but did not earn enough for their lives to be secure. She suffered from the way Beja community perceived her. It is against Beja culture for women, especially widows, to work.  She did not give up despite the pressure and harassment.

   Her daughter married and moved to Australia in 2007. She was able to financially help the applicant to a minimal degree.

   The applicant’s children were members of the Beja council and demanded rights for the Beja.  Her son [Child B] was jailed causing the applicant a lot of sadness and depression.  Her son [Child A] fled for his life. When [Child B] was released she saw signs of torture on him and became more depressed. When her daughter [Child C] became aware of this she tried to get the applicant to come to Australia in 2014.

   The applicant’s return to Sudan would put her life at risk. 

   [Child C] needs the applicant in Australia to help with her young son who has a disability. He needs help with things such as eating drinking and taking his medication. He only wants the applicant to help him. She sometimes takes him to his doctor’s appointments. He cries when he can’t see the applicant. [Child C] has [other] children between the ages of [age] and [age].

   Country Information

   Beja people

2. According to a 2013 report by the International Crisis Group:

   Eastern Sudan’s population is approximately six million, at least half Beja, a confederation of non-Arab peoples. The Beja include the Hadendowa, the largest tribe (approximately 600,000, some of whom also live in Eritrea); the Amar’ar, primarily in the Red Sea State; the Beni Amer, divided between Sudan and Eritrea; and the Bi- shariyyn, divided between Sudan and Egypt. All speak TuBedawiye (from the Cushitic linguistic group) except the Beni Amer, who speak Tigre, a Semitic language, and are often considered a distinct ethnic group.[2]

   [2] International Crisis Group, ‘Sudan Preserving Peace in the East’, 26 November 2013.

3. The Global Security website includes these details about the Beja:

   The Beja of eastern Sudan have been neglected by central governments for decades, leaving them vulnerable to malnutrition, famine and disease. The nomadic pattern of the Beja, which necessitate a continuously mobile pattern of living characterized by the non-existence of permanent settlement forms - in most cases, has had its clear implications and consequences, historically, on the development of this ethnic group and that of the area they inhabit. This lifestyle has led to an underdevelopment of adequate infrastructural services such as health, education, . . . etc. This state continuously maintained by environmental pressures necessitating migrations in search of water, pasture, and farming lands, the aspect that put the Beja in a historical dialectic and a vicious circle of poverty, underdevelopment, and high vulnerability to external environmental elements.

   The present suffering of the Beja people is a result of a long process of deprivation and marginalization which has characterized the contemporary history of this group. This has been mainly due to successive mal-policies adopted by the various governments in Sudan which have neglected and overlooked the existence of the Beja, and possible negative impacts and adverse effects of these policies on their survival. Such policies include taking of vast grazing areas and their conversion into agricultural schemes, forcing the people to move with their animals into poor grazing land, mostly mountainous, areas of the Red Sea coast.

   The Gash and Tokar agricultural schemes stand as a conspicuous example for such depriving policies. Both schemes had taken land which was vital for the Beja in terms of resources and pattern of their economic activity. These areas used to provide the Beja with good pasture land and water for their livestock in their seasonal migration from East to West. Other plantation schemes in the Eastern region as a whole have also sprung up using intensive mechanization and taking large areas which were once a resort for the nomads and their animals. The horticultural gardens occupy all the land around the Gash river. The remaining areas, resource poor as they were, have also been used for building of roads such as the roads connecting the capital Khartoum with Port Sudan, coupled with the recent ongoing war and the economic decline nationwide, have aggravated the situation even more.

   Thus, the end result is a loss of wealth and impoverishment of the Beja people as well as accelerating environmental degradation and desertification. Both the land and its people have suffered tremendously from such mal-policies adopted by the different groups that have come to power in the contemporary Sudan.

   Some studies carried out in the area described a previous situation where animals were traded for sorghum and other consumer goods, and agriculture was also practiced along the seasonal wadies and khores. This practice no longer exist, the loss of natural pasture land combined with the drying-up of wells in the area, and the resent droughts have all led to the loss of livestock and the decrease of nomadism in the area. Accordingly, the area witnessed a large influx of rural people into the urban centers especially during the famine years of 1984, 85, 90, 93 and 1996. Large scattered settlements started to emerge around these urban centers indicating the magnitude of poverty and displacement that have since taken place within the Beja. Poverty, disease, hunger, illiteracy have all been permanent and persistent phenomenon and is characteristic of the Beja life during the last years.[3]

   Pre-2019 regime change

   [3] Global Security website, ‘Beja Congress’, >

   According to DFAT’s 2016 ‘Sudan Country Information Report’:

   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.[4]

   [4] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Sudan’, 27 April 2016.

4. The UK Home Office reported in 2007 that

   The Beja region has been devastated by spillover effects from the North-South conflict and the presence of refugees from Eritrea and Ethiopia. Over a quarter of a million southern­ers moved into the area to escape fighting, cutting down trees and over-exploiting water resources. When the SPLM opened a second front against the Khartoum regime in eastern Sudan, over 300,000 Beja were displaced as fighting flared and now live in urban shanties in Port Sudan and Kassala.” (FMR – Beja Sidelined by Peace Process, Issue 47, November 2005). …

   In January 2005 Beja demonstrators in Port Sudan presented the governor of Red Sea State with a list of demands for an equal share of power, wealth and resources. Their protest was met with brutal force and 40 demon­strators were killed. The Sudanese government justified the killings by falsely claiming that the Beja were threatening oil exports. Amnesty International’s calls for the govern­ment to set up an independent commission of inquiry and to release Beja Congress representatives have gone unheeded. While the UN inves­tigates atrocities in Darfur and the death of Lebanon’s president, they do nothing to bring perpetrators of anti-Beja violence to justice.” (FMR – Beja Sidelined by Peace Process, Issue 24, November 2005).

   The ICG Report of June 2003 also recorded that: “Decades of negligence of their community, under both democratic and autocratic governments, has left the Beja highly vulnerable to malnutrition, famine and contagious disease.”  A January 2006 Report by the same organisation noted that: “The East, like other mostly rural parts of the country, has received only paltry government investments for education, health and other services. The highly centralised nature of government in Sudan gives federal authorities a near monopoly on revenue collection and control over both how much money is distributed to the states and how it is used.”[5]

   [5] UK Home Office, ‘Country of Origin Information Report SUDAN’, 18 January 2007.

