2013984 (Refugee)

[2024] AATA 1973

2013984 (Refugee) [2024] AATA 1973 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Lidia Soliman

CASE NUMBER:  2013984

COUNTRY OF REFERENCE:                   Sudan

MEMBER:Kylie Allen

DATE:26 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first and second named applicants satisfy s 36(2)(a) of the Migration Act; and

(ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 26 March 2024 at 3:51pm

CATCHWORDS
REFUGEE – protection visa – Sudan – religion – Coptic Orthodox Christians – discrimination, harassment, threats and attempts at conversion to Islam – members of family unit – former husband’s separate application – child’s developmental condition – targeted and treated badly, and no rights or services – mental health and treatment – single woman and returnees from western country perceived as wealthy – country information – attacks on churches, family and community members displaced and looting of houses – general security and humanitarian conditions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), Schedule 2

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

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 11 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Sudan, applied for the visas on 15 December 2016. The delegate refused to grant the visas on the basis that the applicants were not owed protection.

3. The applicants appeared before the Tribunal on 18 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CLAIMS AND EVIDENCE

   Protection visa application

5. The applicants are comprised of the first named applicant (the applicant), her eldest son (the second applicant) and her youngest son (the third applicant). They initially lodged their protection visa applications on 15 December 2016 along with the applicant’s husband, from whom she is now separated. His application is now separate and he does not form part of this review. The applicant’s claims include the following:

   ·     She was born in [Year] and lived in Khartoum where she married and had two sons born in [Year] and [Year]. She worked in [a work sector] and later in a [workplace] for [specified people 1].

   ·     Their family are Coptic Orthodox Christians. As a Christian family living in Sudan they experienced many years of discrimination. She had a number of incidents with [people] who believe that she was trying to teach [others] about Christ or against Islam.

   ·     She was involved with an older intellectually challenged Christian girl who was being targeted by a group of Muslim youth for conversion to Islam. The girl was physically and emotionally abused. The Muslim youth were part of a group assisted and encouraged by [Mr A], a local business owner who also forced her husband to do business with him. When she tried to get justice for the girl, she was threatened that her family members will be killed and she was sexually harassed.

6. The second applicant’s claims included the following:

   ·     He has [Disability 1] and he is Christian so he is targeted by many Muslims and treated badly. People always swear at him or spit on the ground near him.

   ·     In the street many times Muslims force him to kneel and pray with them. Many people tried to make him convert to Islam.

   ·     Other children made fun of him and hurt him.

   ·     He was treated badly by teachers, bus and taxi drivers who would not assist him and he has no rights or services as a disabled person.

   ·     His mother is always sworn at or blamed because they believe that he was born as punishment for her because she is not a good and modest lady.

   Pre-Interview submissions

7. On 19 May 2020, the applicants made submissions to the Department prior to their protection visa interview. That submission included the following information:

   ·     A statutory declaration from the applicant which included information about the following incidents of claimed harm in Sudan:

   -When her son was born in [Year] the Muslim nurse described him as a plague from God because he was born with disabilities.

   -In 2003 a hurtful comment was made to her in the market about her son being a punishment.

   -In 2008 her son was at a special needs school where he was taught how to pray and had Islam forced on him.

   -In 2011 she was arrested and detained for [teaching Christian practices]. The businessman [Mr A] was involved and forced her to sign a paper that she did not see which he later used against her.

   -Her older son was teased for having a disability and her younger son was teased for having a brother with a disabilitiy.

   -In 2011 she was sexually harassed on a bus for being a Christian woman not wearing a hijab.

   -In 2012 her younger son was harassed by an Arabic teacher at school and prevented from using the toilet.

   -In 2015 she was sexually harassed on multiple occasions by [Mr A] who has links to security and made threats against her family. Her younger son was assaulted at his new school by students for being a Christian.

   -In 2016 a person in her care was threatened with harm by [Mr A]. Her younger son was threatened at his new school and this was by [Mr A].

