1721007 (Refugee)

[2021] AATA 3310

1721007 (Refugee) [2021] AATA 3310 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1721007

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Jane Marquard

DATE:30 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2021 at 5:52am

CATCHWORDS
REFUGEE – protection visa – Sudan – religion – Christian –  assaulted and threatened by Muslim Brotherhood – son’s conversion of Muslims to Christianity – extensive medical conditions – ongoing post-traumatic stress disorder – difficulties with self care – limitations of health system in Sudan – Ministerial intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
AGA16 v MIBP [2018] FCA 628
Applicant A v MIEA (1997) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
D v the United Kingdom (1997) 24 EHRR 423
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Haji Ibrahim 204 (2000) CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZAAJ v MIBP [2015] FCCA
Ndangoya v Sweden (European Court of Human Rights, Fourth Section, Application no 17868/03. 22 June 2004)
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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

OVERVIEW

1. The applicant is a [age]-year-old woman from Sudan. She was born in Port Sudan, but from 2009 until she departed the country in 2015, she was living in Khartoum.

2. She applied for a visitor visa to visit Australia on two occasions in 2014 and once in early 2015 but these applications were refused.

3. She was granted a Visitor (Subclass FA 600) visa in 2015 and first arrived in Australia [in] November 2015.

4. She applied for a Permanent Protection (Subclass XA-866) visa (protection visa) under s.65 of the Migration Act 1958 (the Act) on 22 January 2016 but her application was deemed invalid on 4 February 2016.

5. She re-applied for a protection visa on 10 February 2016. A delegate of the Minister for Immigration and Border Protection on 25 August 2017 refused to grant the applicant the visa.

6. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria under the Act. A summary of the relevant law and principles are set out below.

7. For the reasons set out below, the Tribunal has decided to affirm the decision under review. The Tribunal refers the matter to the Minister for consideration pursuant to s 417 of the Act.

   RELEVANT LAW AND PRINCIPLES OF REVIEW

8. 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.

   Refugee criterion

9. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

10. A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a) of the Act.

11. Under s.5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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–5LA of the Act, which are extracted in the attachment to this decision.

    Complementary protection criterion

12. If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act. 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) of the Act, which are extracted in the attachment to this decision.

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    SUMMARY OF CLAIMS

14. The applicant claims to fear returning to Sudan because of her Christian religion, and due to fears of attack by the Muslim Brotherhood arising from her son’s conversion of Muslims to Christianity when he lived in Sudan. She also fears that she would suffer harm due to inadequacies in the health system.

    CLAIMS AND EVIDENCE

    The evidence taken into consideration

15. In coming to a decision, the Tribunal has taken into consideration information provided to the Department as well as evidence before this Tribunal. The Tribunal has also considered independent sources about Sudan.

    Summary of evidence before the Department

16. The applicant made claims and provided information in her application forms and supporting documents, including a Statutory Declaration dated 25 January 2016. The applicant also provided evidence at an interview with the Department on 9 June 2017. A summary of her evidence follows.

17. She said that she was born in Port Sudan in [year]. Her parents have passed away, but she has three brothers, [Mr A], [Mr B] and [Mr C] and two sisters, [Ms D] and [Ms E], living in Sudan. They all reside in Port Sudan. Her sister [Ms F] lives in [Country 1].

18. She lives in Sydney with her daughter, [Ms G], her son-in-law, [Mr H] and her granddaughter, [named]. Her son [Mr I] also lives in Australia. Her daughter, [Ms J], lives in [Country 2].

19. Her daughter, [Ms K], lives in Khartoum with two daughters and a son. They have received threats and wanted to leave Sudan. She speaks to her frequently.

20. The applicant’s husband worked in a [specified] company and passed away in 2011 in Sudan.

21. She claims to have been a Coptic Christian since birth and part of the Egyptian Orthodox Church.

22. She finished school in Sudan in [year]. She worked for a short time as an [occupation] in [company].

23. She travelled to [Country 1] in 2008 for medical treatment and in 2009 for her son’s engagement. She travelled to [Country 3] in 2010 for her own medical treatment and in 2011 for medical treatment for [name] and [name]. In January 2011 she travelled to [Country 4] for a holiday with [Ms J]’s family. In 2012 she travelled to [Country 5] for a holiday with [Ms G], and in 2013 to [Country 6] for [Ms G] to meet [Mr H]. In June 2014 she travelled to [Country 1]. In May 2015 she went to [Country 3] for a medical check-up.

24. She lived in Khartoum from October 2009 until she departed Sudan in October 2015.

25. She worked as a [occupation] at [a named company] in Khartoum from March 2015 to October 2015.

26. She said that her son, [Mr I] preached to non-Christians in Sudan, and converted many Muslims to Christianity and he was targeted by the Muslim Brotherhood because of his activities in the church. She said that he was seen as an infidel. She said that on one occasion she saw her son return home covered in blood, with bruises and wounds on his body. She said that she suffered psychologically as she feared for his safety.

27. She said that [Mr I] was targeted by three particular members of the Muslim Brotherhood who wanted revenge because of their relatives’ conversion. She said that [Mr I] her son told her about this, and she also heard it from the relatives who made telephone threats after [Mr I] left Sudan.

28. She said that the people who threatened her and her son have strong connections with the North of Sudan, which is currently ruled by the Muslim Brotherhood who implement Sharia law and have no mercy on Christians, especially those who preach. She referred to the case of [a Bishop] and two priests who converted a Muslim girl called [Ms L]. The priest was arrested and another priest took refuge in Australia. The name of one of the priests was [name]. She said that her son ‘brought this girl to Christianity’ and her family was very prominent in the Muslim Brotherhood. She said that ‘any other person who helped in this case also had to flee Sudan’.

29. She claimed that when the Brotherhood found out from friends and family that [Mr I] had left the country in 2010 they continued to threaten her. When he obtained permanent residency in Australia, on 3 August 2015, they ‘became crazy’ as they wanted to inflict revenge on him. They dramatically increased the threats to the applicant’s family and threatened her by telephone and face to face, with rape, torture and death. She said that she and her daughter [Ms J] lived in constant fear.

30. She said that people tried to break down their front door more than three times, but disappeared when she alerted neighbours. The applicant changed the wooden door to a metal one. She said that sometimes she found threatening messages or verses from the Quran in front of her home.

31. She claimed that at the end of August 2015 around noon she was attacked by two men near her home while going to the local market for groceries. She recognised them as men who had tried to break into her home, as she had seen them through the keyhole. They told her that as her son was ‘too cowardly to return’, they would inflict revenge on her. The two men pulled her hair and kicked her when she fell down. She said that they did not stay long as she screamed, and people started gathering and pulling them away. She said that she could not report this incident to the police as the ‘same people who are in the government are the Muslim Brotherhood’. She said that after this she did not leave the house until she arrived in Australia.

32. She claimed that her son-in-law and daughter, own [Business 1] named [name], and they fix government [equipment]. As this is a Coptic Christian name, he was asked to change the name by the government or they would take their business away. He was threatened with death if he did not leave the country, and was told that it was an Islamic country and he was not allowed to live in it. She said that some people ‘from the security came to his shop and took a big amount of the spare parts and gave him two cheques. When he went to put the cheques in the bank he found out there was no money.’ She said that the police station refused to make a report about this. She thinks that this happened to them because they were Christian. She said that the same two people who came to the shop and took the parts, abducted her son-in-law for three days and the family did not know where he was. She said that they ‘tied his face and eyes and put him in the car and took him to an unknown place and asked him to write on paper that the money was fully paid to him’. He fled to [Country 2] with his family.

33. The applicant fears that due to all these circumstances she will be killed if she returns to Sudan. She said that she applied for a visitor visa twice in Sudan in 2014 as she wanted to travel to Australia to apply for protection.

34. She said that she then applied for a visitor visa on 8 September 2015 and was granted the visa on 31 October 2015, and she took the first available flight. After arriving in Australia she wanted to apply for protection straight away but her daughter was heavily pregnant and had her baby on [date[. After she saw a solicitor she applied for protection in early January 2016.

35. She said that even though [Mr I] left Sudan over six years ago, the Muslim Brotherhood would not forget their family because they have ‘big connections’ and at the time it was a ‘very big story’. Her daughter [Ms K] was able to live in Sudan without being harmed as ‘they always tried to keep [Ms K] away from them.’ She said the Brotherhood did not know that [Ms K] was her daughter.

36. She said that she is an old lady and suffers from diabetes, hypertension, high cholesterol and heart failure. She has become physically and psychologically ill since the attack.

37. The representative submitted that she would suffer inhuman and degrading treatment in Sudan. It was submitted that the applicant was locked in her house from the time she was beaten in August until she left the country, unable to get medical treatment, leave her house, practise her religion or go out on the street.

    Documents provided to the Department

38. The applicant provided the following documents to the Tribunal:

    ·Tax invoice indicating prescription medication list.

    ·Medication chart dated 9 April 2016.

    ·Statement of account March 2016.

    ·Letter dated 15 June 2017 from Father [M], the parish priest at [Church 1] in [Australia] attesting that the applicant is a committed and practising Coptic Orthodox Christian. He said that the church is appreciative of efforts to ensure the safety of Coptic Orthodox Christians from intentional atrocities in their homeland.

    ·[An] article titled [title], undated. This article refers to various attacks on Christians in the Middle East and Africa and refers to the arrest of two priests of the Coptic Church in Sudan, Rev. [N] and Rev. [O] for baptising a convert from Islam. The article stated that the convert’s name was [Ms L], a Sudanese Arab, who was a student who converted two years prior, but practised secretly. It was reported that she had decided to make a public commitment through baptism which led to the imprisonment of two priests. The article said that she had tried to flee but was stopped at the airport. [A person] who had helped her was also arrested. The article also referred to a church leader, Pastor [P] and his wife who were deported on [date]. On 17 December the government damaged an Africa Inland Church building in Northern Khartoum. On 19 December the Lutheran Church was not permitted to record their traditional Christmas message on national television.