5. According to the US Department of State 2007 Country Report on Human Rights Practices:

   On August 26 [2005], security forces arrested Shaiba Dirar, a leader of the Beja Congress, after a political debate he had organized at the local Beja Congress club. Dirar, who was released three days later, reported that he was tortured with electricity while in detention.

   Prior to the October 2006 peace agreement signed by the government and the Eastern Front, supporters and members of the Eastern Front, a rebel group comprising the Rashaida Free Lions, Beja Congress, and JEM faced increased restrictions on their movement throughout the eastern part of the country, and internationally.[6]

   [6] US Department of State, ‘Sudan- Country Reports on Human Rights Practices Mar 2007’, 11 March 2007, 20140924170815, 2; 9.

6. The 2010 UK Home Office ‘Country of Origin Information Report – Sudan’ reported that:

   The HRW report The Way Forward: Ending Human Rights Abuses and Repression across Sudan (October 2009) also noted that: “In May 2009, NISS officials arrested a student for making a speech at Khartoum University about the Merowe dam, and arrested student members of the Beja Congress Party in Kassala and detained them without charge for a week.”[7]

   [7] UK Home Office, ‘Country of Origin Information Report – Sudan’, 16 April 2010.

7. A 2012 paper from the Carnegie Endowment for International Peace states:

   With high-profile conflict in Darfur and along the border between Sudan and South Sudan, the Red Sea, Kassala, and Al-Qadarif States of eastern Sudan have received little to no attention, despite extremely low humanitarian indexes, serious food security challenges, and drought.  While the eastern states are significantly rich in resources (they boast fertile agricultural zones, grazing areas, and minerals like gold, oil, and natural gas), the indigenous Beja and Rashaida tribes within these states rarely enjoy the region’s wealth, which, instead, serves to benefit elites in Khartoum.

   Although fighters from the Eastern Front (an alliance of the Beja Congress, an ethnic political group incorporating the Beja people, and the Rashaida Free Lions, an armed group of Rashaida) signed the Eastern Sudan Peace Agreement [ESPA] with the Sudanese government to end their rebellion in 2006, since the secession of the South, the Beja and Rashaida have taken to the streets to express their dissatisfaction with the government and its failure to respect all terms of the agreement. The non-Arab Beja in particular contend that the agreement does little to remedy the continued marginalization of their tribe. Beja fighters have reportedly regrouped in the Hamid mountains, just across the Eritrean border, from where they launch attacks on Sudanese forces. Furthermore, in November 2011, the Beja Congress voiced its dissatisfaction by joining the Sudanese Revolutionary Front, a coalition of opposition and rebel groups that seek to overthrow President Bashir.

   Complicating matters further, the Beja and Rashaida were never fully disarmed after the 2006 peace agreement; coupled with low human development indicators in the region, the presence of loose weapons is bound to significantly contribute to the growing instability. The situation in eastern Sudan is well summed up by UN peacekeepers who have suggested that the conflict is again simmering, much like a “volcano waiting to erupt.”[8]

   [8] Marina Ottaway & Mai El-Sadany, May 2012, “Sudan: From Conflict to Conflict”, Carnegie Papers.

8. The 2013 report by the International Crisis Group states:

   Though the ESPA reaffirmed commitments to “respect and promote human rights and fundamental freedoms as detailed in the post-CPA Interim National Constitution and in international human rights covenants ratified by the Government of Sudan”, violations have continued unabated. Throughout the three eastern states, student, youth, civil society and political activists are reportedly subject to detention, ill-treatment and torture. Public meetings are banned, and any attempt to organise peaceful demonstrations is met with excessive force by security forces that still enjoy almost absolute impunity.

   Moreover, those allegedly responsible for the 29 January 2005 Port Sudan massacre, which claimed 22 lives, mainly Beja, are yet to be held to account. On 30 March 2011, the Red Sea state general prosecutor decided there were no legal grounds for criminal charges against the “regular forces” and dismissed an appeal lodged by victims’ families. Members of victims’ families and their legal representatives were subjected to repeated harassment, including dismissal from work.

   In 2009, victims’ families established the “High Committee for the 29th January Martyrs”, to commemorate the massacre and challenge impunity. Since then, an annual commemoration has been one of the most effective tools in mobilising people against the regime. Students, youth and political activists all take part, calling for justice and regime change. The committee’s members are subjected to security persecution, including detention and alleged torture. Moreover, to further weaken it and sever its links with other political forces, security agencies have allegedly infiltrated the committee and deepened existing divisions between pro- and anti-BC factions. Despite this, the committee remains influential and still attracts thousands to its campaign, especially in Red Sea state.[9]

   [9] International Crisis Group, ‘Sudan Preserving Peace in the East’, 26 November 2013.

9. A 2014 USA House Committee report on Sudan includes the following:

   In the Eastern provinces, Bashir deployed his security services and troops in Port Sudan and along the coasts of the provinces to suppress yet a third ethnic community rejecting his attempts of forced Arabization and land grab, the Beja tribes. …

   Between the Egyptian and Eritrean borders, a band of land forming the East Sudan region with Port Sudan as its local capital is inhabited by the African population known as Beja. This community, part of the African and marginalized segments of the northern Sudan population has also been rebelling against the Islamist regime of Bashir. The Beja, Black Muslims, have formed their own resistance movement but have been under tremendous pressure by government troops who reign in their province. Beja civil society leaders have been accusing Khartoum of ethnic cleansing—eliminating their tribes and replacing them with settlers brought from the center of the country. The Beja population lives under dire economic conditions and its members are deprived of jobs and opportunities in their own regional capital, Port Sudan, the largest maritime outlet of the regime.[10]

   [10] Dr. Walid Phares, Co-Secretary General, Transatlantic Legislative Group on Counter Terrorism

10. A 2014 dissertation includes the following on Eastern Sudan and the Beja:

    The four conflict types constituting the Darfur conflict are also present in Eastern Sudan. First, communal conflict (at a low level of violence) over scarce resources, particularly land, has been ongoing for centuries in the region. Second, local elite conflicts have created severe intra-party difficulties among the rebels. Third, Eastern Sudan is severely marginalized vis-à-vis the center, which creates severe center-periphery conflicts. Fourth, crossborder conflicts, particularly the relation between Sudan and Eritrea, are an integral part of the conflict situation in the region.

