2008399 (Refugee)

[2024] AATA 4426

2008399 (Refugee) [2024] AATA 4426 (27 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Karyn Anderson

CASE NUMBER:  2008399

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Kylie Allen

DATE:27 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 27 September 2024 at 9:14am

CATCHWORDS

REFUGEE – Protection Visa – Sudan – religion – Coptic Christian – Sharia law is enforced in Sudan – a member of the minority ethnic and religious group of Coptic Christians – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 46, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Sudan, applied for the visa on 15 September 2016. The applicant attended a protection visa interview with the Department. Based on the available country information at that time, the delegate refused to grant the visa on the basis that the applicant was not owed protection.

3. The applicant was represented in relation to the review.

4. The applicant’s representative provided extensive submissions, evidence and country information in support of a request for a favourable decision ‘on the papers’ given the developments in the country information since the original decision. This request was considered and granted by the Tribunal.

   CLAIMS AND EVIDENCE

   Protection visa application

5. The applicant lodged his protection visa application on 15 September 2016. His claims include the following:

   ·     He was born in [year] and lived in Khartoum. His usual occupation is an [occupation].

   ·     He was born a Coptic and he continues to be a committed member of his Christian faith.

   ·     He arrived in Australia with his parents on [date] August 2016, and he previously travelled with his parents to Australia in November 2015. He reluctantly returned to Sudan after he last travelled to Australia to visit his terminally ill grandmother who passed away after he arrived.

   ·     The Christian minority in Sudan are subjected to discrimination and persecution by the Muslim majority and the government.

   ·     As a devout Christian, he is not legally permitted to preach to Muslims or display any religious ornaments including a tattoo of the crucifix. If he returns to Sudan and the tattoo of the crucifix on his [body] is discovered he is liable to be publicly flogged and the tattoo removed with acid.

   ·     His mother is a Jehovah’s Witness and despite the fact that he is a Coptic Christian he is often accused or suspected of being a Jehovah’s Witness the religion of his mother.

   ·     As a committed Christian he adheres to the Gospel tenant of preaching. However, in the Sudan there are criminal penalties for preaching to Muslims.

   ·     There are other restrictions placed on Christians including limitations in the construction of churches and restrictions on Christian outreach activities including Christian charity work.

   ·     Christians who are suspected of encouraging apostates are killed or publicly flogged.

   ·     Reading in public or disseminating the Bible or other Christian material is strictly forbidden and perpetrators are publicly flogged.

   ·     Incidents of attacks on Christians and Christian places of worship have escalated dramatically in Sudan due to the permeation of radical Islamic ideology.

   ·     The Islamic government seeks to control the entire Christian population in Sudan by enacting disproportionately restrictive laws on Christian worship and subjugating all Christians to live under Sharia law which is not compatible with Christianity.

   ·     He objects to Sharia law restrictions in relation to a range of matters including working days; all matters relating to marriage divorce, custody and other family matters; food; dress; alcohol and behaviour.

   ·     New churches are not permitted to display the crucifix, and old churches are not permitted to repair or replace the crucifix which can be seen outside church buildings.

   ·     The applicant and his family have witnessed a marked deterioration in situation for Christians in the past 2 years.

   ·     He is seeking protection in Australia as he will be persecuted for reasons of religion if he returns to the Sudan.

   Protection visa interview

6. On 16 September 2019, the applicant attended a protection visa interview with the Department. At that interview, the applicant advised the following:

   ·     He lives in Sydney with his parents and his eldest sister and her family. He also has a married younger sister in Sydney and he is employed.

   ·     He travelled to Australia in November 2015 to attend the wedding of his younger sister. He returned to Australia on [date] August 2016 to attend the wedding of the brother of his brother-in-law. He returned to the Sudan on [date] December 2015 due to the death of his grandmother [in] November 2015.

   ·     He presented a photograph he had taken in 2014 of a wall near his workplace in Sudan. The photo displayed a wall with a sticker containing an Arabic message which translated to “they are disbelievers” and he said this referred to Christians. He said that these messages are posted everywhere in Sudan particularly during Christmas and New Year and they are likely from Sunni Muslim extremists.