    ·[News] reports concerning the conversion of [Ms L]. These articles, from 2012, referred to heightened persecution of Christians since the secession of South Sudan in 2011. The articles also referred to the incident with [Ms L]. The article referred to Islamic extremist groups calling for the government to rid Sudan of Christianity.

    Visitor visa records

39. Departmental records indicate that the applicant applied for a visitor visa in early 2015 to attend her daughter’s wedding in Australia. It was claimed that she was looking after her sick son-in-law in Sudan at the time. The records indicate her son [Mr I] travelled to Australia on a Prospective Marriage visa in 2011, which expired, and then applied twice for protection visas and then a visitor visa. This application was refused.

40. Departmental records show that when the applicant applied for a visitor visa in October 2015 it was on the basis of her daughter’s pregnancy. She had two daughters, six siblings and five grandchildren in Sudan.

    Decision record of the Refugee Review Tribunal (RRT) for the applicant’s son, [Mr I], dated 14 August 2012 (the 2012 RRT Decision)

41. This decision was discussed with the applicant at the Departmental interview and referred to in the delegate’s decision.

42. The facts presented by the applicant’s son are as follows. He graduated in [field] in [city] in 2005 and worked in Sudan until 2009. He claimed that as a committed Christian, he encountered problems with fanatical members of the Muslim Brotherhood when he preached to Muslims and converted some to Christianity. He claimed that the Brotherhood used beautiful girls to try and convert him, but when this failed, they threatened to kill him. He was then attacked by five members on the street who called him an infidel. On another occasion he was punched when walking home. On a third occasion he was punched, also when walking home. He claimed to have left the country because of fear of being killed and because the Brotherhood prevented him from finding work. He met his fiancée in [Country 1] but she later changed her mind about the marriage. He said that threats continued from the Muslim Brotherhood, including to his family. His father had been unable to sleep outside as he normally did and died from heatstroke. He said that his family had not been attending church out of fear and had received threatening telephone calls.

43. The Refugee Review Tribunal was satisfied that he was a committed Christian but not that he was involved in proselytising, or was attacked for this reason, or that there were continued threats to him or his family, due to the vagueness of the claims.

    Ministerial Intervention decision dated 30 May 2014 for the applicant’s son

44. The applicant’s son was granted a visitor visa through ministerial intervention.

45. It was noted that he continued to assert that he would be killed if he returned.

46. It was noted that his former fiancée and former wife had said that he used them in order to obtain residency in Australia.

47. It was noted that he is a [Occupation 1] who had been granted registration [in] Australia to work as a [Occupation 1].

    Evidence before the Tribunal

48. The applicant provided written submissions to the Tribunal and appeared at a hearing on 10 May 2021 to give evidence and provide arguments. A summary of her evidence follows.

49. The Tribunal noted her health issues as referred to in a number of medical reports and asked her how her health was on the day of the hearing. She said that she had taken painkillers to be able to attend the hearing but felt capable to give evidence.

50. She said that her family went to live in Port Sudan from [Country 1] when she was about six or seven years old. They moved there because of job opportunities. Her father worked at a workshop at the port. She grew up in Port Sudan with three brothers and three sisters.

51. Her three brothers are still living in Port Sudan. [Mr A] is on a pension. [Mr B] works in a [shop]. The third brother, [Mr C] is a [occupation]. They are married with children.

52. Her sister [Ms D] is living in Port Sudan and [Ms E] is living in Khartoum. Her sister [Ms F] lives in [Country 1] and is married.

1. When growing up in Port Sudan, her family practised Coptic Orthodox Christianity. The family attended church together on Fridays and Sundays. There was a large Coptic community. There were church activities such as Sunday school after church and youth meetings. The church was not near her home, but there was a church bus which took them there. Her brothers and sisters are still attending the same church today. She said that they had no difficulties practising their religion. They ‘did not face problems and had freedom’. She said that the family members who are currently living in Sudan can practise their religion freely.

2. Her mother passed away in 2012 and her father about 10 years prior to that.

3. She lives in Sydney with her daughter, [Ms G], her son-in-law, [Mr H] and her granddaughter, [named] who is [age] years old. [Mr H] was granted permanent residency about 20 years ago and [Ms G] was later granted a partner visa. Her son [Mr I] also lives in Australia but he is not married. He has permanent residency.

4. Her daughter, [Ms K], lives in Sudan. She is not working and is married with [number] children.

5. Her daughter, [Ms J], lives in [Country 2] and has a permanent visa. She is looking after her children.

6. The applicant went to school in Port Sudan, finishing in [year]. After this she worked in the [specified] department of a company until 2001. From 2001 until 2009 she worked in a different [company] related to imports and exports. After this she was at home until 2015. She worked for a short time until October 2015, assisting her [son-in-law] from home.

7. She was married in 1979 and had a church wedding. Her husband worked for [company]. He passed away in 2011 although he was not ill, it was ‘just his day’.

8. She travelled to [Country 1] in 2008 to accompany her mother for medical treatment.

9. She travelled to [Country 3] in 2011 because her grandson was getting surgery.

10. Her husband’s parents have passed away.

11. She was asked why she fears returning to Sudan. She said that ‘my son used to preach to people in Sudan about Christianity and because of this many Muslims converted. This is problematic in Sudan. People who do this are not left alone. Because of this we faced many problems’.

12. She said that her son [Mr I] was a [position] in the church. He preached with other priests in different regions and converted many to Christianity. She said later Islamic law was implemented in Sudan and anyone who preached was punished or killed. She said that preaching is ‘good for Christians as they want to convert as many people as possible to Christianity’. She said they had to preach in secret and would not talk about what they did. She said that the problems started when they preached to a woman from the Muslim Brotherhood called [Ms L] and converted her. Her son was involved in this conversion.

13. She was asked how she knew that her son had converted people. She said that she did not know at the time. She said that the problem started when [Ms L] converted to Christianity and then members of the Muslim Brotherhood followed her son and anyone involved with the conversion of [Ms L]. The authorities beat him up badly and wanted to kill him. Then he told her that he had been involved with converting a girl called [Ms L] to Christianity. He told her to be careful as the Muslim Brotherhood was monitoring them. She said that it is ‘very painful to remember’. She said that at the time her son [Mr I] had already applied for a visa for prospective marriage in Australia, and then he left in 2010.

14. She said that after [Mr I] left for Australia, the Muslim Brotherhood wanted to take revenge on her. She was sent threats and told that she must convert to Islam. She was with her daughter [Ms J] in Khartoum at this time as she had been living there since 2010. She said that the Muslim Brotherhood ‘did not know them in Port Sudan, but rather in Khartoum where [Mr I] had been living with them in a house’. She said that the threats were by telephone at first, then they put verses from the Quran under the door. They wanted to convert her and [Ms J], or they said that they would kill them. She blocked her telephone. These were ‘horrible days’. She said that they tried to break the door down three times so they changed the door to a metal door. Asked if they considered going to Port Sudan to get away from the Muslim Brotherhood, she said that wherever she went they would find her.

15. The Tribunal noted that her son left in 2010 and asked if the threats she was referring to were around this time, or if they were ongoing. She said that at first the Brotherhood were waiting for [Mr I] to return to Sudan, so they could get revenge. But then they found out he had permanent residency and they threatened her and said that they would take revenge on her. She was asked if the threats continued for five years and she said that she cancelled her telephone line after getting messages. She said that when they heard through Sudanese friends in Australia that he wasn’t coming back to Sudan, the threats were more aggressive. People in Sudan were calling her family to congratulate them on her son getting residency in Australia.

16. She was asked if she considered applying for protection in [Country 4], [Country 6], [Country 3] or [Country 1] as she travelled there between 2011 and 2015. She said that she did not apply as the threats were not as bad then. She said that in the beginning the Brotherhood was waiting for [Mr I]. She asked the Tribunal, ‘why did they want to hurt us as we did nothing to them?’ She said that after this they applied for visas to Australia.

17. She claimed that at the end of August 2015 she was visiting a market close to their house, at about noon, when she felt someone pulling her hair. Members of the Brotherhood then threw her to the ground and stepped on her back. She screamed and people came and moved her from under them. She said that from this time onwards she suffered mentally and physically. She did not leave the house until she departed for Australia. She did not even go to the doctor for her bulging disc.

18. She said that she applied for a visitor visa on 8 September 2015 and was granted the visa on 31 October 2015, and she took the first available flight.

19. The applicant was asked why members of the Muslim Brotherhood would still be interested in her so long after her son left in 2010. She said that ‘the issue is the problem with that girl who was converted.’ She said that ‘there are many Muslim brothers everywhere’.

20. The Tribunal asked the applicant how her many family members can live in Sudan safely and worship in church, and work, but she claims she would not be able to safely. She said that the Muslim Brotherhood do not know of her family because they live in Port Sudan. Although her daughter [Ms K] lives in Khartoum, at the time of the trouble they did not visit her as they did not want to cause trouble to her. [Ms K]’s husband said to her that ‘I hope you don’t come back and cause us trouble.’ She said that she does not know where she would go if she returns to Sudan. She said she cannot sleep at night when she remembers what happened to her.

21. She said that her [son-in-law] had [Business 1] and repaired [equipment]. The shop was named [name] and the Muslim Brotherhood told him to change the name or they would not [give him any business]. She said that they stopped taking government [equipment] to repair at his [business] and his work suffered. She said that they caused a lot of trouble. She said that these were different people to the ones who threatened her but the story illustrates how Christians face discrimination at work and in life.