    … The largest ethnic group in Eastern Sudan is the Beja. In 1958, the Beja Congress, a political party that promotes the rights of this marginalized group, was formed. The struggle to improve the situation for the impoverished Beja was fought with non-violent means for decades. In 1995, however, the Beja Congress declared armed struggle against the Sudanese government.

    Extensive expropriation of Beja land was a key determinant for this decision. Two other important factors for the existing infuriation among the Beja were that many Beja had been forcefully recruited into the army and that in April 1990 more than 200 men (two thirds of whom were Beja) were killed extrajudicially because of their assumed involvement in an alleged coup plot. When the Beja Congress took up arms it was done as part of the National Democratic Alliance (NDA), an antigovernment umbrella organization under the command of SPLM/A leader John Garang, that it had joined in 1993.

    …  The military activities of the Beja Congress started in 1996 when it attacked numerous bridges and government military training camps. Under the NDA banner, the Beja Congress, together with the SPLM/A and some other smaller groups, repeatedly tried to shut down Port Sudan. These attempts failed, but in 1997 the rebels succeeded in gaining control of large parts of the areas of Eastern Sudan that bordered Eritrea. The armed rebellion in the east constituted a new front in the Sudanese civil war, which previously had been fought in southern Sudan (and some border areas between the south and the north).

    …  The fighting in Eastern Sudan peaked in 2000 when the oil pipeline and several army outposts were attacked. The government, however, mobilized impressive military strength. This enabled it to generally keep the fighting close to the Eritrean border, which prevented major damage to economically vital interests such as the pipeline, Port Sudan, and mechanized farming. The NDA rebellion continued until 2001 and caused more than 3 000 battle-related deaths. At that time, the power of the NDA had declined because of increased internal problems as well as decreased support from Eritrea.

    In 2003, the Beja Congress restarted its military action because it was excluded from negotiations between the SPLM/A and the government. The following year, the Beja Congress signed a memorandum of understanding with the Darfurian rebel group JEM… . Although the military presence of JEM was rather limited, the group was important for the military capabilities of the Beja Congress. Two years after it had resumed its rebellion, the Beja Congress merged with the Rashaida Free Lions, a rebel group formed in 1999.

    The Rashaida is a tribe inhabiting both sides of the Eritrean–Sudanese border. Depletion of natural resources and destruction of roads for pastoralists were the main grievances for the Rashaida. Together with some smaller groups from the Shukriya and Dabaina communities, the Beja Congress and the Rashaida Free Lions formed a united movement called the Eastern Front. This group demanded that Sudan should be governed through federalism to empower the different regions of the country. Moreover, it held strong land grievances and wanted to strengthen Easterners control over land in the region. The Eastern Front carried out some hit-and-run attacks, but the opportunities for the rebels were limited due to the government’s heavy security presence in the region.

    After a few years of low-intensity rebellion, the fighting ceased due to the signing of the Eastern Sudan Peace Agreement (ESPA) in October 2006. The agreement was negotiated by the Eritrean government, …, and the agreement is generally viewed as an accord between Asmara and Khartoum rather than between Eastern Sudan and the Sudanese government..[11]

    [11] Brosché J, 2014, ‘Masters of War - The Role of Elites in Sudan’s Communal Conflicts’,  type="1">

    A 2014 news article reports:

    On Thursday evening, pro-government and opposition parties participated in a meeting of the National Dialogue Committee, known as “7+7”. During the meeting, chaired by President Omar Al Bashir, the participating opposition parties took the opportunity to stress the need to allow more freedoms in the country.

    ... The National Dialogue Committee meeting on Thursday was attended Dr Ibrahim Ghandour, representing the NCP; Dr Tijani Sese, leader of the Darfuri Liberation and Justice Movement; Ahmed Saad Omar, for the Democratic Unionist Party (DUP); Jalal El Digeir, for the DUP-Democracy faction; Musa Mohamed Ahmed, representative of the Beja Congress; Ahmed Babikr Nahar of the Federal Umma Party, and Aboud Jaber, for the National Unity parties.[12] [emphasis added]

    [12] Dabanga news website, 2014, “Sudan opposition demands freedoms in National Dialogue meeting”, 12 December, >

    A December 2014 news article states:

    The leader of Beja Congress, Musa Mohamed Ahmed, called on the ruling National Congress Party (NCP) to postpone general elections scheduled for April 2015 and to focus on ways to reach a comprehensive agreement on a permanent constitution. … Ahmed who is also a presidential assistant told the members of his party in El Gadaref it is important to hold a national dialogue adding it would be an opportunity for the Sudanese to reach a consensus accommodating all the political forces.

    … The Beja Congress have participated in the NCP-led government since the signing of the Eastern Sudan Peace Agreement on 14 October 2006. Ahmed himself is a member of the national dialogue committee.[13]

    [13] 2014 Sudan Tribune, 2014,  “Beja Congress joins calls to postpone Sudan elections”, 14 December, >

    In October 2014 Dabanga news reported:

    The Eastern Front leadership has demanded the dismissal of several Front leaders, including Sudan's first Vice-President, the Presidential Assistant, and several State Ministers in a memorandum. The Front's demobilised forces stated to have withdrawn their trust from the leaders.  These are Lt. Col. Bakri Hassan Saleh (first Vice-President), Musa Mohamed Ahmed, (presidential assistant), Mabrouk Mubarak Salim (State Minister of Animal Resources), and Amna Dirar (State Minister of Human Resources).

    Omar Hashem, the spokesman for the alliance of eastern Sudanese opposition groups, told Radio Dabanga that they raised the memorandum against the backdrop of the disregard of these leaders for the concerns of the Front's members. “These leaders are running behind their own interests. They represent only themselves,” he said. Hashem, also chairman of the Eastern Front committee in Red Sea state, announced campaigns last month to withdraw confidence from the leaders.