   ·     He completed [a] degree in the Sudan and from 2010 until 2016 he was employed in company which provided [services] to [a workplace] in Khartoum. He resided in an apartment in Khartoum with his parents and sisters. The apartment is owned by his family and it is currently unoccupied. He owns land in Khartoum which he intended for a residential purposes.

   ·     The Sudanese government was very strict and he was not able to celebrate a party without a licence. Alcohol was prohibited and he drank privately in his home. For enjoyment he watched movies on the internet. He did not have personal relationships with women due to the law.

   ·     He does not like the restrictions on his life and religion as a result of Sharia law.

   ·     He is seeking protection in Australia for the following reasons: he is a Coptic Christian, Sharia law is enforced in Sudan and he has a tattoo of a cross on his [body].

   ·     He attends a Coptic Orthodox Church in Sydney once or twice a month. He cannot go more often because he attends [college].

   Protection visa decision

7. On 8 May 2020, the delegate made a decision to refuse the applicant a protection visa on the basis that he would not face a real chance of persecution now or in the foreseeable future and as such he was not owed protection.

   Application to Tribunal

8. On 18 May 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

   Submissions to Tribunal

9. On 2 August 2024, the applicant’s representative advised the Tribunal that they also act for the applicant’s older sister, her husband and 2 children. The parties requested that their matters be heard together as there is significant overlap in their claims and evidence and that they would otherwise be witnesses for each other. This request was granted.

10. On 26 August 2024, the applicant’s representative provided combined submissions to the Tribunal for the applicant as well as his sister and her family with a number of attachments including:

    ·     A submission requesting a favourable ‘decision on the papers’. The submission includes arguments about the ongoing conflict and humanitarian crisis in Sudan. It is argued that it is extremely clear on the face of the country information alone that the review applicants would face a real chance of experiencing persecution, or significant harm, should they be returned to Sudan. Generalised violence is rampant throughout the country and reports confirm the targeting of Sudanese Coptic Christians and their churches. The review applicants’ neighbourhood has largely been destroyed; their neighbours have all fled and they do not even know if they have a home to return to. Moreover, the country is experiencing an extremely dire humanitarian crisis, with ingoing and increasing food scarcity throughout the country, directly caused by the actions of the Rapid Support Forces (RSF) and the Sudanese Armed Forces (SAF), who have been found to have repeatedly and deliberately blocked aid efforts and used food scarcity as a weapon of war. Sudan is without any doubt in crisis and the review applicants could not safely live there.

    The submission reiterated and expanded on the applicants claims and grouped the claims as follows:

    -Humanitarian crisis - As a result of the escalation in violence and the ongoing security and humanitarian crisis in Sudan the applicants fear harm, including death or serious injury, kidnapping, rape or sexual assault, either through targeted attacks or generalised violence. Reports also indicate that basic goods and services are limited in Khartoum, the water supply has been disrupted and most of Khartoum does not have access to water, with electricity and communication services being unreliable or, in some areas, unavailable. Health services are also limited, with many hospitals either closed or unable to fully function. The applicants therefore also fear serious harm in the form of significant economic hardship that threatens their capacity to subsist and/or denial of access to basic services where that denial threatens the person’s capacity to subsist, or the denial of capacity to earn livelihood of any kind, where that denial threatens the person’s capacity to subsist.

    -Gender based violence – The applicant’s sister and niece fear experiencing gender-based violence in Sudan.

    -Religion - The review applicants are all practicing Coptic Christians. They are easily recognisable as they each have a cross tattoo [which] is often/usually visible and difficult to hide. The review applicants each often wear a cross necklace which is an important symbol of their religion. They are not able to freely practice their Christian faith in Sudan due to their fears of experiencing serious harm. Further, being identified as Christians would expose them to discrimination and place them at a higher risk of harm at the hands of the RSF during the ongoing conflict in Sudan. Their religious community has largely fled Sudan and many churches in Khartoum have been raided and/or destroyed.