22. She was asked why her son has not provided a Statutory Declaration in support of her case, explaining what took place. She said that he was not there at the time of the incidents, but he would provide evidence.

23. The applicant’s representative submitted that the applicant’s claims were based on the trauma she had suffered in the past, and the fact that this would happen again and cause her serious or significant harm if she returned. She claimed that the conversion of [Ms L] was a significant event in Sudan. She submitted that she was treated in an inhuman and degrading manner, for example she had to stay at home after the attack without medical treatment. The representative submitted that there is a risk of death or a threat of harm.

24. The applicant was very emotional and thanked the Tribunal for listening to her story and showing kindness. She said that she is mentally exhausted and asked for help. She said that she feels that the Brotherhood are ‘behind her back’ all the time.

    Clinical report from [Dr Q], Clinical Social Worker/ Counsellor-Psychotherapist/ Hypnotherapist dated 27 May 2021

25. [Dr Q] in her report ‘implored’ the Department to reconsider the applicant’s case for asylum, suggesting her life would be at risk if she returned. She summarised the applicant’s background and claims. She said that prior to leaving Sudan on a ‘weekly basis’, the fundamentalists were making threats to their lives. She said that the applicant had been ‘distorted’ over the rejection of her application by the Department and that she has ‘severely deteriorated psychologically and physically’, and is ‘scared for her life if she is forced to return to Sudan as she fears she will be persecuted’.

26. [Dr Q] said that the applicant ‘finds it extremely difficult to engage in activities of daily living, such as simple self-care tasks’, and that she ‘exhibits symptoms consistent with a DSM-5 diagnosis of Post-Traumatic Stress Disorder, Major Depressive Disorder, Anxiety.’ She reported that the applicant finds it very difficult to cope with any kind of stressors, particularly emotional stress. She finds it difficult to get out of bed in the morning, has sleep difficulties, loss of appetite, extreme fatigue, inability to adequately care for herself and her needs, heightened stress and low mood. Due to her current mental health difficulties, she requires ongoing help and assistance to ensure she is accessing adequate care for daily living tasks, personal hygiene, food intake and emotional support. She is currently living with her daughter and her family.

27. [Dr Q] said that the applicant suffers ‘stress levels, severe anxiety, major depression and post-traumatic stress disorder’. She has been taking anti-depressants. She also suffers from ‘ongoing health conditions including heart failure, Hypercholesterolaemia, Hypertension, L4/5 Disc and severe degenerative D, NIDDM, Obstructive sleep apnoea, Post Traumatic Stress Disorder, Sciatica – L4/L5 disc prolapse (Left), CPAP and Atrial Fibrillation.’ Her [son] supports with monitoring her medication and specialist appointments.

28. [Dr Q] said that the applicant ‘appears older than her stated age due to her mental condition. She is often forgetful and has great difficulty focussing on the conversation during the interview.’ She said that she ‘lives in her own little void, low self-esteem, lacks confidence. She said she feels that she can’t manage on her own.’ She stated that she ‘often remains awake due to her past traumas in Sudan and the fear of being persecuted if she were to return.’ The applicant is a widow and her ‘only real enjoyment is talking to her children and grandchildren every day. She has no other enjoyment in life and doesn’t go out at all due to her psychological conditions.’

    Statutory Declaration of the applicant’s son, [Mr I], dated 31 May 2021

29. [Mr I] said that he was born to a Coptic Christian family in Port Sudan and attended [a named] Church. He began serving in the church at age 15 as a Sunday School teacher under the direction of Rev. Fr [R]. He later visited needy members of the congregation and those who required financial or spiritual assistance.

30. He said that he then began introducing non-Christians to Christianity. He preached to people in his circle of friends, and acquaintances at school and university, as well as colleagues in [Occupation 1]. He preached to those in his own district and in nearby cities. Some of the Muslims he preached to converted to Christianity.

31. He said that he was involved in the conversion of [Ms L] to Christianity. She was a very well-connected girl in Sudan from a big, connected family who were part of the Muslim Brotherhood. After this he had difficulties from the Muslim Brotherhood, receiving threatening calls. They told him to stop his Christian service.

32. On one occasion he was attacked by a group of five men from the Muslim Brotherhood and was beaten severely. He was called an ‘infidel’. On another occasion, some people jumped out of the car and started punching him and threatened to kill him. The people who attacked him were members of [Ms L]’s family. On a third occasion, he was beaten and spat at on the way home from work. He could not work as a [Occupation 1] despite his qualifications.

33. He travelled to Australia on a Prospective Marriage visa and then applied for a Protection visa.

34. He claimed that his father died as a result of heatstroke and he could not risk attending his funeral as his mother told him that she and his sister, living in Khartoum, had continued to receive anonymous threatening telephone calls. When he got permanent residency, the persecution on his mother and sister became worse as people took revenge on him.

35. He said that [Ms L] fled Sudan, and everyone who assisted her also fled and sought protection in various countries, including [two named countries] and Australia. Fathers involved in the conversion were arrested in Sudan.

36. He said that his mother and sister faced threats. There were attempted break-ins to their homes, and her mother changed the door. His mother became very frightened. He said that to this day he feels very guilty about what happened to his mother in her very fragile state of health. She suffers from heart failure and atrial fibrillation triggered heavily by anxiety. She had a severe episode of atrial fibrillation in April 2020 and was admitted to hospital. When she arrived from Sudan, she was severely depressed and was not speaking or eating. Her health does not permit her to get upset.

    Other documents submitted to the Tribunal

37. The applicant submitted the following medical records to the Tribunal:

    ·Letter dated 22 April 2020 from A/Prof. [S] to Dr [T]. The letter details the applicant’s medical conditions and medical plan. She had been treated in the emergency department due to ‘paroxysm of atrial fibrillation in the context of a severe allergic reaction’. Her other diagnoses were diastolic iv dysfunction, hypertension, diabetes, possible sleep apnoea, hypercholesterolaemia and sciatica.

    ·Letter dated 3 June 2020 from A/Prof. [S] providing updated information on the applicant’s medical condition.

    ·Letter dated 12 August 2018 from Dr [U], a cardiologist, in relation to the applicant’s clinical diagnoses of heart failure, normal coronary arteries, mild pulmonary hypertension. Dr [U] confirmed that he had no personal relationship with the applicant’s [son]. He said that the applicant was ‘quite symptomatic with reduced exercise tolerance, dyspnoea, occasional orthopnoea and paroxysmal nocturnal dyspnoea. She requires close monitoring or if not cautiously monitored, or left untreated, heart failure can lead to serious or life-threatening consequences such as pulmonary oedema and can be fatal’.

    ·An emergency department discharge referral report by Dr [V] at [a named] hospital dated 21 April 2020.

    ·A health summary sheet dated 8 April 2021 by Dr [W].

    ·An examination report from Dr [X] of [named] Radiology dated 25 January 2021 in relation to low back pain with radiation to left leg.

    DECISION OF THE DEPARTMENT

38. The delegate was satisfied that the applicant is a Coptic Christian and was attacked on the street for reasons of her religion. However, the delegate did not accept that the applicant’s son, [Mr I], was seriously attacked by the Muslim Brotherhood due to his practise of converting Muslims in Sudan to Christianity. The delegate accepted that the applicant may experience low level discrimination or verbal insults as a Coptic Christian in Sudan, however, did not find that this discrimination was sufficiently serious to amount to serious harm. The delegate was not satisfied that the complementary protection criteria could be met.

    FINDINGS AND REASONS

    Nationality

39. The applicant has a passport from the Republic of Sudan issued [in] 2014, which expired [in] 2019. The Tribunal is satisfied that the applicant is a national of Sudan, and that Sudan is the receiving country for the purposes of the legislation.

    Findings of fact

    The reasonable approach to fact-finding

40. When assessing claims the Tribunal must make findings of fact in relation to the claims. In this case, the Tribunal must make findings as to whether the incidents she claimed took place in Sudan did in fact eventuate. This involves an assessment of an applicant’s credibility. The Tribunal recognises that assessment of credibility can be based on imperfect perceptions of truth,[1] and as such is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions about credibility.[2] In the Full Federal Court case of AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.

    [1] Fox v Percy (2003) 214 CLR 118

    [2] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

41. This approach is supported in numerous judgments and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

42. The Full Federal Court noted in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167:

    refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.

43. Psychological research on memory of trauma[3] indicates that inconsistencies, fragmentation of memory, lapses in memory, lack of specificity and overgeneralisations do not necessarily reflect lack of veracity in relation to recalled events. The Tribunal notes that psychological research indicates that accurate human recollections of all kinds can be disrupted in unpredictable ways following trauma.[4] The applicant provided a copy of a report of [Dr Q], a clinical social worker/counsellor-psychotherapist, hypnotherapist/mental health specialist dated 27 May 2021 in regards to trauma suffered. The Tribunal is not bound by rules of evidence but has expectations in regard to the provision of expert evidence, as set out in its Guideline for Persons Giving Expert and Opinion Evidence.[5] Compliance with these Guidelines may determine the weight given to the evidence. The Tribunal notes that s.3.1(b) provides that a person giving evidence based on his or her special knowledge has an overriding duty to provide impartial assistance and is not an advocate for a party to a proceeding. Such a person is required to declare impartiality. The clinical social worker in her report ‘implored’ the Tribunal to reconsider the decision not to grant the applicant asylum. Such language suggests that her role was crossing into advocacy rather than expert advice. She also did not provide a declaration of impartiality, details of her area of knowledge, qualifications and experience, or how she reached her findings, including questions asked, assumptions made, and details of examinations, tests, or other investigations upon which she relied in preparing her report, as required by the Guidelines. These omissions have impacted on the weight given by the Tribunal to this report. Nonetheless, in light of the evidence in its totality, the Tribunal accepts the evidence of the clinical social worker that the applicant finds it difficult to cope with stressors and to engage in daily activities and is often forgetful.