   -In 2016 she had problems on a bus where she was harassed, the bus was speeding and she had a knee injury and in the bus queue she was assaulted and had jewellery and a phone stolen. She reported the theft to police who did not take it seriously.

   -When they departed Sudan at the end of 2016 she was threatened by [Mr A] at the airport that if they returned to Sudan, the airport authorities would tell [Mr A] and they will be imprisoned, tortured, raped and killed for being out of Sudan for more than a month.

   -She also fears harm for returning from the West on the basis that she will be perceived as being rich and they will harm her older son for his disability and her younger son for defending him. She will not get police protection and it will be worse if they relocate to anywhere outside Khartoum.

   ·     A report from the applicant’s psychologist dated 17 March 2020 which states that she attended 9 sessions of Cognitive Behavioural Therapy between 16 December 2017 and 6 November 2018 to deal with stress (bereavement and adjustment difficulties).

   ·     A medical certificate from the applicant’s General Practitioner dated 18 May 2020 which states that due to the stress of the uncertainty of her visa status, he referred her to a psychologist.

   ·     An undated police report from Sudan which states that on 16 November 2016, the applicant reported her mobile phone and gold bracelet stolen.

   Protection visa interviews and submissions

8. On 20 May 2020, the applicant attended a protection visa interview with the Department. There were some issues with the interpreter so the interview was terminated and rescheduled.

9. On 3 June 2020, the applicant’s representative made submissions which included small corrections to the information provided at interview.

10. On 4 June 2020, a further protection visa interview was held with the Department.

11. On 8 June 2020, the applicant’s representative made post interview submissions which included the following information:

    ·     The applicant, as a Coptic Christian woman who is a mother of a son with [Disability 1], has suffered persecution and discrimination because of her religion, and being a woman not wearing the hijab and also a woman who gave birth to a disabled child. There were many incidents that she and her family members have suffered, some of which were detailed in her Statutory Declaration.

    ·     The applicant and her family members will suffer similar serious and significant harm if they return to Sudan because she is targeted by a member of the radical Islamists a Sunni Muslim named [Mr A] who is also of high rank in the Police and Security Intelligence.

    ·     In particular, as a returnee from the western world, the applicant and her family will be targeted by government officials enquiring about where they have been for all this time.

    ·     They also will be targeted by street thugs perceiving them as being wealthy and returning with the wealth of the western world.

    ·     The applicant fears that upon their return that she and her family will be tortured, imprisoned, raped and killed.

    Protection visa decision

12. On 11 September 2020, the delegate made a decision to refuse all the applicants protection visas on the basis that they would not face a real chance of persecution now or in the foreseeable future and as such they were not owed protection.

    Application to Tribunal

13. On 15 September 2020, the applicants lodged an application for review of the delegate’s decision with the Tribunal.

    Submissions to Tribunal

14. On 11 March 2024, the applicants’ representative provided a submission to the Tribunal with a new claim. This claim was that there is an ongoing humanitarian crisis in Sudan which has heightened the applicants’ concerns about returning to Sudan. The submission contained the following attachments:

    ·     A letter of Support from Parish Priest [Fr B].

    ·     Psychological reports from [Ms C], Registered Psychologist, outlining the contact she had with the applicant to assist with the stress of domestic violence and the visa application process.

    ·     A report from the family’s general practitioner [Dr D] which provides an overview of the family’s medical conditions.

    ·     United Nations High Commissioner for Refugees (UNHCR) External Update 51, “SUDAN SITUATION 29 February – 6 March 2024”. This update states that the conflict between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) has persisted for over 307 days, resulting in widespread insecurity, attacks on civilians, and the displacement of nearly 1.6 million people. The security situation in Sudan was marked by ongoing fighting and shelling in a number of areas including Khartoum.

    ·     Australian Outlook, “The UN’s Latest Report on Atrocities in Sudan Deserves the International Community’s Attention and Action”, 31 January 2024. This report focusses on reports of the situation in Darfur and West Sudan.

    ·     UNHCR, “SUDAN SITUATION EMERGENCY In Central African Republic”, As of January 28, 2024. This report notes that since 15 April, the crisis in Sudan has forced thousands of people to seek refuge in the far north of the Central African Republic.