    Hashem added that the memorandum further called for a consultative conference to evaluate the Eastern Sudan Peace Agreement (ESPA). It also demanded the formation of a group of the demobilised forces to review the Eastern Sudan Reconstruction and Development Fund and the security arrangements. The Eastern Front, including the Beja Congress, signed the ESPA with the Sudanese government in October 2006. The ESPA stipulates the integration of former Beja Congress fighters into civil and military services. As a result, three Eastern Front leaders were appointed as Assistant to the President.[14]

    [14] Dabanga News, 2014, 'Sudan Eastern Front to dismiss leaders': spokesman, 3 October,

    A 2015 inter-Government initiated report stated:

    There are currently voices in the Beja Congress calling once more for self-determination and, now, the secession of Eastern Sudan. Although an outbreak of armed conflict in the region is relatively unlikely given the good relations between Asmara and Khartoum, small arms are widespread and some of the forces in the region are likely to join armed resistance in other parts of Sudan. As long as the marginalization that led to the rebellion in Eastern Sudan remains, so does the possibility of renewed forms of armed resistance.[15]

    [15] Small Arms Survey, May 2015, “Development Deferred: Eastern Sudan after the ESPA”

    An August 2015 detailed report from the ‘Waging Peace organisation contains the following:

    The Beja are ethnically non-Arab people consisting of the Hadendowa, the Amar’ar, the Beni-Amer, and the Bishariyyn tribes….  The Beja Congress formed in 1958 and became a political party in 1965. They called for a “fairer distribution of resources” and “devolution of power to all regions”. Over subsequent decades, the Beja Congress lacked adequate representation in government. They were banned, along with all other political parties, during the 1958 military coup and, again, in 1989 after the National Islamic Front coup which brought the current regime to power.

    ...

    Eastern Sudan has received less attention from the media, decision-makers and researchers than Sudan’s other regions, despite serious and deteriorating humanitarian conditions. There is sparse information on the region in comparison to other parts of Sudan. However, as the recent International Crisis Group report shows, the situation in Sudan has not improved in ten years. Dr. AbuAmna, a Beja leader and human rights activist, has stated to this author:

    “…the most basic right is the right to live. For this, one needs food, water, healthy environment and shelter. In eastern Sudan, even these basic rights are not available. The people live under constant famine conditions without enough food, water, education, and community health. The morbidity and mortality rates are the highest in the country, probably in the whole world.”

    The Beja people believe they have been continually marginalised and oppressed by the government in Sudan. They are considered a minority community at risk by Minority Rights Group International; Sudan ranks second of the 70 countries where minorities are considered under threat. The Beja maintain this marginalisation takes the form of a policy of “Arabisation” by the Sudanese regime. Beja people have reported suppression of the Beja language with complete lack of television, books, or radio in the Beja language. The government also prohibits the Beja Club, a local place for Beja people to meet, from keeping books written in the Beja language.

    The Beja people have reported discrimination in matters of employment, for instance, at the harbor in Port Sudan. They report that workers are brought in from Khartoum and given higher wages than Beja employees. Unemployed Beja receive no government assistance, living in slums where the walls of their “homes” are constructed of wood fragments and fabric. There is also the issue of illegal land occupation: the Beja claim they are losing their land to “mechanised agricultural schemes”, disrupting their livelihoods and pushing them to urban slums in Port Sudan.

    Politically, as discussed above, the Beja Congress Party has lacked adequate representation in government and has been twice banned. Per the ESPA, Sudan’s President Bashir appointed eastern Sudanese and Beja Congress members to roles in government. However, following the 2010 national elections, few of these appointees remained in their positions. The government’s failure to implement the ESPA, even eight years later, was foreseen by different Beja peoples at the ESPA’s inception. In 2006, they believed the regime would not implement the ESPA and they felt the situation in eastern Sudan would not improve. Recent dissatisfaction resulted in a protest by Beja Congress fighters at the National Congress Party’s (“NCP”) headquarters. With the intervention of mediators eight hours into the protest, it was agreed a meeting about implementation would take place on August 25, 2014.

    In recent years, President Bashir’s NCP has mirrored the divide-and-rule tactics it employs in Darfur and elsewhere in Sudan, establishing tribal militias, and increasing support to Arab tribes whilst ignoring others. The government has encouraged the Rashaida peoples’ settlement in Beja territory, which Beja peoples see as part of NCP’s policy to “Arabise” their region. ….  Dr. AbuAmna contends that the Beja people are being killed by the government’s security forces through the use of land mines and “by leaving [Beja people] alone to face famines, natural disasters, diseases, and extinction.”

    There has been neither compensation nor justice following the massacre in Port Sudan. Victims’ families appealed a 2011 decision by the state general prosecutor who found no grounds for criminal charges, but their appeal was dismissed. Moreover, the victims’ families have been subject to harassment and their legal representatives have been dismissed from work. In 2009, the victims’ families established a committee commemorating those killed at Port Sudan in 2005. However, the committee members have been subject to detention and torture. Further they believe security agencies have infiltrated the group to sow division between pro-Beja Congress and anti-Beja Congress factions.

    Recent Concerns

    Beja people remain greatly disappointed by the lack of ESPA implementation, compounded by the eastern Sudan poverty rate; the country’s highest. Young people in Kassala state have little access to education or employment. In January 2012, six members of a student-led movement called Girifna, were arrested after taking part in a public forum to commemorate the massacre at Port Sudan. They were detained without charge and without access to lawyers until their release in February. One of the students was reportedly tortured and ill-treated. Other arrests include that of Beja Congress Party leaders during a 2013 march to commemorate the Port Sudan massacre and the arrests of students in 2014 for protests demanding the release of political prisoners.

    … Access to human rights monitoring and humanitarian aid has been severely restricted due to the Sudanese government’s ban of several foreign aid organisations from operating in eastern Sudan.

    Eastern Sudan is suffering from a significant but under-reported humanitarian crisis. When an International Rescue Committee programme coordinator for east Sudan visited the country in 2005, he remarked it was “the most under-served, most remote area that I have ever worked in, with huge humanitarian needs—even in basic issues of nutrition and safe water, up to more complex health and education needs”. This situation continues to this day. …

    International humanitarian aid experts have been prohibited from accessing the region. The government has prevented regional funds getting loans on the grounds that usury is illegal under Islamic law. Malnutrition and the infant mortality rate are notably high in the region and have been so for many years. Hospitals are few and far between and the large, poor population has neither the money to access the hospitals that do exist, nor the money to pay for services.