1. The Tribunal is conscious that there may be factors that consciously or otherwise influence decisions,[6] and has taken into consideration research which indicates Tribunal members may rely on assumptions which can be inconsistent with psychological literature.[7]

2. The Tribunal is guided by these decisions, research and commentaries, and is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time or trauma and cultural issues which affect how an applicant answers questions. A person may forget dates, locations, distances, events and personal experiences. The Tribunal has taken these matters into account, as suggested by the Tribunal’s Guidelines on the Assessment of Credibility,[8] both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal has also taken into consideration the applicant’s health conditions, including diabetes, heart failure and hypertension, and accepts that these health conditions impact on her life and may also make her feel particularly vulnerable given her age. The Tribunal has also taken into consideration her clinical diagnosis of post-traumatic stress disorder, major depression and anxiety, as described in the social worker’s report dated 27 May 2021.

   Findings of fact

3. The Tribunal accepts that the applicant is a Coptic Christian. Her evidence, and that of her son in the RRT decision and before this Tribunal, have been consistent about this. Her commitment to the church was verified by Father [M], the parish priest at [Church 1]. She was married in the church, and was able to describe church activities.

4. The Tribunal notes the findings of the Refugee Review Tribunal in the 2012 RRT decision. The RRT was satisfied that the applicant’s son was a committed Christian but not that he was involved in proselytising, or was attacked for this reason, or that there were continued threats to him or his family due to the vagueness of the claims. The Tribunal, after taking detailed evidence from the applicant, and from the applicant’s son, accepts that the applicant faced threats and harassment from the Muslim Brotherhood, including an assault on the applicant in 2015, for the following reasons.

   [3] M Conway, ‘Episodic Memories’ (2009) 47 Neuropsychologia 2305; J Herlihy, L Jobson, and S Turner, ‘Just tell us what happened to you: autobiographical memory and seeking asylum’ (2012) 26 Applied Cognitive Psychology 661; C Brewin, The nature and significance of memory disturbance in posttraumatic stress disorder (2011) 7 Annual Review of Clinical Psychology 203.

   [4] H E Cameron, Refugee Status Determinations and the Limits of Memory (2010) International Journal of Refugee Law 469.

   [5] AAT, Guideline for Persons Giving Expert and Opinion Evidence

   [6] H Bennett and Broe, G, The neurobiology of achieving a comfortable satisfaction (2014) 26 Judicial Officer, Bulletin 8, 65–9.

   [7] Dowd, Hunter, Liddell, McAdam, Nickerson and Bryant, Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal (2018) International Journal of Refugee Law, 30(1), 71–103.

   [8] AAT, Migration and Refugee Division, Guidelines on the Assessment of Credibility, available on the AAT Website,  Firstly, the applicant’s evidence has been consistent since she first made her claims in her application in 2016. Consistency and coherency of account[9] can often indicate veracity. For example, her description of going to get groceries around ‘noon’, when she was attacked, has been consistently provided in the narratives provided to the Department and Tribunal. Sworn evidence has also been provided to this Tribunal by her son. The Tribunal was persuaded by his evidence, in particular, that he said that he has always felt guilty about the fact that his involvement in the church had repercussions for his mother, who was ‘treated inhumanely and she did not do anything at all to deserve this’.

   [9] AAT, Guidelines on the Assessment of Credibility, July 2015, available on the AAT Website,  Secondly, as described by the applicant, the ‘Muslim Brotherhood’ dominated Sudanese politics and life until the overthrow of the Islamic regime in 2019 such that it is feasible that they had the power over individuals such as the applicant, as described by her. The Oxford Dictionary of Islam’s entry on the ‘Muslim Brotherhood in Sudan’ confirms that it ruled Sudan from 1989 to 2019, claiming that the Brotherhood ‘dominated Sudanese politics’ since the 1989 coup:

   Islamic revivalist organization that originated among Sudanese students in Cairo in 1940s. Rejected union with the Egyptian branch, forming an alliance instead with the Sudanese Ansar-Ummah political bloc in support of Sudanese independence. Hassan al-Turabi emerged as its most effective spokesperson in 1964. The Muslim Brotherhood founded the Islamic Charter Front in 1964 to advocate Islamic constitution. The Muslim Brotherhood preferred pragmatism to armed struggle and joined forces with the regime in 1977. Members were appointed to positions in the judiciary and the educational and financial systems, improving organization and finances. Insisted on the foundation of an Islamic state. Supported the implementation of hudud punishments in 1983 as part of an educational process to improve the morals of citizens. Formed the National Islamic Front in 1985 and participated in 1986 elections. Provided support for the regime established by a military coup in 1989 and has since dominated Sudanese politics.[10]

   [10]  Oxford Dictionary of Islam, Oxford Islamic Studies Online, Muslim Brotherhood in Sudan’, 21 June 2021

   102.   A 2010 academic paper written by professors from the University of Nottingham adds that:

   [t]he NCP [National Congress Party] under President Umar Hassan Ahmad al-Bashir is the dominant political party in Sudan (CIA 2009). The NCP has formerly been known as the National Islamic Front (NIF) which is an Islamist movement originating from the Sudanese Muslim Brotherhood (Zahid and Medley 2006). It came to power in 1989 when NIF sympathisers within the army under the command of al-Bashir staged a successful military coup (Johnson 2003;Zahid and Medley 2006;UCDP 2008).[11]

   [11] Martin Ottmann and Stefan Wolff, Content and Context: Autonomy and conflict settlement in Sudan, 2010

   103.   Clearly, the Muslim Brotherhood was a dominant force such that it is perceivable that members could target individuals involved in conversion with impunity.

   104.   Thirdly, the applicant’s claims that conversion was treated seriously by extremists accords with country sources which state that prior to legal changes in 2019, laws in existence under the al-Bashir regime criminalised:

   …apostasy, blasphemy, conversion from Islam to another religion, and questioning or criticizing the Quran, the Sahaba (the Companions of the Prophet), or the wives of the Prophet. The law does not specifically address proselytizing; however, the Bashir government criminally defined and prosecuted proselytizing as a form of apostasy.[12]

   [12] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summ

   105.   As explained by the US Department of State (USDOS), apostasy had previously been embedded in the country’s criminal code:

   The criminal code does not explicitly mention proselytizing, but it criminalizes both conversion from Islam to any other faith (apostasy) and acts that encourage conversion from Islam. Those who convert from Islam to another religion as well as any Muslim who questions or criticizes the teachings of the Quran, the Sahaba (the Companions of the Prophet), or the wives of the Prophet Muhammad may also be considered guilty of apostasy and sentenced to death. Those charged with apostasy are allowed to repent within a period decided by the court, but they may still face up to five years in prison.[13]

   [13] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summ

   106.   The criminalisation of apostasy at the time may well have fuelled the extremists to act with impunity in attacks on the applicant, as she has claimed.

   107.   Fourthly, the conversion of [Ms L] is described in a number of media articles referred to earlier. While this does not corroborate the applicant’s claims that her son was involved in the conversion, it does indicate that there was significant retaliation of those involved in [Ms L]’s conversion.

   108.   Fifthly, the applicant’s oral evidence at the Tribunal hearing, her son’s evidence and the evidence of the social worker confirm that she was severely traumatised by the assault in the marketplace, and that she still finds it difficult discussing the attack, referring to the period as ‘horrible’ and ‘very painful to remember’. Her evidence that although she needed medical attention she did not leave the house after the attack, was indicative of the impact of the attack on her. She also provided reports of the attack to her clinical social worker, who has also reported on impacts on her of trauma, including screaming in her sleep and a number of emotional triggers. Her son said that when she arrived from Sudan, she was severely depressed and was not speaking or eating. The Tribunal was persuaded by this evidence, considered cumulatively, that the assault took place and had significant impact on her.

   109.   Finally, the Tribunal has taken into consideration the fact that the applicant attempted to travel to Australia earlier than 2015, and that she applied for a protection visa shortly after arrival in Australia, indicating that she had a genuine fear of return.

   110.   Taking all these matters into account cumulatively, the Tribunal is satisfied that the applicant’s son was involved in conversion of Muslims to Christianity prior to 2010 and that after he left the country this led to threats and harassment on the applicant, including an assault on the street in 2015.

   111.   The Tribunal also accepts on the basis of the medical reports that the applicant suffers from a number of medical conditions including diastolic iv dysfunction, hypertension, diabetes, possible sleep apnoea, hypercholesterolaemia and sciatica. The Tribunal also accepts from her testimony and the clinical social worker’s report that she suffered trauma from the attack and threats in Sudan, and that she has had ongoing post-traumatic stress disorder, major depressive syndrome and anxiety.

   Does the applicant have a well-founded fear of persecution?

   112.   Under s.5H(1) of the Act, a person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail him or herself of the protection of that country.

   113.   The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

   114.   The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

   ·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   ·     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 above; and

   ·     the real chance of persecution relates to all areas of a receiving country.

   Genuine fear

   115.   The Tribunal is satisfied that the applicant fears being persecuted for reasons of her religion, given her experiences prior to leaving Sudan. This fear was described persuasively in her own testimony and commented on in the report of [Dr Q] in May 2021 as well as by her son. The applicant suffers from anxiety, which would exacerbate the fear she feels.

