1511406 (Refugee)

1511406 (Refugee) [2017] AATA 1786 (7 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1511406
COUNTRY OF REFERENCE:                  Congo, Democratic Republic of
MEMBER:Jane Marquard
DATE:7 September 2017
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 07 September 2017 at 10:06am

CATCHWORDS
Refugee – Protection visa – Democratic Republic of Congo – Political opinion – Union for Democracy and Social Progress (UDPS) supporter – Harassment by government authorities and representatives of ruling party – People’s Party for Reconstruction and Democracy (PPRD) – Fear of arrest or physical ill-treatment – Repression of political opposition – Deportation
LEGISLATION
Migration Act 1958, ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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

The applicant is a citizen of Democratic Republic of Congo (DRC).
He arrived in Australia [in] November 2012 on a [temporary] visa. He departed Australia [in] March 2013.
He arrived in Australia the second time [in] May 2013 on the same visa.
He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) [in] December 2014.
A delegate of the Minister for Immigration, the Department of Immigration (the Department) refused to grant the applicant the visa [in] August 2015.
This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
The applicant provided the following information to the Department:
·He was born in [year] in Mbuji-Mayi, Kasai Oriental Province;
·He is a Christian;
·He completed Year 12 of high school and then attended [university] for one [year] before stopping university because of the political situation;
·He worked as [Occupation 1] in DRC and South Africa;
·He had a de facto relationship in South Africa which began in 2010 and ended in 2014;
·He was a member of the opposition party, Union Pour la Democratic et le Progress Social, or, as translated, the Union for Democracy and Social Progress (UDPS), from 2002;
·He was persecuted by the ruling party, the People’s Party for Reconstruction and Democracy (PPRD);
·During the 2006 election, the UDPS needed [materials] for supporters. He arranged for [materials] to be [sourced] in South Africa;
·During the election of 2006 his property was destroyed and he was threatened because he provided the [materials] and supported the UDPS;
·His father called him to tell him that non-uniformed people had looked for him at home. He had followed them after they left, finding that they were hiding down the street waiting for the applicant. They arrested some people but the applicant went into hiding. For the next three years he moved between friends’ homes while continuing to work as [Occupation 1];
·He moved to Lubumbashi in 2007 but lost clients and money as he could not work in public;
·His life is at risk as his name is on the list as an opposition member;
·The PPRD can act with impunity as they are corrupt;
·He changed his name from [name] to [another name] in order to obtain a passport;
·From 2009 to 2010 and from 2011 to 2012 he lived in South Africa because he ran away from the political problems;
·In South Africa in 2011 a friend told him about fraudulent ballot papers that were being printed in South Africa by an organisation called “Friends of Kabila”, and that these ballot papers were sent to the DRC in an effort to rig the 2011 election;
·He returned to DRC in 2013 intending to open a [business];
·When he returned to DRC in 2013 members of the PPRD threatened to arrest and kill him;
·The last time he went to South Africa, [in] April 2013 representatives of the PPRD working with immigration in South Africa, sent him from the airport back to DRC without a reason, even though he had a valid visa. He was stopped because an undercover member of the DRC was present at [the] airport and pointed out the applicant to South African authorities. The applicant claims that he knew this person was an undercover DRC official. He was taken into the office and questioned about his travel. Because he had seen the DRC official he did not say why he travelled and was refused entry. He did tell one immigration officer, who contacted a friend of the applicant in South Africa, who was also a supporter of UDPS. This friend then gathered other supporters of UDPS who went to the airport to assist him, but were told he was not there. He slept a night at the airport and was then sent back to DRC. He was not given any documentation about the refusal;
·When he got to Lubumbashi, his passport was given to a DRC official by a flight attendant. He was held by immigration when he got back to DRC, but the immigration officer handling his case spoke the same tribal language, and because of the tribal connection, drove him outside the airport and he escaped by land border by taxi the next day; and
·When he arrived at [the] border [in] April 2013, he paid a child to take his passport to the border guards and get a stamp.
He provided the following documents:
·Copy of his passport issued in 2011 including stamp from South Africa for visit only; and
·Copies of news articles about DRC.
He provided the following information to the Tribunal in written submissions and at a hearing on 13 July 2017.
·He was born in [year] in Mbuji-Mayi, Kasai Oriental Province. It is a big [town]. His father had a small, local [business]. He still works, but not as much now because he is aged [age]. His mother was a housewife and [Occupation 1]. He has [number] brothers and sisters. [Some siblings are] in South Africa and the others are in DRC. Some of his [siblings] live in his home town, but [the others] are in the capital. One brother is a [driver] and one is in the church. His family are Christians. His father was a member of UDPS, but he mainly focused on his business as he had to drive from [area] to [area] to buy [goods]. His brothers and sisters were not involved in politics. Within his family, people had different views of Kabila;
·He completed Year 12 of high school and then attended the [university] for one [year]. He then gave up attending university, because he had started his business, and it was growing, and he was involved in the opposition party;
·His mother taught him and his sister to be [Occupation 1]. She worked [from home]. The applicant worked from a [store]. He bought his [work materials] in the city. He worked in his business until he came to Australia; with the exception of 2009 until 2012 when he worked in South Africa. While there, he had a relationship with a South African woman;
·In 2002 the applicant joined UDPS. He joined for the good of the people. The slogan was “people first”, and this related to schools, jobs, transport and other social services. He felt that UDPS was superior to other parties, because they wanted to respect the Constitution. For example they felt that a president should only have two terms as stated in the Constitution. The regime was not providing social services in the city. He made his own decision to attend based on the status and ideals of the party. To him, UDPS appeared to act, rather than talk. He listened to radio and learnt about these matters. His father was a member of UDPS, so he knew the location of the local offices in town, because he had been there with his father;