    …  Beja continue to be marginalised and oppressed by the government. The population lives in great poverty with substandard health facilities. With the dismantling of the Eastern Front in 2011, the Beja Congress joining the Sudan Revolutionary Front, and the failure of the regime to fulfill its commitments under the ESPA conditions, the situation in eastern Sudan is likely to deteriorate further. It is possible fresh conflict will erupt as these new factions coordinate their activities. This could have a knock-on effect on the rest of Sudan and the wider region. [16]

    [16] Sanders L H, 2015, ‘Beja People And Beja Congress: Human Rights Concerns In Eastern Sudan’, August, (Waging Peace organisation).

    In June 2018, Minority Rights Group International reported that:

    Overall, the east remains one of the poorest areas of Sudan, with illiteracy rates running between 50 and 90 per cent. Local leaders have long expressed their concerns that the government deliberately neglected the east and its mainly non-Arabic-speaking people through a shortage of public services, lack of schools and health care, and a dismal job market.[17]

    Post-2019 regime change

    [17] Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples – Sudan: Beja’, June 2018, >

    The October 2019 ICG report, ‘Keeping Sudan’s Transition on Track’, refers to obstacles to the successful transition to democratic government:

    …  major obstacles lie ahead. The settlement outlined in the 17 August document is fragile and needs careful nurturing in the face of several linked challenges. First, [newly appointed Prime Minister] Hamdok and his cabinet inherit an economy in deep distress. They have prioritised its revival, but in pursuing reforms they ultimately need to fundamentally reorder a rentier system that privileges both the generals with whom they now share power and Bashir’s former cronies. Second, Sudan’s gen­erals only signed the power-sharing agreement under intense external pressure. They could still play spoiler during the transition if they choose to challenge new reforms they see as threatening their political and business interests. Third, armed groups from Sudan’s long-marginalised peripheries have not endorsed the deal. Securing a comprehensive peace agreement to end Sudan’s long-run­ning internal wars will be a key priority, not least because these groups’ leaders could be co-opted by the security forces and work to derail the transition.

    The ACAPS organisation currently lists Sudan as one of the six countries in the world with the ‘highest level of severity’ for a ‘crisis in sight’.[18]  It also noted in a June 2019 report that violent incidents have been increasing across Sudan and included ‘intensified inter-communal and/or armed group violence in eastern Sudan’.[19]  In its mid-2019 quarterly risk analysis it provided the following detail:

    After President Al-Bashir was ousted in April 2019 a transitional military government (Transitional Military Council or TMC) was installed. Many TMC members, including the new Vice President, are aligned to the Bashir regime and are guilty of committing human rights violations during the conflict in Darfur in the early 2000s. This is exacerbating anger and frustration among civilians who have been protesting  …. Dialogue between the TMC and opposition alliance Force for Freedom and Change (FFC) to ensure a transition to civilian government is not progressing and protests have been dispersed with increasing violence. On 3 June, peaceful sit-ins were violently dispersed countrywide by the Rapid Sudanese Forces (RSF), leaving around 118 people dead and at least 780 injured. …

    Following recent escalation in Khartoum, increased violence and inter-communal fighting between civilians, armed groups and security forces has been observed countrywide. … With reduced government influence, armed groups in these regions are likely to take advantage of the volatile security situation and reassert their position through increased use of violence.

    Protection concerns, especially for opposition-group members and activists affiliated with protests, are very high. With an established autocratic military rule, arbitrary arrests and human rights violations are very likely to increase. Waves of displacement including highly skilled personnel to neighbouring countries, particularly South Sudan, are anticipated.

    A minimum of 8 million people already rely on humanitarian assistance. Access to health services are at highest risk, as health facilities face severe shortages of medicines and medical supplies, and hospitals treating wounded protestors have been targeted by security forces.

    The economic situation is very likely to worsen amid the unpredictable political and security situation. The TMC has limited capacity and anticipated low commitment to deal with rising prices for basic commodities. With the start of the lean season (May to September) food prices are 280-320% higher than the five-year average. …

    Humanitarian access overall will deteriorate due to the unpredictable security situation, a government with neither the capacity nor commitment to respond to humanitarian needs, and potentially new limitations to operate in Sudan. People living in conflict-affected areas, as well as increased numbers of IDPs, are expected to face high constraints to access basic services and humanitarian aid.[20]

    [18] align="left">[19] ACAPS, 2019, “Escalation of Violence in Sudan”, 17 June,  

    [20] ACAPS, 2019, ‘Crisis Insight - Quarterly Risk Analysis - June 2019’.

    The latest ‘2019 Peoples Under Threat’ report from Minority Rights Group International continues to list the Beja of Sudan as one of the peoples “most under threat” in the world.

    A June 2019 news article reported on tribal clashes and riots involving Beja tribes in East Sudan, following the ousting of President Bashir:

    Eastern Sudan has witnessed escalating tribal clashes that have led to the killing of more than 30 people in recent days, medical sources have told Middle East Eye. “More than 30 people were killed in tribal and criminal clashes in Port Sudan last week,” a source said. The clashes that erupted between the Beni Amir and the Nuba tribes began in Port Sudan last week and spread to the cities of Khashm el-Girba and Kassala in Sudan’s east.

    Fagiri Abdullah Fagiri, a prominent activist in eastern Sudan’s Red Sea state, said the death toll in various kinds of clashes this week has risen to over 30. He added that the violence has sprung up in towns such as Khashm el-Girba, where one person was killed and another wounded, as well as in Kassala state near the border with Eritrea.

    Fagiri told MEE it is widely believed that the Transitional Military Council (TMC), which has run the country since longtime ruler Omar al-Bashir was removed in an 11 April coup, and the agents of the “deep state” allied with it, are responsible for the tribal clashes. According to Fagiri, authorities have released criminal gangs from prisons and allowed them to run riot.

    A Beni Amir tribal leader told MEE that members of his tribe who are in Bashir’s National Congress Party (NCP) are fuelling the crisis. “I saw many members of the former ruling party NCP telling people that the Nuba’s sons in the national army are using their weapons to kill the Beni Amir and we should respond to defend ourselves,” the leader, who wished to remain anonymous, said.[21]

    [21] Middle East Eye, 2019,  “Sudanese fear growing violence in east of country caused by security vacuum” 13 June, >

    In August 2019 the Dabanga news site reported:

    Armed opposition groups in South Kordofan, eastern Sudan, and Darfur have formed the United Sudanese National Congress or the Kush alliance. They signed a joint charter on Tuesday.  The Kush alliance was established by the Sudan People’s Liberation Movement-North faction in South Kordofan under the leadership of Abdelaziz El Hilu, the Corrective Beja Congress headed by Zeinab Kabbashi, and the Sudan Liberation Forces Alliance led by El Tahir Hajar.