   Real chance of serious harm

   116.   For a person’s fear of persecution to be well-founded, there must be ‘a real chance that, if the person returned to the receiving country, the person would be persecuted’. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s.5J(1)(b), provides an objective element to that concept; not only must a person fear persecution, there must be a prospect of that fear being realised.

   117.   The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

   118.   In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   119.   The Tribunal is not satisfied that there is a real chance of serious harm if the applicant were to return to Sudan for the reasons set out below.

   120.   Firstly, the incidents of harm took place quite some time ago in circumstances such that the Tribunal is not satisfied that the applicant would continue to be sought out by members of the Muslim Brotherhood if she returned to Khartoum. The applicant’s son left Sudan in 2010. The applicant left the country in 2015. The members of the Muslim Brotherhood who the applicant claims was seeking her out because of her son’s activities,  have not targeted the applicant’s daughter or her sister who have lived in Khartoum since that time. While the applicant has said that in 2015 she kept away from her daughter in Khartoum so as not to draw attention to her, the Tribunal notes that if the Muslim Brotherhood were motivated to harm members of the family, it would be easy to locate them and do so, particularly as the applicant has said that members of her family continue to practise their religion freely such that it would not be difficult to locate them. The Tribunal is also not satisfied that the members of the Muslim Brotherhood who targeted them then would still do so if she returned in the reasonably foreseeable future as they have also not targeted the many other family members who live in Port Sudan. Her three brothers, two of whom have employment are living in Port Sudan, as is one sister. They all attend the same Coptic church that the applicant attended, such that it would be easy to locate them. This does strongly suggest that the applicant would not be harmed if she returned to Sudan, however this factor is not a reason for affirming the decision on its own. It is considered cumulatively with the other factors mentioned below.

   121.   Secondly, there is now a different government and prevailing culture in Sudan, and the power of the Muslim Brotherhood has been reduced such that it would be more difficult for former members to act with impunity. Since former president Omar al-Bashir’s removal from power in April 2019, Sudan – with the support of Egypt – has been working to ‘crack down on the Muslim Brotherhood’.[14] This has taken the form of withdrawing Sudanese nationality from 3,000 foreigners ‘who obtained it during the rule of ousted Sudanese President Omar al-Bashir, including members of the Brotherhood who fled Egypt and other countries’, dismantling the Brotherhood’s control of state institutions, introducing laws to dissolve and confiscate the property of the Brotherhood’s political arm (NCP) and instigating training courses for imams promoting peace and countering extremism.[15] As part of its efforts to dismantle the Brotherhood’s influence over state institutions, the transitional government is reported to have ‘terminate[d] the service of 239 advisers and ambassadors affiliated with the Brotherhood’.[16] At the opening of the training course for imams, which commenced in December 2020, Sudanese Ministers were quoted by media outlets as saying:

   The Sudanese government has pursued a policy of openness to the outside world, but the practices of the Sudanese Islamic movement affiliated with the Muslim Brotherhood has led to the isolation of Sudan and its government from many countries as Sudan was added on the list of countries sponsoring terrorism.

   [14] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

   [15] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

   [16] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

   122.   Egyptian Minister of Endowments Mohamed Mokhtar Gomaa said during his speech at the opening of the training course, ‘The training consists of promoting the tolerance of Islam, as some religious groups have gone so far as to promote extremism. They promoted a discourse whereby extremism falls within the category of religiosity and that the more extreme the sheikhs are, the more religious they will be’. He noted, ‘These groups do not believe in the homeland, as they think that the interest of the group rises above anything else. Meanwhile, we believe that the interests of the nations are an intrinsic part of the interests of the religions.’[17]

   [17] Al Monitor, ‘Sudan joins forces with Egypt to crack down on Muslim Brotherhood’, 29 December 2020

   123.   In July 2019, The Arab Weekly reported that ‘Sudan’s transitional authorities are enthusiastic about weakening the Muslim Brotherhood amid fears that the Islamist organisation would emerge victorious from the strife in the country’.[18] The same media outlet proceeded to quote a former Brotherhood member:

   “Sudan faces a very intricate situation, especially when it comes to the Muslim Brotherhood,”… “The Islamist movement controlled the deep state in Sudan for 30 years under al-Bashir and now they continue to be everywhere inside Sudanese institutions.”[19]

   [18] The Arab Weekly, ‘Sudan likely to hand over Muslim Brotherhood members to Egypt’, 9 June 2019

   [19] The Arab Weekly, ‘Sudan likely to hand over Muslim Brotherhood members to Egypt’, 9 June 2019

   124.   The same article notes that Sudan’s transitional government was preparing to deport hundreds of Brotherhood members who had previously fled Egypt.[20]

   [20] The Arab Weekly, ‘Sudan likely to hand over Muslim Brotherhood members to Egypt’, 9 June 2019

   125.   Thirdly, numerous sources indicate that the post-2019 transitional government has introduced laws supporting greater religious freedom and, specifically, repealing apostasy laws, such that the culture of targeting those who assisted conversion has changed. The majority of sources assess that the situation for Christians – as part of a broader transformation in religious freedom in the country – has improved under the transitional government, though note the situation requires ongoing monitoring, attention and further improvements, particularly in areas of ongoing conflict.

   126.   In September 2019, newly-appointed Prime Minister Abdalla Hamdok declared that his administration would address ‘religious discrimination’, with the minister for religion inviting Jews and Christians who had left the country to return.[21] The Minister proceeded to state that the country was ‘pluralistic in thought, culture, ideology, and religion’ and said that the government would return confiscated properties to Christian churches. He acknowledged that Christians had ‘experienced “persecution” and “very bad practices” during the previous administration’ and told international press that ‘he would fight terrorism, extremism and “takfiri” ideology that calls for those who leave Islam to be punished’.[22]

   [21] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summ

   [22] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summ

   127.   The United States Department of State (USDOS) international religious freedom report for Sudan published in June 2020 contains a summary of changes under the transition regime:

   On August 17, following the April ouster of President Omar al-Bashir after months of popular protests and a military takeover, the Transitional Military Council (TMC) and the opposition coalition, known as the Forces of Freedom and Change (FFC), signed an interim constitutional declaration that includes several provisions protecting the right to freedom of religious belief and worship “in accordance with the requirements of the law and public order.” It makes no reference to sharia as a source of law, as was the case under the former 2005 constitution. The FFC announced that laws promulgated under the former constitution would remain in effect while the civilian-led transitional government (CLTG) worked to amend or abolish those laws and pass new legislation within the framework of the interim constitutional declaration. Some of the laws and practices established by the Bashir administration were based on its government’s interpretation of a sharia system of jurisprudence, which human rights groups stated did not provide protections for some religious minorities, including minority Muslim groups.[23]

   [23] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summary

   128.   More recently, the US Commission on International Religious Freedom reported in April 2021 that ‘Sudan continued to make significant steps toward improved religious freedom conditions in 2020’, citing the adoption of the Fundamental Rights and Freedoms Act and the abolition of the guardianship law requiring women to obtain a permit from a male guardian when travelling abroad with their children as reasons for their assessment.[24]

   [24] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2021', 21 April 2021

   129.   In its April 2021 World Report, Aid to the Church in Need (ACN) provides positive endorsement for the work of the transitional government regarding religious freedom in Sudan, heralding it as a ‘new era’:

   The New Transitional Government of Sudan heralds a new era for religious freedom in the country. The Minister of Religious Affairs and Endowments, Nasredin Mufreh, issued a public apology to Sudanese Christians “for the oppression and harm inflicted on your bodies, the destruction of your temples, the theft of your property, and the unjust arrest and prosecution of your servants and confiscation of church buildings.” At present, the government has officially expressed its intention to re-establish the values values of religious coexistence that existed before al-Bashir’s Islamist regime.

   Under its new rulers, Sudan declared Christmas a national holiday which it hadn’t been since the secession of South Sudan. Christians marked the occasion by taking to the streets in the capital for a “March for Jesus”, singing and sharing the Gospel message on banners, a tradition outlawed under Bashir’s government.[25]

   [25] Aid to the Church in Need (ACN ), ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021, Sudan Country Chapter

   130.   There are however some ongoing concerns, particularly in relation to the conflict zone of Darfur:

   Violations of religious freedom, however, continue to occur. The situation in the south-western region of Darfur is particularly worrying. Even though the government has taken positive steps towards religious freedom in the country, it remains to be seen how the situation will evolve during the ongoing transition.[26]

   [26] Aid to the Church in Need (ACN ), ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021, Sudan Country Chapter

   131.   In March 2021, Christian Solidarity Worldwide (CSW) released a general update on Sudan. CSW cited ‘some limited positive developments’ in 2020. Explaining their assessment, CSW noted:

   In May 2020 the government announced the creation of an independent national commission for religious freedom and a Ministry for Peace and Human Rights.

   In October a criminal court in Omdurman dismissed all charges against eight leaders of the Sudanese Church of Christ (SCOC) who were initially arrested on 23 August 2017 for refusing to hand over administrative control to a government-appointed and unelected church committee led by Mr Angelo Alzaki. However, the committee was still in control in February 2021 despite the Supreme Court decision that ordered its dissolution.

   In December the Governor of Gezira state, Abdalla Ali Ahmed Idriss, authorised the construction of four church buildings on empty land. The last time land was apportioned for church construction was after the signing of the 2005 Comprehensive Peace Agreement, when a South Sudanese minister granted land to the Apostolic Full Gospel Church.