    ·     Human Rights Watch, “Sudan conflict fuels world’s largest internal displacement”, 31 January 2024

    ·     UNHCR External Update, “Central African Republic (CAR) Sudan Situation 29 February-6 March 2024”

15. On 15 March 2024, the applicants’ representative provided the following reports on the applicants’ health:

    ·     Medical report for the first applicant from a cardiologist dated 6 March 2024. It does not appear to indicate any heart disease and recommends preventative measures.

    ·     Medical report for the second applicant from his paediatrician dated 11 March 2024  which states that specialists for [Disability 1] are unavailable in Sudan.

    ·     Medical report for the third applicant from a GP dated 12 March 2024 indicating that he has depression and anxiety about going back to Sudan

    Tribunal hearing

16. On 18 March 2024, the applicant appeared before the Tribunal to give evidence and present arguments in relation to her claims. The hearing was conducted with the assistance of an interpreter in the Sudanese Arabic and English languages. The applicant’s legal representative was in attendance as well as her two children. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.

17. At hearing the Tribunal advised the applicant that it would be useful to receive any information they have to support their assertion that they are unable to practice their religion in Sudan due to the conflict.

    Post hearing submissions

18. On 19 March 2024, the applicants’ representative provided post hearing submissions and country information about attacks made on Coptic Orthodox churches in Sudan. Attached to the submission were the following reports:

    ·     Christianity Today, “Khartoum Churches Damaged as Sudan Descends Closer to Civil War”, 2 May 2023. It is submitted that the report identifies that the Coptic Orthodox Church in Bahri, Khartoum was struck by a rocket. This is the parish of [St George]. The report states that all Christians have left the area and that there is widespread looting of their properties.

    ·     Independent Catholic News, “Sudan: Rebel forces occupy Coptic Monastery in Wad Madani”, 20 December 2023. It is submitted that members of the RSF attacked a Coptic Christian monastery in Wad Madani, Gezira State, Sudan, on 16 December 2023 and have subsequently been using it as a military base.

    ·     National Council of Churches in Australia Newsletter June 2023. This reports that at a meeting held in Sydney on 14 June 2023, Bishop Daniel of the Coptic Orthodox Diocese of Sydney and Affiliated Regions asked for prayers and advocacy for the people of Sudan affected by the current military fighting. He stated that the Coptic Orthodox Church in Khartoum has been badly affected.

    ·     Persecution.org, “Christian Church Bombed in Sudan”, 21 November 2023. This reports that on 15 May 2023, the RSF seized a central Khartoum cathedral after having evacuated the Coptic Orthodox Church of the Virgin Mary near the presidential palace on 14 May 2023 converting the latter into a military headquarters.

    ·     Reuters, “Witnesses recount gunmen's raid on church in Sudan's capital”, 19 May 2023. This report notes that there was a raid on the Mar Girgis (St. George) Coptic church in Khartoum.

    CRITERIA FOR A PROTECTION VISA

19. 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.

20. 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.

21. 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).

22. 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.

23. 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

24. 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

25. The issue in this case is whether the applicants are owed protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Identity

    The applicants claim to be Coptic Christians from Khartoum in Sudan. In support of their claimed identities they provided their Sudanese passports. Based on the applicant’s account of their life at hearing, I am satisfied that they are nationals of Sudan and that Sudan is their receiving country.

    Protection claims

26. The Tribunal accepts that the applicant is a woman who is separated from her husband and, that if returned to Sudan she would be returning as a single woman and carer for her son. Based on the medical evidence provided by the applicants, the Tribunal accepts that the second applicant has [Disability 1] and other [disabilities] and requires significant care and support including on-going medical treatment. The Tribunal accepts that all the applicants are members of the minority group of Coptic Christians from Khartoum and, based on information from their pastor and their evidence at hearing, accepts that the applicants are practising Christians. The Tribunal accepts the applicants’ evidence provided at and after hearing, and set out above, that their family members have been displaced to [Country] and their usual church in Khartoum was destroyed in the conflict. The applicants have advised that the security situation in Sudan, including Khartoum, has deteriorated significantly since 2023. They fear they will be subject to serious and significant harm on their return to Sudan and that harm will be particularly aimed at them for their particular attributes including, the first applicant as a single Christian woman with a son with disabilities and to the second applicant as a Christian man with complex disabilities requiring medical care.