    ·     Country information about the humanitarian situation and conflict in Sudan:

    -UNHCR, “External Update #50 – Sudan Situation”, 21-28 February 2024

    -UNHCR, “External Update #74 – Sudan Situation”, 9-15 August 2024

    -Australian Outlook, “The UN's Latest Report on Atrocities in Sudan Deserves the International Community’s Attention and Action”, 31 Jan 2024

    -Human Rights Watch, “Sudan Conflict Fuels World’s Largest Internal Displacement - Devastating Human Toll of Conflict Should Prompt Action” 31 Jan 2024

    -UNHRC, “Sudan: UN expert raises alarm at dire human rights situation”, News and Press Release, 12 July 2024

    -MSF, “Sudan: Violence forces MSF to evacuate team from Turkish Hospital in Khartoum”, News and Press Release, 10 Jul 2024

    -Govt.Australia, “Humanitarian Assistance to the Horn of Africa Region”, News and Press Release 22 Jun 2022

    -UNICEF, “Humanitarian Situation Report No.18 Sudan 1-30 April 2024” 28 May 2024

    -UNFPA, “Sudan Situation Report Update No.13”, 27 May 2024

    -UNOCHA, “2024 Demands Swift Action to Stem Sudan’s Ruinous Conflict Statement by Martin Griffiths, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator”, 4 January 2024

    -TRT World, “Sudan faces acute hunger, mass displacement in 15-month civil war”, 2024

    -Associated Press, “Independent UN experts accuse Sudan’s warring parties of using starvation as weapon”, 27 June 2024

    -“End of mission statement by the Designated Expert on human rights in Sudan of the UN High Commissioner for Human Rights, Mr. Radhouane Nouicer”, 12 July 2024

    -The New York Times, “A Catastrophic Civil War in Sudan”, 15 August 2024

    -International Crisis Group, “Halting the Catastrophic Battle for Sudan’s El Fasher”, 24 June 2024

    ·     Country information about the use of gender-based violence in the conflict:

    -World Relief, “Women Face Crisis in Sudan”, News and Press Release, 15 Jul 2024

    -Sudan Tribune, “SIHA renews call for gender-responsive protection amid fresh reports of sexual violence in Sudan”, 5 July 2024

    -Deutsche Welle, “Rape is being used as a weapon of war in Sudan”, 7 February 2024

    -Human Rights Watch, “Khartoum is not Safe for Women!”, 2 July 2024

    ·     A letter of support from Fr [A] of the [church] dated 7 August 2024. It confirms that the applicants are members of the Coptic Orthodox Church and describes their activities.

    ·     A letter of support from the President of [an] Organisation recognising the applicants as part of the community.

    ·     Screenshots of a [social media] post, dated 14 May 2023, depicting photos of injuries incurred after RSF forces attacked worshippers in the Coptic church in Al-Masalema neighbourhood, Omdurman, and attaching photos of several people who were injured.

    ·     A video published on [social media] on 6 April 2024 shows damage to Coptic churches in Omdurman, Sudan.

    ·     A video on [social media] which shows the effects of destruction and devastation on the graveyard of a church in Omdurman, which was targeted by the RSF.

    ·     A video accessed through social media, which shows a man who is talking about Copts and Rashida (a different tribe in Sudan) and the promises and plans to remove them from Sudan.

    ·     Country Information about the treatment of Christians in Sudan:

    -Reuters, “Witnesses recount gunmen's raid on church in Sudan's capital”, 19 May 2023

    -Christianity Today, “Khartoum Churches Damaged as Sudan Descends Closer to Civil War”, 2 May 2023

    -Independent Catholic News, “Sudan: Rebel forces occupy Coptic Monastery in Wad Madani”, 20 Dec 2023

    -“National Council of Churches in Australia - Newsletter” June 2023

    -Persecution.org “Christian Church Bombed in Sudan” 21 Nov 2023 Omdurman

    -The Tahrir Institute for Middle Eastern Policy, “The Forgotten War on Sudan’s Christians”. 9 May 2024

    ·     Statutory Declaration of the applicant dated 26 August 2024, to update his claims to account for the most recent security and humanitarian situation.

    CRITERIA FOR A PROTECTION VISA

11. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

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

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

15. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

16. 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether the applicant is owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration along with the applicant’s sister and her family’s application and therefore this decision relies on similar reasoning.

18. The applicant claims to be a Coptic Christian from Khartoum in Sudan. In support of his claimed identity he provided his Sudanese passport. Based on this documentation and his account of his life in the protection visa interview, the Tribunal is satisfied that the applicant is a national of Sudan and that Sudan is his receiving country. The applicant previously resided in Khartoum and the Tribunal has given particular consideration to the situation for Sudanese nationals returning to Khartoum.