   While these developments are welcome, Sudan continues to face multiple human rights and FoRB [Freedom of Religion or Belief] concerns which must remain under intense international scrutiny. There are also concerns that courts do not consistently implement change, with reports of individuals being convicted for ‘crimes’ that had been removed from the Criminal Code.[27]

   [27] Christian Solidarity Worldwide, ‘General Briefing: Sudan’, 1 March 2021

   132.   CSW also reported on a small number (three) of attacks on church property in both Khartoum and conflict areas throughout 2020 and into 2021, and one incident in which a Christian man was killed and several others injured by a ‘mob of young men shouting “Allah Akbar” in the Shagla area of Omdurman’.[28]

   [28] Christian Solidarity Worldwide, ‘General Briefing: Sudan’, 1 March 2021; Christian Solidarity Worldwide, ‘Sudan: Submission to the 39th session of the UN Universal Periodic Review’, 21 March 2021, and for a detailed report of the killing of a Christian: Church Leaders, ‘Christians Attacked in Sudan after Incitement by Mosque Leaders in Khartoum’, 30 June 2020

   133.   However, a December 2020 European Parliament assessment found that ‘[c]onditions have improved for minorities to exercise religious freedom, and the harassment and arbitrary detention of ordinary citizens by intelligence officers have largely ended’.[29]

   [29] Quoted in ‘Sudan: Opposition to the government’, UK Home Office , April 2021, para.3.4.3, p.22, 20210427154201

   134.   In April 2021, the US Commission on International Religious Freedom (USCIRF) removed Sudan from its Special Watch List (SWL), concluding that:

   although religious free­dom concerns remain… conditions during calendar year 2020 did not meet the high threshold required to recommend SWL status. As previously discussed, a SWL recommendation is based on USCIRF finding that the government perpetrated or tolerated severe religious freedom violations, meaning violations that meet two of the elements of IRFA’s systematic, ongoing, and egregious test.[30]

   [30] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2021', 21 April 2021

   135.   As reported in the previously referenced ACN report, a peace agreement reached between the transitional government and rebel groups in August 2020 provides for the creation of a national commission for religious freedom that is intended to protect the rights of Christians in the country. According to ACN, the agreement also embeds principles of the separation of religion and the state.[31]

   [31] Aid to the Church in Need (ACN ), ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021, Sudan Country Chapter

   136.   Freedom House’s 2020 report noted improvements for Christians under the Transitional Sovereign Council (TSC), including the appointment of a Coptic Christian to the Transitional Sovereign Council:

   Sudan is 97 percent Muslim, with a small Christian minority. Under al-Bashir, Christians were persecuted and churches were shuttered, often under the pretext that they lacked appropriate permits. Sudanese repression of Christian groups accelerated after the conflict in Darfur escalated, and NGOs that supported this minority were forced out of the country.

   The TSC’s [Transitional Sovereign Council] interim constitution, by contrast, has enshrined freedom of worship, and notably did not identify Islam as the country’s preferred religion. The TSC also agreed to issue clear guidelines for those seeking planning permission for new churches, and overruled a Khartoum State regulation forcing Christian schools to hold classes on Sundays. Christians also welcomed the appointment of a Coptic Christian judge to one of the TSC’s civilian seats.[32]

   [32] Freedom House, 'Freedom on the Net 2020 - Sudan', 14 October 2020

   137.   In September 2020, reporting on the human rights situation in Sudan between 3 June and 8 September 2020, the UN Security Council noted that:

   [i]In upholding its commitment to improving the justice system and reforming national laws in compliance with international standards, the Joint Council – the current transitional legislative body in the Sudan – in July adopted several amendments to the penal code of 1991. The adoption constituted significant progress towards achieving the goals of the transition until a new penal code could be adopted as indicated in the Constitutional Declaration. The latest amendments improved the legal protection for the most vulnerable categories of people, including […] combating discrimination and promoting respect for the freedom of religion and belief by decriminalising apostasy”.[33]

   [33] , United Nations Security Council (UNSC), ‘Report of the Secretary-General on the situation in the Sudan and the activities of the United Nations Integrated Transition Assistance Mission in the Sudan - S/2020/912’ 17 September 2020

   138.   In July 2020, the transi­tional government adopted the Fundamental Rights and Freedoms Act which repealed the apostasy law.[34]

   [34] United States Commission on International Religious Freedom (USCIRF), 'United States Commission on International Religious Freedom Annual Report 2021', 21 April 2021, p.4

   139.   Christian Solidarity Worldwide (CSW) clarify that the repealed apostasy law was replaced with a provision that outlawed declaring a Muslim an apostate:

   The government also announced the cancellation of Article 126 of Criminal Code, officially abolishing the death penalty for apostasy and replacing it with a new article criminalising “Takfir” – declaring a fellow Muslim an apostate.[35]

   [35]Christian Solidarity Worldwide, ‘Sudan: Submission to the 39th session of the UN Universal Periodic Review’, 21 March 2021

   140.   In August 2020, NGO World Watch Monitor (WWM) reported that despite the abolition of Sudan’s apostasy law in June 2020, a group of 29 Sudanese NGOs claimed that its transitional government’s amendments to many of its laws did not go far enough.[36]

   [36] World Watch Monitor, ‘NGOs say changes to Sudan’s Islamic laws don’t go far enough’, 18 August 2020

   141.   In an undated article from 2020, Christian organisation Open Doors notes both improvements in the situation for Christians since the shift to the TSC and ongoing ‘persecution’ of Christians, specifically highlighting those with Muslim backgrounds. According to Open Doors:

   Though Sudan has taken significant steps towards religious freedom in the past year, including a commitment to end 30 years of Islamic law, Christians from a Muslim background still face extreme persecution from their families and communities. These believers no longer face the death penalty for leaving Islam, but may be attacked, ostracised or otherwise discriminated against if their faith is discovered. Church buildings are often attacked or even demolished.

   Sudan’s economy was already unstable before Covid-19 hit. Now, Christians from a Muslim background are particularly vulnerable – most don’t have access to essential support from their family and community.

   Sudan has made great progress towards religious equality this year, but it will take much longer to change the stigma and opposition faced in everyday life by Christians who have left the faith of their families and ancestors.[37]

   [37] Open Doors, ‘Sudan’, , 2020

   142.   On societal relations, the USDOS stated that ‘[i]ndividual Muslims and Christians reported generally good relationships at the societal level and stated that instances of intolerance or discrimination by individuals or nongovernmental entities were generally isolated’.[38]

   [38] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summ

   143.   The previously mentioned ACN report quotes Bishop Andali of El Obeid who stated that during the measures implemented to halt the spread of coronavirus, ‘Christians were considered on the same level as Muslims’ in terms of the precautions being taken. The Bishop also stated that no clashes were reported because of the fear of COVID-19.[39]

   [39] Aid to the Church in Need (ACN ), ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021, Sudan Country Chapter

   144.   In its April 2021 World Report, Aid to the Church in Need (ACN) indicated that despite the new legal provisions around religious matters, concerns persist on issues such as conversion and proselytising:

   Despite the formal recognition of religious freedom expressed in the constitution, issues like conversion, apostasy, blasphemy, proselytising and other “religious offences” are areas of serious concern for Sudan’s government and legislators.[40]

   [40]Aid to the Church in Need (ACN ), ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021, Sudan Country Chapter

   145.   ACN elaborate on their concerns as follows, although not specifically referencing ‘proselytising’:

   Apostasy, conversion from Islam, religious discrimination and other controversial religious matters rarely reach the Constitutional Court and are handled instead in lower courts in accordance with laws and procedures based on Islamic jurisprudence. This leaves those suspected of acting against Islamic norms largely unprotected before the law and with little access to impartial courts.[41]

   [41] Aid to the Church in Need (ACN ), ‘Religious Freedom in the World Report 2021 – Sudan’, 20 April 2021, Sudan Country Chapter

   146.   Nonetheless following the abolition of apostasy laws in mid-2020, several Christian sources indicated that the changes appeared to represent hope for change:

   The Christian Post reported that the amendments give “Christians hope for the future following the toppling of the Islamist regime of President Omar al-Bashir”. In response Faith McDonnell, the director of religious liberty programs and the Church Alliance for a New Sudan at the Washington, D.C.-based Institute on Religion & Democracy, told The Christian Post that “it appears Sudan’s new transitional government is working to change things”.[42]

   [42] Asylum Research Centre (ARC), ‘Sudan: Country Report - The situation in South Kordofan and Blue Nile – An Update (3rd edition with addendum)’, March 2021, Sect 5.2.1, p.111

   147.   Fourthly, as discussed with the applicant at hearing there is no evidence of current mistreatment of Coptic Christians. The USDOS international religious freedom report for Sudan (2020) makes few references to Coptic Christians, and none indicating hostility towards them. The report notes that: a Coptic Christian was appointed to the transitional government;[43] relatively small but long-established groups of Coptic Orthodox and Greek Orthodox Christians reside in Khartoum, El Obeid in North Kordofan, River Nile and Gezira States, and eastern parts of the country;[44] ‘since 2017 all schools except Coptic Christian schools were required to operate from Sunday to Thursday’;[45] and of the few Christians who held seats in the al-Bashir (previous regime) government, the majority were Coptic Christians.[46]

   [43] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summ

   [44] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summary

   [45] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summary

   [46] US Department of State, '2019 Report on International Religious Freedom: Sudan', 10 June 2020, Exec. Summary

   148.   Christian Solidarity Worldwide’s March 2021 general update on Sudan contains no mention of hostility or other mistreatment specific to Coptic Christians.[47]

   [47] Christian Solidarity Worldwide, ‘General Briefing: Sudan’, 1 March 2021

   149.   These country sources were discussed broadly with the applicant at the Tribunal hearing. She agreed that Coptic Christians can practise freely. However, she said that the Muslim Brotherhood has a network all over the world and can locate any information they wish to find. She said that she does not feel safer under the new regime as the problem is with certain individuals, who are criminals. She said that some people were killed, and no-one did anything for them. She said that the problem is one of vengeance. She said that the government has ‘nothing to do’ with her case. She said that the Brotherhood subjects people to torture first. They remove nails and shock them with electricity.