27. The Tribunal has had regard to recent reporting about the security situation in Sudan and its impact particularly on women, Christians and people with disabilities requiring medical care. 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. Media reports[6] 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.

   [6] '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.

4. The UNHCR has urged countries to cease forced returns to Sudan[7]. 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.

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

5. The applicants are members of a minority ethnic and religious group in Sudan. Their community has largely fled Sudan and their 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[8]. 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[9]. In these circumstances, the Tribunal finds that the chance of the applicants being noticed and questioned by RSF soldiers is high.

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

   [9] Ibid.

6. Sexual violence against women is reported[10]. According to a leaked United Nations document, female expats were removed from their homes in Khartoum by RSF soldiers with at least one rape recorded. United Nations Women have stated ‘reports of sexual and gender-based violence [against women] are already surfacing’, and have funded technical support to ‘young Sudanese women’ for a tracking app, and are recording ‘cases and allegations of gender-based violence.’ An article by WILPF[11] states ‘Women in central and northern Khartoum are facing the horrific reality of sexual violence at the hands of the RSF. Families are trapped in their once safe homes, now at the mercy of men with machine guns, leaving women and girls particularly vulnerable to assault…Despite the frequency of these heinous crimes, rape remains heavily under-reported due to the stigma and shame attached to it, leaving the silent cries of victims unheard.’ In these circumstances the Tribunal finds that the applicant would be at particular risk of sexual and gender-based violence being a single female parent without a husband and a member of an ethnic and religious minority group and the parent of a child with a disability.

   [10] ‘Foreigners, Diplomats Targeted in Sudan as Fighting Persists', Bloomberg, 18 April 2023,

   [11] ‘Women on the Frontlines: A Feminist Perspective on the Ongoing Crisis in Sudan', Women's International League for Peace and Freedom (WILPF), 26 April 2023.

7. There are reports[12] that hospitals and other medical facilities have been targeted by air strikes or otherwise damaged in the fighting, and in some cases occupied and looted by armed groups. Hospitals in Khartoum have been largely unable to deliver medical treatment to civilians with makeshift medical clinics established to assist the sick and injured where possible. The Tribunal finds that the second applicant would not be able to obtain necessary medical care as a result of the security situation and he would stand out to RSF soldiers as a person with disabilities and this would put him at a real chance of serious harm because of his disabilities along with his profile as a Coptic Christian.

   [12] 'Sudanese say warring factions ignore their plight as hardships grow', Reuters, 5 May 2023; ‘Sudan:

8. Overall, given the applicants’ particular attributes and circumstances in the context of a dire security and humanitarian situation, the Tribunal is satisfied that the first and second applicant face a real chance of serious harm in the reasonably foreseeable future on their 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. The Tribunal is satisfied that the fact that they are of a religious and ethnic minority without support from their community and they have particular vulnerabilities as a single woman and a person with a disability would be the essential and significant reason for that harm. The Tribunal considers that they cannot be expected to alter their behaviour or those essential characteristics. 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.

9. For the reasons given above the Tribunal is satisfied that the first and second named applicants are persons 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.

10. The Tribunal is satisfied that the third named applicant, the first named applicant’s son, is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the first named applicant’s application. It follows that the third applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

11. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that the first and second named applicants satisfy s 36(2)(a) of the Migration Act; and

    (ii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    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

‘Statement on Sudan by UN Women Executive Director Sima Bahous', UN Women, 21 April 2023;
'Fact Sheet - Conflict Surges in Sudan', ACLED, 28 April 2023

Explosive Weapons Harming Civilians', Human Rights Watch, 4 May 2023; ‘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.