19. The Tribunal accepts that the applicant is a member of the minority ethnic and religious group of Coptic Christians from Khartoum and, based on information from his church and community, the Tribunal accepts that the applicant is a practising Christian and could be identified as such. The Tribunal has had regard to recent reporting about the current security and humanitarian situation in Sudan and its particular impact Coptic Christians.

20. It is reported that armed conflict between the SAF and RSF erupted on 15 April 2023. Led by General al-Burhan and General ‘Hemedti,’ respectively, fighting between the two forces initially concentrated in and around the capital, Khartoum. This involved heavy artillery fire and shelling particularly around strategic locations such as the Presidential Palace, Khartoum International Airport, the state broadcaster, and bridge over the Nile River[1]. Heavy weapons and explosives have been deployed in densely populated areas. The SAF have conducted targeted air strikes on RSF locations. A protracted conflict situation is predicted. Neither party are currently considered to be in reach of a military victory[2].

    [1] 'Military clashes in Sudan threaten to become protracted conflict following attempted coup by Rapid Support Forces', Janes, 19 April 2023; Fighting in Sudan: What we know so far', Al Jazeera, 16 April 2023; Sudan: Fighting between rival forces hits residential areas', Jake Horton and Kayleen Devlin, BBC News, 18 April 2023.

    [2] Ibid.

1. Hundreds of civilians have been killed and thousands injured in the conflict. According to the Sudan Federal Ministry of Health as of 1 May 2023, at least 550 individuals have been killed and over 4,900 injured[3]. The World Health Organisation advised on 9 May 2023, estimates indicated 604 deaths and more than 5,000 injured[4]. The actual death toll is likely to be higher. Civilians have been trapped in urban areas by heavy fighting and shelling.

   [3] ‘SUDAN Clashes between SAF and RSF - Flash Update No. 10 (6 May 2023)', United Nations Office for the Co-ordination for Humanitarian Affairs (OCHA), 7 May 2023.

   [4] 'More than 700,000 Sudanese flee homes amid violence, IOM says', Reuters, 09 May 2023,

2. UNHCR and other sources report[5] that hundreds of thousands of civilians have been forcibly displaced since the start of the conflict. Refugees have crossed into neighbouring countries of South Sudan, Chad, Ethiopia, Egypt and Central African Republic. Khartoum airport is closed, and civilians have struggled to depart the city safely with high demand for transport including buses and cars. Some have fled on foot. Civilians have travelled to the Port of Sudan to escape by boat, where conditions are reportedly deteriorating due to the thousands of displaced persons awaiting evacuation, and lack of supporting services and infrastructure for such numbers. Others have travelled to the Egyptian border where there are significant backlogs, particularly for Sudanese men aged 16 and 50 who require visas to enter.

   [5] ‘Sudan displacement doubles in one week, says IOM', UN News, 9 May 2023; ‘Sudan Situation: Regional Refugee Response Plan', UNHCR, 5 May 2023.

3. The applicant’s representative provided recent information and submissions about the security situation in Sudan and its potential impact on the applicant should he be returned. They referred to a recent New York Times article[6] which reported that “after more than a year of civil war, the toll in Sudan is heartbreaking: thousands killed, millions scattered and cities besieged or destroyed across a vast nation three times as large as France. Much of the capital lies in rubble. This month, international officials declared that part of Sudan was in a famine. At least 100 people die of hunger every day. And there are signs it could soon get much worse…The scale and intensity of destruction were startling: A conflict that started as a power struggle between rival generals has metastasized into a far bigger and messier conflagration, threatening to spread chaos across an already fragile region.”

   [6] The New York Times, ‘A Catastrophic Civil War in Sudan’, 15 August 2024

4. The applicant’s representative also provided a UNHCR update[7] published in August 2024 which reports, “The security situation in Sudan remains highly volatile, with ongoing conflicts reported across various regions, including Blue Nile, Khartoum, Sennar, Al Gezira, and North Darfur States. Increased use of heavy artillery, aerial strikes and random shelling/shooting continue to destroy public infrastructure including markets, impacting displaced populations and host communities in conflict hotspots. Attacks on humanitarian staff have reportedly increased in the Darfur States. The shortage of fuel and supplies, and related inflation have reduced the purchasing power of the vulnerable displaced people who are already impacted by the famine.”