   150.   The representative submitted that the government has not eliminated the power of the Muslim Brotherhood entirely. It was submitted that the applicant would be at risk of serious harm all over the country due to her age and health and history, not only in Khartoum, but also other parts. The representative said that the Brotherhood monitored the applicant’s son five years after he left, so it could be assumed that she would still be targeted. It was submitted that her relatives have told her not to go back as they do not want her to bring trouble. They feel that she is a risk.

   151.   The Tribunal has considered these submissions but is not satisfied that the applicant faces a real chance of serious harm either from official members of the Muslim Brotherhood, or from people who were involved at the time she lived in the country who seek vengeance. As set out in the country sources referred to above, the power of the Muslim Brotherhood has greatly reduced since the new regime in 2019 including the ability of members to act with impunity, and there is far greater tolerance and protections for Christians including those who convert others. While there are incidents of discrimination, violence and societal ostracism of converts by families, the information indicates that the environment is very different to the one she lived in in 2015. Given that the individuals she claimed were trying to locate her have not harmed other family members in either Khartoum or Port Sudan, the power of the Muslim Brotherhood has been reduced dramatically, and given the new more tolerant environment in Sudan the Tribunal is not satisfied that there is a real chance, in the sense of a substantial or non-remote chance[48] that they would harm the applicant if she returned to Sudan in the reasonably foreseeable future for reasons of her religion.

   [48] Chan v MIEA (1989) 169 CLR 379

   152.   In AGA16 v MIBP [2018] FCA 628 the Court accepted the appellant’s proposition that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities. In making these findings, the Tribunal has taken into account the applicant’s particular vulnerabilities, her age, and her physical and mental health. Even given these vulnerabilities, the Tribunal is not satisfied that there is a real chance of serious harm for reasons of her religion, for all the reasons set out above.

   153.   The Tribunal is satisfied that if the applicant returned to Sudan, this would cause her psychological harm, based on the experiences she has had in the past, and her general mental health. While it would be very difficult for her to return to Sudan given the trauma in the past, the Tribunal is not satisfied that any psychological harm she would suffer would be for any of the reasons set out in the legislation, rather it would be from past harm. Furthermore, under the legislation, persecution must involve systematic and discriminatory conduct.[49] Systematic and discriminatory conduct is conduct which is deliberate rather than random and applied discriminatorily for one of the reasons set out in the legislation. The Tribunal is also not satisfied that there would be any persecution involving systematic and discriminatory conduct were she to return, in that there would be no intentional persecution motivated by a desire to harm the applicant.

   [49] S.5J(4) of the Act

   154.   In Chan v MIEA,[50] McHugh J suggested in his reasoning that it was not enough that there be fear of being involved in ‘incidental violence as a result of civil or communal disturbances’: The Tribunal is not satisfied that there is a real chance of serious harm due to civil disturbance or crime as this would involve incidental violence, rather than systematic and discriminatory conduct.

   Persecution must relate to all areas of the country

   [50] Chan v MIEA (1989) 169 CLR 379

   155.   The Tribunal notes further that even if the Tribunal were wrong and there was a real chance of serious harm in Khartoum, the applicant has said that her family in Port Sudan are safe from extremists. She was asked why she could not stay with her family and be safe in Port Sudan. She said that they said that they would track her down and they would find her. The Tribunal does not accept that extremists would track her down in Port Sudan, given the safety of her family there, the passing of time and the new more tolerant environment in Sudan.

   The health system

   156.   The Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of inadequacies in the health system in Sudan. The persecution feared must be for one or more of the reasons mentioned in s.5J(1)(a) of the Act – that is, race, religion, nationality, membership of a particular social group or political opinion. That reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution. In Applicant A v MIEA (1997) 190 CLR 225, Gummow J observed that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. In MIMA v Haji Ibrahim 204 (2000) CLR 1, McHugh J similarly emphasised that the Convention requires the decision-maker to ascertain the motivation for the allegedly persecutory conduct which an applicant for refugee status fears.

   157.   The Tribunal is not satisfied that any harm suffered due to inadequacies in the health system would be for any of the stated reasons, rather, it would be due to under-resourcing and lack of funding.

   158.   The Tribunal is not satisfied therefore that there is a well-founded fear of persecution due to inadequacies in the health system.

   Findings in relation to the refugee criteria

   159.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were she to return to Sudan in the reasonably foreseeable future.

   Does the applicant meet the complementary protection criteria?

   160.   If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).

   161.   ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

   162.   Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance of serious harm from former or current Muslim Brotherhood members, for reasons set out earlier. For the same reasons, on the basis of MIAC v SZQRB [2013] FCAFC 33 the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation from former or current members of the Muslim Brotherhood. The Tribunal is also not satisfied, given country sources referred to earlier, that there is a real risk of any of the kinds of significant harm set out in the legislation, on the basis of the applicant’s Coptic Christian religion.

   163.   The Tribunal has considered whether there is a real risk of any of the kinds of significant harm set out in the legislation, as a result of inadequacies in the health system or standard of living, or general civil disturbance. The Tribunal, in making these determinations, has considered the applicant’s particular vulnerabilities, her age, her fear, and her mental and physical health ailments. She has major heart issues, hypertension and diabetes as well as post-traumatic stress disorder, anxiety and depression and has had a number of hospital admissions.

   164.   The Tribunal acknowledges that the applicant is settled in Australia, having lived in the country since 2015. She has the support of her daughter, son and son-in-law in Australia, and has a grandchild with whom she lives. There is no doubt that she feels cared for in Australia, with its superior health system. However the task of this Tribunal is to ascertain if there is a real risk of significant harm in Sudan, not whether the quality of life for the applicant is higher in Australia.

   165.   The Tribunal acknowledges that in Sudan over 9 million people face severe hunger, there is poor sanitation, and millions of people in humanitarian crisis.[51] There is a severe shortage of drugs and medicines. Since the start of the COVID-19 pandemic in Sudan in mid-March 2020, the government confirmed that 29,542 people contracted the virus, including 2,003 who died from the disease, as of 20 March 2021.[52] Human Rights Watch has confirmed that the first year of a three-year transition to democracy since the ouster of President Omar al-Bashir in 2019 has seen a failing economy, continuing inter-communal violence in Darfur and eastern Sudan, and protests for justice and reforms, which have progressed slowly.[53]

   [51] OCHA, Sudan the country continues to face the health and humanitarian consequences of COVID-19, 25 March 2021

   [52] OCHA, Sudan the country continues to face the health and humanitarian consequences of COVID-19, 25 March 2021

   [53] Human Rights Watch, Sudan Events of 2020, World Report 2021: Sudan | Human Rights Watch (hrw.org), 2021

   166.   The 2005 Interim National Constitution states that the government is responsible for the provision of universal and free-of-charge basic health care. However, a lack of capacity and resources means that Sudanese overall have poor access to health care and poor health outcomes, particularly outside major urban centres. Sudan ranks 170 out of a total of 189 countries on UNDP’s 2020 Human Development Index with an average life expectancy at birth of 65.3. Fifty two per cent of the country are reported as being in multidimensional poverty.[54]

   [54] United Nations Development Program, Human Development Index, Sudan  According to the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) in 2021:

   Approximately 81 per cent of the population do not have access to a functional health centre within two hours of their home and the situation is getting worse, as many clinics are closing during the pandemic. In Khartoum State alone, nearly half of the health centres closed during the pandemic, and Darfur had already closed a quarter of their facilities in 2018 due to lack of funds and staff. Sudan has only 184 beds in intensive care units (ICU) and approximately 160 of them have ventilators, according to WHO. Across Sudan, clinics and hospitals lack critical medicines, as they can no longer afford to stock them due to the economic crisis and also due to disruption in the supply chains. The situation makes it extremely challenging for the Government and aid organizations to respond to the pandemic and maintain essential services. Women and children have been especially affected. 63 per cent of the population do not have access to basic sanitation, 23 per cent do not have access to a hand-washing facility with soap and water and 40 per cent do not have access to basic drinking water services. The risk of transmissions and increased humanitarian needs are especially high amongst the nearly 2 million internally displaced people (IDP) and 1.1 million refugees living in collective sites or host communities across the country and the population living in urban slums. Before COVID-19, about 9.3 million people were already in need of humanitarian support across Sudan. Years of conflict, recurrent climatic shocks and disease outbreaks continue to affect the lives and livelihoods of many Sudanese. The situation is worsening and now over 9.6 million people are facing severe hunger, in a country with already high malnutrition rates. Because of the fragile economy, more and more people are unable to meet their basic needs, as high inflation continues to erode families’ purchasing power. An average local food basket takes up at least 75 per cent of household income.[55]

   [55] OCHA, Sudan the country continues to face the health and humanitarian consequences of COVID-19, 25 March 2021

   168.   Another source states that residents of several Sudanese states have complained about the lack and high prices of lifesaving medicines to treat chronic conditions such as blood pressure and diabetes, as well as medicines related to epilepsy and other neurological and psychological conditions. A number of patients, doctors and pharmacists told Radio Dabanga that the costs of treatment in the states are very high, and poverty and collapse of the currency put it out of financial reach of many in Sudan.[56] Other health sources also refer to the severe shortages of drugs, medicines and medical supplies, which present a major impediment to the provision of emergency healthcare services.[57]

   [56] Radio Dabanga, Chronic essential medicines unaffordable for many Sudanese, 2 August 2018

   [57] Science Direct, Public Health in Practice, Volume 1, November 2020, Drug shortage crisis in Sudan in times of COVID-19 - ScienceDirect

   169.   In order for harm to amount to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’, there must be intentional infliction of harm. There is no doubt that the applicant would face extreme difficulties in accessing medicine and medical services in Sudan for her multiple medical conditions. The inadequacies in the health system correlate to the poor state of the economy, and years of war, as discussed in the sources referred to earlier. If the applicant were to be unable to access services or medicine it would be due to underfunding and lack of resources, rather than the intentional infliction of harm. The Tribunal is not satisfied therefore that there is a real risk of significant harm in the form of cruel or inhuman treatment or punishment, or degrading treatment or punishment.