    In a statement on Tuesday, chairman Mohamed Hashim described the establishment of “this historic alliance” as an important step to achieve peace and democracy in Sudan.  He announced the signing of a joint charter in which the three movements call for “the formulation of a new national project, based on the recognition of the ethnic, cultural, and religious diversity” in the country. “Citizenship should be the basis of all rights and duties instead of centralisation and marginalisation,” he stated. Hashim called on “all Sudanese progressive democratic forces, marginalised forces, and all those affected by the status quo to join the Kush alliance, and work together to bring about a radical change in the structure of the Sudanese state, and build a nation that is able to serve all”.

    The ruling Transitional Military Council and the Forces for Freedom and Change signed a Political Charter on July 17 that stipulates the way Sudan will be governed during a coming interim period of three years and three months. On Saturday, they agreed on the contents of the Constitutional Declaration that complements the charter.

    The Sudan Revolutionary Front (SRF), a coalition of the Sudan People’s Liberation Movement-North faction led by Malik Agar in Blue Nile state (SPLM-N Agar), the Sudan Liberation Movement faction headed by Minni Minawi (SLM-MM), and the Justice and Equality Movement (JEM), has rejected both documents.[22] [emphasis added]

    [22] Dabanga, 2019, “Three Sudanese armed movements form ‘Kush alliance’”, 6 August.

1. The Women, Peace and Security Index 2019[32] lists Sudan as the tenth worst performing country out of the 167 countries surveyed for autonomy and empowerment of women.  Sudan is ranked third amongst countries with the most extensive legal discrimination against women.

   Widows in Sudan

   [32] Available at:

2. The Department reported in 2006 that

   In accordance with Islamic law, a Muslim woman has the right to hold and dispose of her own property without interference and women are entitled to inheritance from their parents in the north. However, a widow inherits one-eighth of her husband's estate; of the remaining seven-eighths, two-thirds goes to the sons and one-third to the daughters…[33]

   Irrespective of laws obtaining in different parts of Sudan, the reality is that custom dictates land will be held by male family members and against the rights of widows inheriting their late husband’s land.[34]  If a woman is widowed she become the responsibility of her brother-in-law or if he is ‘of age’, her son.[35]  

   [33] US DOS, ‘Country Reports on Human Rights Practices 2005: Sudan’, 8 March 2006.

   [34] ‘Gender Assessment, Sudan: 2003 – 2005’, March 2003; ‘Sudan: Land rights, natural resources tenure and land reform, 2006’.

   [35] Department of Immigration and Multicultural Affairs, ‘Republic of Sudan Background Brief’, 26 July 2006.

3. In its 2018 report the US Department of State stated that:

   Discrimination:  The law, including many traditional legal practices and certain provisions of Islamic jurisprudence as interpreted and applied by the government, discriminates against women.  In accordance with Islamic judicial interpretation, a Muslim widow inherits one-eighth of her husband’s estate; of the remaining seven- eighths, two-thirds goes to the sons and one-third to the daughters.[36]

   [36] US DOS, ‘Country Report on Human Rights Practices for 2018 – Sudan’, 14 March 2019.

4. According to the UK Home Office’s 2012 Country of Origin Information Report – Sudan

   24.01 A report from the Hauser Global Law School Program at New York University’s School of Law, GlobaLex, entitled ‘An Overview of the Sudanese Legal System and Legal Research’, dated January 2007 noted: “Women's community-based groups voice serious concerns with the prevalence of gender-based violence, which is considered to include: Early (forced) marriage of girls; Domestic violence; Rape; Female circumcision; Forced marriages of widows. ... Additional prevailing gender issues include the right to own property; freedom of choice to enter into marriage; payment of dowry – bride wealth; wife inheritance ... [and] ghost marriages.” …

   24.26 The SIGI Report 2011 observed: “Under Sharia law women have inheritance rights. However, the share of women and daughters is generally half than that to which men are entitled. ... Women do not have any rights to inheritance under customary law. In addition, under customary legal practices, on their husband’s death, widows are commonly required to marry another man in the husband’s family.”[37]

   [37] UK Home Office, ‘Country of Origin Information Report – Sudan’, 11 September 2012, >

   In September 2008, the UK Home Office discussed Relief International’s strategies that could improve the well-being of women and girls:

   “RI’s livelihoods program supports women in the development of business plans and with capital to start small enterprise activities, such as crafts and farming cooperatives. These programs are particularly targeted to combating isolation and poverty common in widows and rape victims.[38]

   [38] UK Home Office, ‘Country of Origin Information Report Sudan’,  26 September 2008, 582, 88.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant submitted her Sudanese passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied the applicant is a citizen of Sudan. The Tribunal assesses the applicant’s claims against Sudan as her country of nationality and receiving country.

   Credibility

   Widow

6. The applicant has consistently maintained that her husband died in or around 1990. The Tribunal accepts she is a widow.

   Beja Ethnicity

7. The applicant has consistently maintained she if of  Beja ethnicity from the Beja area of the Red Sea.  Her evidence regarding her life and her knowledge of her culture all support a finding that she is of Beja ethnicity and from [City 1] in the Red Sea State.  The Tribunal therefore accepts these aspects of her claims.

   Beja Congress

8. The applicant’s evidence regarding the problems and harms she suffered because two of her sons joined the Beja Congress was less clear and consistent.

9. There were substantial discrepancies on critical aspects of the claimed events of 2014, both within her own evidence during different stages of the application and review process, and also with that of her witnesses.

10. For example she wrote clearly in her Statutory Declaration lodged with her Protection visa application that her son [Child B] was detained for “six months” and not released until “August 2014”.   However her daughter and sons wrote in their witness statements that [Child B] was detained between February and “April 2014”, a period of only two months. She also wrote in her post-Hearing statement that she applied for her Visitor visa after [Child B] was released from detention. The Tribunal notes her evidence that her Visitor visa application was lodged in April 2014.