   [7] UNHCR, ‘External Update #74 – Sudan Situation’, 9-15 August 2024

5. The applicant’s representative made reference to the Displacement Tracking Matrix[8] which reported in July 2024 that an estimated 10.6 million people were internally displaced in Sudan as of 3 July 2024, including an estimated 7.79 million who were already displaced from 15 April 2023.

   [8] >

   The applicant’s representative provided information from the US Department of State[9] which states that there have been credible reports of the following extensive list of significant human rights abuses including, “unlawful or arbitrary killings, including extrajudicial killings; enforced disappearance; cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners or detainees; arbitrary or unlawful interference with privacy; serious abuses in a conflict, including unlawful or widespread civilian deaths or harm; serious restrictions on freedom of expression and media freedom, including violence and threats of violence against journalists, unjustified arrests and prosecutions of journalists, and censorship; serious restrictions on internet freedom; substantial interference with freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental and civil society organizations; inability of citizens to change their government peacefully through free and fair elections; serious government corruption; serious government restrictions on or harassment of domestic and international human rights organizations; extensive gender-based violence, including domestic and intimate partner violence, sexual violence, child, early and forced marriage, female genital mutilation/cutting, and other forms of such sexual violence; crimes involving violence or threats of violence targeting members of national/racial/ethnic groups or Indigenous peoples such as the Massalit; laws criminalizing consensual same-sex sexual conduct between adults, which were enforced; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; and prohibiting independent trade unions or significant or systematic restrictions on workers’ freedom of association”.

   [9] U.S. Department of State, ‘Sudan 2023 Human Rights Report’ >

   The report goes on to say that “Militias affiliated with the Rapid Support Forces reportedly continued to commit killings, abductions, rape, sexual slavery, and other physical abuses and mistreatment of civilians in Darfur and across the country. Arab militias allied with the Rapid Support Forces conducted unlawful killings of ethnic Massalit civilians as they fled violence in West Darfur. Local militias maintained substantial influence and acted with widespread impunity. Intercommunal violence originating from land-tenure disputes and resource scarcity continued to result in civilian deaths, particularly in East, South, and North Darfur, as well as the Two Areas. There were also human rights abuses reported in Abyei, a region that Sudan and South Sudan both claimed. These abuses generally stemmed from local clashes regarding cattle and land between the Ngok Dinka and Misseriya Indigenous groups. Reports were difficult to verify due to access impediments. Weak rule of law persisted in Darfur, where fighting between the Sudanese Armed Forces and Rapid Support Forces, banditry, criminality, and intercommunal violence were the main causes of insecurity”.

6. The country information before the Tribunal does not point to any diminishment in the scale or the intensity of the conflict in Sudan and the Tribunal accepts that it will be ongoing and potentially get worse in the reasonably foreseeable future.

7. The Tribunal also notes reporting that the scale of the conflict has caused a significant humanitarian crisis. Media reports[10] that basic goods and services are limited in Khartoum. Damage to the water treatment system has disrupted the water supply, and as of 10 May 2023, most of Khartoum did not have access to water. Electricity and communications services are also unreliable or completely unavailable. Food is scarce as shops and markets have been forced to close. Banks have been damaged and forced to close, leaving many without access to cash. Approximately 80 per cent of hospitals are either closed or unable to fully function. Homes and businesses have been looted.

   [10] 'Sudan online banking services collapse, Khartoum suffers from scarcity of water', Dabanga, 10 May 2023; 'In Khartoum, civilians face desperate struggle to survive', Reuters, 11 May 2023; 'MTN Sudan's network down as fighting hits power supplies', Reuters, 6 May 2023.

8. The applicant’s representative provided the following information in support of the applicant’s fears resulting from the humanitarian crisis in Sudan. They provided a UNICEF report[11] from April 2024 which notes that “approximately 17.7 million Sudanese, representing more than one-third of the population, are facing severe food insecurity (IPC3+), with 4.9 million on the brink of famine. Conflict-affected regions such as Darfur, Kordofan, Khartoum, and Gezira make up nearly 90 percent of those classified under IPC4. The situation is expected to worsen during the lean season starting from April onwards”.