   170.   The Tribunal is also not satisfied that there is a real of risk of another category of significant harm, ‘arbitrary deprivation of life’. The complementary protection provisions were inserted into the Act in 2012 as a result of the Migration Amendment (Complementary Protection) Act 2011. The Explanatory Memorandum to the Act states that the provisions derive from Articles 2 and 6 of the International Covenant on Civil and Political Rights (ICCPR). Article 6 provides that every human being has an inherent ‘right to life’, and that no-one shall be arbitrarily deprived of life.

   171.   There is no definition in the Act of ‘arbitrary deprivation of life’. Given its ordinary meaning, ‘arbitrary’ can mean ‘subject to individual will or judgment, discretionary’. There is no express requirement for intention, however the word ‘deprived’ may import an element of deliberateness, some form of positive act, rather than general conditions of poverty or lack of facilities. The Complementary Protection Guidelines refer to arbitrary deprivation of life as also involving elements of injustice, lack of predictability, or lack of proportionality.[58] The Guidelines suggest that in order to establish a risk of arbitrary deprivation of life from a non-state actor, there must be extremely widespread conditions of violence and systemic breakdown of law enforcement, coupled with a particular risk to the individual. While the Tribunal is not bound by these Guidelines, they provide some guidance. The courts have also suggested that this kind of harm involves such matters as extrajudicial killing and excessive use of force rather than the consequences of scarce medical resources, MZAAJ v MIBP [2015] FCCA (Judge Riley, 4 February 2015).

   [58] Department of Home Affairs, PAM 3, Refugee and humanitarian – complementary protection guidelines, re-issued 21 May 2015

   172.   In D v the United Kingdom(1997) 24 EHRR 423, the European Court of Human Rights found that the removal of D, who was HIV-positive and in the final stages of illness, to his home country of St Kitts and Nevis would violate Article 3 of the European Convention on Human Rights, which has similar provisions to the complementary protection provisions. At time of hearing, D had been hospitalised and was experiencing a marked decline in health. The Court emphasised the very exceptional nature of that case, and relied upon a combination of factors to determine that D’s removal would violate Article 3. These factors included that his removal would significantly lower his life expectancy (at time of judgment expected to be less than 8–12 months were he to remain in the UK) and subject him to severe physical and mental pain and suffering as a result of his terminal illness and he had no family ties. These are not circumstances which apply to this applicant, noting that the Court held that it was only the very exceptional circumstances and humanitarian considerations of D’s case that resulted in a violation of Article 3. Later, in Ndangoya v Sweden (European Court of Human Rights, Fourth Section, Application no 17868/03. 22 June 2004), the same court observed that:

   According to established case-law aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance provided by the expelling State. However, in exceptional circumstances an implementation of a decision to remove an alien may, owing to compelling humanitarian considerations, result in a violation of Article 3.

   173.   Unlike in D v the United Kingdom (1997) 24 EHRR 423, looking at the circumstances of Ndangoya, who was HIV-positive and claiming he would not have access to necessary treatment should he be returned to Tanzania, the European Court of Human Rights concluded that his removal would not constitute a violation of the prohibition of ‘inhuman or degrading treatment’ in Article 3 of the European Convention on Human Rights. This was in circumstances where there was no indication that Ndangoya had reached an advanced or terminal stage of illness, and there was evidence of family support.

   174.   In the applicant’s case, she is not at an advanced or terminal stage of illness, and there is family support in Sudan. The Tribunal is not satisfied that there is a real risk of significant harm in the form of arbitrary deprivation of life, because of inadequate health or other services or provision of drugs, as there is no positive act resulting in death, and she does not fall into the category of exceptional circumstances found in the case of D v the United Kingdom (1997) 24 EHRR 423.

   175.   The other categories of harm, torture and the death penalty, are not relevant in this case.

   176.   There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These include where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. The Tribunal is not satisfied that the applicant would be at a real risk of significant harm due to crime or civil disturbance, as these are risks faced by the population of the country generally and not faced by the applicant personally.

   Findings on complementary protection criteria

   177.   The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sudan there is a real risk of significant harm.

   Ministerial intervention

   178.   Under s.417(1) of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest.

   179.   The Minister has issued Guidelines[59] explaining the circumstances in which he or she may wish to consider exercising his or her public interest powers under s.417, how a person may request consideration of the exercise of these powers, and informing officers of the Department when to refer a case to the Minister for consideration.

   [59] S.417 Policy – Migration Act – Ministerial Powers – Minister’s Guidelines on ministerial powers (ss351, 417 and 501J) (reissued 29 March 2016)

   180.   Having regard to the applicant’s circumstances and the Ministerial Guidelines the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

   181.   The Guidelines state that principles which underpin the discretion include a general expectation that a person who has not been granted a visa will depart Australia and that the intervention process is at the Minister’s discretion and is not an extension of the visa process. The Tribunal notes that the powers under s.417 can only be exercised by the Minister personally.

   182.   The principles also state that cases will be viewed unfavourably if a person has not complied with conditions of a previous visa or has provided false and misleading information to the Department or other authority. The Tribunal is not aware of any non-compliance or provision of false and misleading information by this applicant.

   183.   The Ministerial Guidelines indicate that the Minister will generally only exercise the discretion in cases which exhibit one or more unique or exceptional circumstances.[60] The Tribunal refers the case to the Minister on the basis of unique or exceptional circumstances, discussed more below.

   [60] S.417 Policy – Migration Act – Ministerial Powers – Minister’s Guidelines on ministerial powers (ss351, 417 and 501J) (reissued 29 March 2016)

   184.   Pursuant to the Ministerial Guidelines, cases which have compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to the person, may be brought to the Minister’s attention. The Tribunal refers this matter to the Minister on this basis. The applicant is a [age]-year-old widow. A report of her clinical social worker, [Dr Q], in May 2021 reports that the applicant suffers symptoms such as post-traumatic stress disorder, major depressive disorder and anxiety. Significantly, her clinical social worker reported that the applicant ‘finds it extremely difficult to engage in activities of daily living, such as simple self-care tasks’ and that the applicant finds it very difficult to cope with any kind of stressors, particularly emotional stress.

   185.   [Dr Q] said that the applicant ‘appears older than her stated age due to her mental condition. She is often forgetful and has great difficulty focussing on the conversation during the interview.’ She said that she ‘lives in her own little void, low self-esteem, lacks confidence. She said she feels that she can’t manage on her own.’ She stated that she ‘often remains awake due to her past traumas in Sudan and the fear of being persecuted if she were to return.’ The applicant is a widow and her ‘only real enjoyment is talking to her children and grandchildren every day. She has no other enjoyment in life and doesn’t go out at all due to her psychological conditions.’ According to [Dr Q], she finds it difficult to get out of bed in the morning, has sleep difficulties, loss of appetite, extreme fatigue, inability to adequately care for herself and her needs, heightened stress and low mood. [Dr Q] reports that because of her current mental health difficulties, she requires ongoing help and assistance to ensure she is accessing adequate care for daily living tasks, personal hygiene, food intake and emotional support. She is currently living with her daughter and her family. Her [son] helps take care of her.

   186.   As reported in medical reports dated 22 April 2020 and 12 June 2020 from A/Prof. [S] and a number of other medical and hospital records listed earlier, the applicant suffers from heart failure, hypercholesterolaemia, hypertension, sciatica, diabetes and atrial fibrillation and has had a number of hospital admissions. According to her son [Mr I] she suffers from heart failure and atrial fibrillation ‘triggered heavily by anxiety’. He said that she had a severe episode of atrial fibrillation in April 2020 and was admitted to hospital. Dr [U], her cardiologist, has said that she is ‘quite symptomatic’ and that if not cautiously monitored, or left untreated, her heart failure could lead to serious life-threatening consequences such as pulmonary oedema and could be fatal.

   187.   The Tribunal refers this case to the Minister on the basis that it appears from the medical reports that the applicant’s conditions, if not recognised would result in serious ongoing and irreversible harm and continuing hardship to her, given that she has limited ability to function on her own already and the health services and living conditions would be poor in Sudan. As set out in paragraphs 165 to 168 of this decision, in Sudan over 9 million people face severe hunger, there is poor sanitation, and millions of people in humanitarian crisis.[61] There is a severe shortage of hospitals, doctors, drugs and medicines, including specifically diabetes medication.  Given that she suffered significant trauma in Sudan, her psychological state is likely to deteriorate significantly if she were to return to Sudan and it is unlikely that the health system in Sudan could provide the kind of care and monitoring needed for her serious conditions.

   [61] OCHA, Sudan the country continues to face the health and humanitarian consequences of COVID-19, 25 March 2021

   CONCLUDING PARAGRAPHS

   188.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   189.   Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   190.   There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).

   191.   The Tribunal refers the matter to the Minister for consideration pursuant to s.417 of the Act.

   DECISION

   192.   The Tribunal affirms the decision not to grant the applicant a protection visa.

   Jane Marquard
   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.

   …

   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.

   …

   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.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   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 the 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.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (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.

   …

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Citations

1721007 (Refugee) [2021] AATA 3310

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

Re Hillsea Pty Ltd [2019] NSWSC 1152

Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17

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