11. The applicant also stated that it was in September 2014 that she was beaten by security officers at her home when they were searching for [Child B], and she then needed to got to hospital. However her witnesses, her daughter, sons [Child A] and [Child B], neighbours [Ms G] and [Ms H], each wrote that this occurred at the time [Child B] was arrested, in February 2014.

12. There was also confusion about when it was decided that the applicant should obtain a Visitor visa to Australia, and who initiated the request to her daughter in Australia.

13. The applicant’s evidence about what occurred at her home was somewhat vague and her explanations as to why she was singled out and not any of her other adult children still living in [City 1] was not persuasive.

14. Her evidence that the security officers would go to such violent and persistent efforts to locate her two sons who had left Sudan was also not consistent with the available country information about the level of threat Beja Congress members presented at the time and the nature of the authorities’ actions against the Beja and Beja Congress.

15. Following the second hearing the Tribunal has been able to locate information that the Beja Congress had again become adversarial to the ruling regime following the 2006 peace plan [ESPA]  and that arrests of protesting Beja Congress members occurred as did the authorities’ monitoring and subversion of Beja Congress activities.  However there is no indication that the authorities were harassing and beating people to try to locate Beja Congress members who, being outside the country, were no longer active in the Red Sea area.

16. Because of these concerns the Tribunal does not accept that the authorities came to the applicant’s home and beat her to try to locate her son [Child B].  The Tribunal also does not accept that the authorities harassed her because of her sons’ Beja Congress membership or their disappearance.

17. Given the Beja Congress was the political and organised voice to try to improve rights for the  Beja it is quite plausible that the applicant’s sons would have joined the Congress. She has consistently maintained this claim but could provide no details of their activity with the Beja Congress. The applicant’s lack of details about her sons’ membership and activities in the Beja Congress could readily be explained by the information indicating the denial of women’s participation in political and public spheres of Beja society. The Tribunal therefore gives her the benefit of the doubt that two of her sons did join the Beja Congress.

18. The available country information indicates that the Beja Congress has continued to be active in a publicly political role within Sudan, so that there would be little reason arising from their membership of the Congress for the applicant’s two sons to remain in [Country 1].  However it may be they are in [Country 1] for other [reasons].  Therefore the Tribunal also accepts that two of the applicant’s sons are living in [Country 1].

    Fear of Harm in Sudan

19. The applicant claims to fear harm in Sudan because she is a woman, widow, of Beja ethnicity, with two sons who are members of the Beja Congress.

20. As put to the applicant the overthrow of former President Bashir’s regime in Sudan has created substantial change in Sudan.  However the available information about the changes and the future prospects presented by the transitional government is inconclusive. Some of the information highlights an increase in tensions and fighting which may lead to increased conflict and ethnic marginalisation in Sudan.  Other information depicts efforts to develop peace plans and agreements between the armed and other opposition groups to bring stability to Sudan.

21. The country information also indicates factional splits along sub-tribal bases within the Beja Congress which are creating violent conflict during this period of post-regime struggles for power.

22. In view of the ongoing volatility of the situation and lack of any clear indication that future  resolutions will be positive, the Tribunal accepts there is a real chance of further inter-tribal, intra-tribal and government conflict involving the Beja, the Beja Congress and the applicant’s Beni Amer sub-tribe of the Beja.  In this context, with two sons who are members of the Beja Congress, the Tribunal considers there is a real chance the applicant may be involuntarily caught up in conflicts, particularly inter and intra-tribal ones, which would increase her vulnerability to harm in a tense political environment.

23. The available country information quite overwhelmingly depicts the Beja of East Sudan as being marginalised, oppressed, disenfranchised from the central government, deprived of land and basic social services, and being exposed to extreme poverty.  Many commentators assess the situation as a deliberate attempt by the former regime to Arabicise the eastern states by forcing the Beja from their traditional lands and exposing them to poverty, hunger and the dangers of landmines.

24. The Tribunal notes that none of the post-regime information located has addressed remedying the poverty and oppression of, and discrimination against, the Beja.

25. The Tribunal therefore considers there is a real chance of the applicant returning to a situation of extreme hardship and poverty in Eastern Sudan with restricted access to government services, employment and general personal security.

26. The available information shows that Beja women have been considered inferior and have been deprived of many basic rights in Eastern Sudan. The information also shows that this situation is slowly changing so that there is a growing acceptance of girls and women seeking education and public life.  The information does not indicate that improvements are sufficiently widespread, sustainable, and substantial so that women can now readily access education and employment and basic freedoms.  The Tribunal notes the evidence from the applicant’s daughters that while they were able to obtain further education this did not result in opportunities for employment.

27. The Tribunal therefore finds that if the applicant returns to Sudan there is a real chance she will again be subject to discrimination severely restricting her access to education, employment opportunity, and public and personal rights. 

28. In terms of assessing harm arising from gender-based discrimination the Tribunal notes the following guidance materials.

29. The AAT’s 2015 ‘Migration and Refugee Division - Guidelines on Gender’ states:

    Gender specific persecution is the term used to describe forms of harm ‘more frequently or only used against women or affect women in a manner which is different from men’ including ‘sexual violence, societal and legal discrimination, forced prostitution, trafficking, refusal of access to contraception, bride burning, forced marriage, forced sterilisation, forced abortion and (forced) female genital mutilation, enforced nakedness/sexual humiliation.’ [emphasis added]

30. The Guidelines further state that “[g]ender-related claims may involve …[s]ocietal and legal discrimination”.

31. The UK Home Office May 2018 guidance, ‘Gender issues in the asylum claim’, similarly states:

    Discrimination based on gender - A discriminatory measure, in itself or cumulatively with others, may, depending on the facts of the case, amount to persecution. This would be the case, for example, if the discrimination has consequences of a substantially prejudicial nature for the person concerned such as but not limited to:

    •  serious legal, cultural or social restrictions on rights to earn a livelihood

    •  serious legal, cultural or social restrictions on rights to private and family life

    •  restrictions on political enfranchisement

    •  the ability to practise or choose not to practise a religion

    •  restrictions on access to public places

    •  the ability to access normally available educational, legal, welfare and health care provision

    For example, a woman may have limited property rights or face restricted access to healthcare. Women may also be subjected to discriminatory treatment that is enforced through law or through the imposition of social or religious customs that restrict her opportunities and rights. This can include, but is not limited to, dress codes, employment or education restrictions, restrictions on freedom of movement and activities or political disenfranchisement.