   [11] UNICEF, “Humanitarian Situation Report No.18 Sudan 1-30 April 2024” 28 May 2024

9. They provided a report from the International Crisis Group[12] which states that, “conditions in Sudan could hardly be more dire. The UN reports that 18 million people, more than one third of the population, face acute food insecurity. Both warring parties have hindered humanitarian efforts by impeding access to relief operations. About 90 per cent of those suffering acute food insecurity are stuck in areas of active conflict, including millions of residents in Greater Khartoum and Gezira. The two sides generally show callous disregard for civilians’ plight, with the RSF demanding sky-high fees from aid trucks at checkpoints or stealing their cargo, while the army tries to block relief in RSF-held areas, where many camps for the internally displaced and devastated towns have been unable to receive assistance’.

   [12] International Crisis Group, ‘Sudan: A year of war’ 11 April 2024, >

   The applicant’s representative provided an article from AP News[13] which highlights comments from the UN experts accusing warring parties of using starvation as a weapon of war, “Both the SAF and the RSF are using food as a weapon and starving civilians,” the experts said, “The extent of hunger and displacement we see in Sudan today is unprecedented and never witnessed before…The experts warned that famine has become imminent in the country as humanitarian aid has been blocked and harvest season was disrupted because of the war. They added that more than 25 million civilians in Sudan and those who fled the country are being starved and need urgent humanitarian assistance…The independent experts said local efforts in response to Sudan’s hunger crisis have been hampered by unprecedented violence and targeted attacks on civil society and local responders. Dozens of activists and local volunteers have been arrested, threatened and prosecuted in recent weeks, they said: “The deliberate targeting of humanitarian workers and local volunteers has undermined aid operations, putting millions of people at further risk of starvation,” they said. “Local responders are risking their health and lives and working across battle lines.” They urged both sides to “stop blocking, looting and exploiting humanitarian assistance.””

   [13] Samy Magdy, ‘Independent UN experts accuse Sudan’s warring parties of using starvation as a weapon’ AP News 27 June 2024, >

   The Tribunal accepts that the people of Sudan, across the country, are experiencing an unprecedented security and humanitarian crisis. In addition to the extensive loss of life, injuries, war crimes and displacement, key infrastructure has been destroyed leading to a lack of services such as water supply and hospital facilities and a severe food shortage. The Tribunal accepts that on his return to Sudan, the applicant would be directly impacted by the lack of infrastructure including access to essential services such as food, water, shelter and medical care.

10. The applicant is a member of a minority ethnic and religious group in Sudan. The Tribunal accepts that his community has largely fled Sudan and Christian churches have been raided or destroyed. As noted above, human rights violations against civilians are reported. The RSF are accused of raiding, looting and occupying civilian homes, primarily to embed themselves in residential areas for strategic purposes, however there are reports of residents being assaulted and questioned regarding their political or military affiliations[14]. The RSF have reportedly established checkpoints across Khartoum where they search civilians, and check mobile phones for contact with the army. Armed groups, primarily RSF soldiers, have been more broadly implicated in robberies, extortion, and assaults of civilians particularly across Khartoum[15]. In these circumstances, the Tribunal finds that the chance of the applicant being noticed and questioned by RSF soldiers is high.

    [14] ‘Sudan residents describe raids, evictions by RSF soldiers', Mat Nashed, Al Jazeera, 7 May 2023;

    [15] Ibid.

11. The applicant’s representative has provided country and other information about the situation for Coptic Christians in Sudan in support of their claim that the applicant and his family are at risk of harm – and greater risk than other Sudanese nationals – because they are practicing Coptic Christians. In particular, they refer to a report by the Tahrir Institute for Middle East policy[16], which discusses the targeting of Christian churches by both RSF and SAF forces, “The worsening situation for Christians set the scene for war crimes committed against the places of worship, as well as the grave human rights violations against freedom of religion and belief, as soon as the war broke out in April 2023. More than 165 churches have closed since the start of the war, while others have been destroyed as both the RSF and the SAF seem to have intentionally targeted churches…The attacks against churches have been systematic and widespread as they are used as part of each group’s military offensives. They are consistent with actions taken by both SAF and RSF leaders following their joint coup in October 2021, marked by the reversal of the already limited democratic gains achieved after the revolution. They are also consistent with the return of Islamists from the Bashir era and the emboldening of extremist non-state actors amid growing impunity’.