32. The Canadian Immigration and Refugee Board’s ‘Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution’, states:

    Generally speaking, women refugee claimants may be put into four broad categories, although these categories are not mutually exclusive or exhaustive:

    …

    3. Women who fear persecution resulting from certain circumstances of severe discrimination on grounds of gender or acts of violence either by public authorities or at the hands of private citizens from whose actions the state is unwilling or unable to adequately protect the concerned persons. In the refugee law context, such discrimination may amount to persecution if it leads to consequences of a substantially prejudicial nature for the claimant and if it is imposed on account of any one, or a combination, of the statutory grounds for persecution. …

33. The UNHCR’s May 2002 ‘Guidelines On International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees” states:

    Discrimination amounting to persecution
    While it is generally agreed that ‘mere’ discrimination may not, in the normal course, amount to persecution in and of itself, a pattern of discrimination or less favourable treatment could, on cumulative grounds, amount to persecution and warrant international protection. It would, for instance, amount to persecution if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on the right to earn one’s livelihood, the right to practice one’s religion, or access to available educational facilities.

    Significant to gender-related claims is also an analysis of forms of discrimination by the State in failing to extend protection to individuals against certain types of harm. If the State, as a matter of policy or practice, does not accord certain rights or protection from serious abuse, then the discrimination in extending protection, which results in serious harm inflicted with impunity, could amount to persecution.

34. The available country information shows that the applicant, as a Beja woman, has been and will be subjected to discrimination with substantially prejudicial consequences seriously restricting her right to earn a livelihood; causing her political disenfranchisement; restricting her access to public places and freedom of movement; and controlling her personal, marital and family life.  The available country information also indicates that widows have a demeaned status in Sudan and can be considered a burden upon a family.

35. It was difficult to obtain from the applicant a clear sense of what specific harm she fears now in Sudan and also of what harm she experienced previously in Sudan - as a Beja, woman and widow.  Despite being given repeated opportunities to express and explain her fears and experiences she spoke in generalisations and continued to refer back to her fear of physical harm from the authorities in their pursuit of her two sons, and the unilluminating phrase that  ‘the Beja are persecuted’.

36. The Tribunal notes that the applicant had access to primary level education only.  The Tribunal also notes that until her travel to Australia, that is for the first [age] years of her life, the applicant had little exposure to anything outside her own traditional culture as a Beja in East Sudan.  The Tribunal considers she may have an understandable lack of awareness of broader context to be able to provide detail about adverse experiences which were  considered the norm in her community.

37. The applicant was able to confirm that as a woman she was not able to participate in political life in Sudan, or to continue her education, or to have a career in Sudan. She spoke of the presence of government soldiers in East Sudan who were an intimidating and insulting presence.  She spoke of the lack of opportunity for employment for her and her children as Beja people.  She also spoke of a fear of being harmed in the violence which has been occurring at times in her region prior to and following the regime change. 

38. While perhaps not expressing a clear subjective fear of return on the basis of her Beja ethnicity, gender or widow status, the Tribunal notes that the applicant articulated a strong aversion to return to the conditions in which she had lived.  In the Tribunal’s view this aversion can be interpreted as an aspect of her subjective fear.

39. The Tribunal has found this a very difficult application to determine.  On one hand there is minimal indication from the applicant of a persecuted existence in Sudan because of her gender, marital status and ethnicity.  Yet on the other there is comprehensive country information depicting an intolerable situation for a woman exposed to severe levels of gender-based discrimination, demeaned status as a widow, and belonging to an oppressed and suffering ethnic minority group, the Beja.

40. The Tribunal considers that the fact of the applicant living through her experiences with muted complaint does not render the environment non-persecutory. It is difficult for the Tribunal to overlook Sudan’s status as the third ranked country with the most extensive legal discrimination against women, and the depiction of the Beja as one of the most at-risk ethnic groups in Sudan.  In the Tribunal’s view this information is highly relevant to its assessment of the applicant’s protection needs.

41. The Tribunal also notes that the applicant is of an age where some of the discriminatory measures impact less upon her that they would if she was younger.  However it is the Tribunal‘s view that even at [age] years of age a person should have the opportunity for education, work, an active public life, and secure freedom of movement.  The denial of such rights, even to a non-youthful person, remains serious harm.

42. The Tribunal notes that the applicant’s son and daughter remain in [City 1], Sudan, and that there is the potential for her to be kept safe by them.  However their presence does not preclude the real chance of discrimination the applicant will face in Sudan.  Moreover, the fact that she would need to rely upon them for her security simply underlines the lack of secure independence she faces as a widowed woman of the Beja community. 

1. Finally the Tribunal reasons that whilst on their own, the individual harms the applicant will be exposed to on account of a single aspect of her profile may not amount to serious harm,  they do so on a cumulative basis based upon her entire profile.

2. The Tribunal finds that the essential and significant reasons for the real chance of serious harm the applicant faces in Sudan are her race, as a Beja person, her imputed political opinion because she has sons in the Beja Congress, and her membership of the particular social groups, women in Sudan, and widows in Sudan. The Tribunal finds that women and widows are both particular social groups in Sudan in that they both share an immutable characteristic, gender and marital status respectively.

3. The Tribunal is satisfied the serious harm involves systematic and discriminatory conduct in that it will be intentionally and selectively done.

4. The Tribunal is satisfied that the serious harm the applicant faces relates to all areas of Sudan.  Further, in the current environment of still entrenched discrimination, ongoing instability and outbreaks of violence, the Tribunal finds there is no effective protection for the applicant in Sudan.

5. There is no indication that the applicant has the right to enter and reside in a third country. The Tribunal therefore finds that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   DECISION

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

   Melissa McAdam
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …
   receiving country,  in relation to a non-citizen, means:

   (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5J 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 them 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.

   5K  Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L  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.

   5LA  Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (2A)A non‑citizen will suffer significant harm if:

   (a)    the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)    the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …

   
   

“U.S. Policy Toward Sudan and South Sudan”, House Committee on Foreign Affairs
Subcommittee on Africa, Global Health, Global Human Rights, and International Organization, 26 February 2014.

Graduate Institute of International and Development Studies, Geneva (USDOS, Norwegian Ministry of Foreign Affairs, Ministry of Foreign Affairs of Denmark).