    [16] Mohamed Elnour, ‘The Forgotten War on Christians’, The Tahir Institute for Middle East policy, 9 May 2024 ,available at: >

    They also provided reports[17] on the widespread destruction and targeting of Coptic churches including, for example, the Coptic Orthodox Church in Bahri and a Coptic monastery in Wad Madani, which was then used by RSF officers as a military base. Similarly, Persecution.org reported on a Christian Church which was bombed in Omdurman, Sudan and Reuters reported on the raid of the Mar Girgis (St George) Coptic church. They submitted that the church the applicant and his family attended, Al-Shahdein (The Two Saints church), was among those destroyed. The National Council of Churches in Australia Newsletter June 2023 reports that the Coptic Orthodox Church in Khartoum had been badly affected by the conflict and that numerous bishops and priests were forced to leave Khartoum. In addition to the country information the applicant’s representative provided photo and video evidence of the destruction.

    [17] Christianity Today, ‘Khartoum Churches Damaged as Sudan Descends Closer to Civil War’, 2 May 2023; Independent Catholic News, ‘Sudan: Rebel forces occupy Coptic Monastery in Wad Madani’, 20 December 2023; ‘National Council of Churches in Australia – Newsletter’, June 2023; Persecution.org ‘Christian Church Bombed in Sudan’, 21 November 2023 Omdurman; Reuters, ‘Witnesses recount gunmen's raid on church in Sudan's capital’, 19 May 2023

12. The Tribunal accepts that both the RSF and SAF have targeted Christians in the conflict and have systemically destroyed Christian places of worship. The Tribunal accepts as likely that the applicant will not be able to practice his religion in a church on his return to Sudan. The applicant’s representative has provided recent reporting from Human Rights Watch[18] that, “The RSF have entrenched themselves in Khartoum’s residential areas, where they have occupied homes, businesses, and essential infrastructure, notably healthcare facilities. In areas over which they exercise control, the RSF have committed serious violations of international humanitarian law, including widespread sexual and gender-based violence, as well as unlawful detention and confinement of civilians, and pillage”. The Tribunal accepts that as a Christian with Coptic appearance, the applicant will be recognisable as a Coptic Christian if he comes to the attention of the armed forces and that this likelihood is high given their occupation of Khartoum and check points across the country.

    [18] Human Rights Watch, ‘Khartoum is not Safe for Women!’, 2 July 2024

13. The UNHCR has urged countries to cease forced returns to Sudan[19]. In a Position Paper issued 5 May 2023, the UNHCR called on countries to allow all civilians fleeing Sudan non-discriminate access to their territories, suspend negative decisions on asylum applications, and consider sur place claims. UNHCR advises a non-return policy, noting that a ‘bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.’ UNHCR further advises that in light of the volatile situation across Sudan, it ‘does not consider it appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative.’ No specific groups have been identified as in need of international protection, however the position paper outlines the risk to all civilians in Sudan.

    [19] ‘UNHCR Position on Returns to Sudan', UNHCR, Refworld, 5 May 2023

14. Overall, given the applicant’s particular attributes and circumstances in the context of a dire security and humanitarian situation, the Tribunal is satisfied that the applicant faces a real chance of serious harm in the reasonably foreseeable future on his return to Sudan including a threat to the person's life or liberty; significant physical harassment of the person; significant physical ill - treatment of the person; significant economic hardship that threatens the person's capacity to subsist; denial of access to basic services, where the denial threatens the person's capacity to subsist; and denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

15. The Tribunal is satisfied that the fact that the applicant is a member of a religious and ethnic minority and that this would be the essential and significant reason for that harm. The Tribunal considers that he cannot be expected to alter his behaviour or those essential characteristics.

16. The Tribunal is satisfied that due to the situation in Sudan for the foreseeable future, the harm relates to all areas of Sudan and there are no effective protection measures available to them.

17. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a). Consequently the Tribunal has not assessed the other claims further nor has it considered Complementary Protection.

    DECISION

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

    Kylie Allen
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

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

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

    but does not include an act or omission:

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

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

    …

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

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

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

    …

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

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

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

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

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

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

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

    …

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

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

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

    …

    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.

    …

    
    

'How Sudan's paramilitary forces took parts of Khartoum, stormed army chief's quarters', Khalid Abdelaziz, Reuters, 10 May 2023