·When he joined UDPS he was just a normal member. He tried to contribute in a number of ways. For example, he attended meetings, and distributed pamphlets. There were about [number] people at these meetings. The [senior official] of the local party had them to his house. They talked about social programs they would introduce if they won, such as improvement of schools, roads and the creation of jobs. Ordinary supporters and members were constantly harassed by authorities. Some disappeared, some were arrested. However they just tried to carry on. Sometimes the regime would send soldiers to the meetings and they would distribute teargas. He would have to run away. His father never had any problems from the authorities, as he was not very involved;
·During the 2006 election campaign, the UDPS needed [materials] for supporters. One of the officials asked him to provide [the materials]. He arranged for [the materials] to be [sourced] in South Africa. UDPS planned to boycott the elections, as there were suspicions that the PPRD was planning electoral fraud and ballot tampering and [some of the election resources] stated “No to vote” in French;
·The applicant used his connections in South Africa to arrange [supply] of the [materials]. He contacted his friend [to] supply [materials] and mail them to DRC. He sent them [plans for approval]. He provided to the Tribunal a recreated [copy of the plans]. He only ordered [number of items], a relatively small number in comparison to the number of supporters as he did not want to cause suspicion. He planned to make more orders in instalments. He did not keep any [items], as later his shop was destroyed by government soldiers. He does not have photographs;
·He collected the [materials] from the agency, and he distributed [them] at a party meeting. [They] were [used] during protests and marches in 2006, and government were aware that he supplied [them], because they had spies at meetings. About three to four days after distribution of the [materials], he was contacted by his father who said that non-uniformed Congolese election officials attended his [work] premises searching for him. His father attempted to cover for him, saying he did not know where he was. The father followed them and saw them surveying the area, waiting for the applicant’s return. His father warned him not to return to the premises as soldiers would arrest and torture him or even kill him;
·His two friends and partners [who] had helped to distribute [materials] were arrested. They have been missing ever since. He fears that they were killed in prison. Their families do not know where they are. There are many mass graves in DRC. He had been close to these two friends. UDPS also tried to find them, but unsuccessfully. Their families had been to see them in gaol a few times, but then were told that they in the prison farm, and the families should come another day. After that the families kept being put off by the officials, and this was a sign that the men had been killed. These friends had been active in the party;
·His father told him not to come back to the house as it was dangerous. He went to friends’ homes. His father called him to tell him that his business had been ransacked. This was a common tactic of the regime against opposition members. After this he felt very afraid. He knew he had to hide. His father told him to leave the province. Immediately after, he moved to Lubumbashi province, approximately 1000 km away. He went there because his political party was there, and he had a friend there. Also it was closer to borders. He took public transport as was fearful of going on a plane or train. He also disguised his appearance. He lived with his friend [and] attempted to start [another] business;
·He said regime officials then found him in Lubumbashi in February 2007, about two months after he arrived. He went to buy [work materials] and later his worker told the applicant that soldiers came to the business looking for him. They told the worker to put a lock on the door so the applicant could not access the shop. He asked his worker to check the shop the next day, and she found that it had been opened and everything ransacked. He telephoned someone from UDPS, who told him not to go back to the shop. He became fearful for his life and tried to start another business to survive. He moved between different houses between 2007 and 2009 and for this reason he was not found. He also asked his father to help raise money for him to leave the country. He was still attending meetings in Lubumbashi and doing some work for them, but in a quiet way as he was hiding;
·In 2009 his father finally had enough money to send him to South Africa. He remained in South Africa until 2011 on [temporary] visas, which he kept renewing. He did not consider applying for asylum as he did not know about it;
·His life is at risk as his name is on the list as an opposition member. The PPRD can act with impunity as they are corrupt;
·In South Africa in 2011 a friend, [Mr A], told him about fraudulent ballot papers that were being printed in South Africa by an organisation called “Friends of Kabila”, and that these ballot papers were sent to the DRC in an effort to rig the 2011 election. The Congolese government became aware he knew of this. [Mr A] told a friend of his that he had told the applicant about the issue, without knowing that this man was working for the authorities. His father told him that officials were increasingly attending the family residence to look for him, and threatening him with arrest;
·He decided to return to DRC in 2013 because he wanted to start a business there. He hoped that the government were no longer looking for him and he could start a [business] under his alias name. However after he arrived, somehow they found out he was in the country and started looking for him. Shortly after returning numerous people told him that PPRD knew he had returned and were threatening to arrest him. So [in] April 2013 he fled to South Africa. He was detained. Representatives of PPRD working with immigration in South Africa, sent him from the airport back to DRC without a reason, even though he had a valid visa. He was stopped because an undercover member of the DRC was present at [the] airport and pointed out the applicant to South African authorities. He said the Kabila regime knew that there were many Congolese there, so they sent spies. The applicant claims that he knew this person was an undercover DRC official. He was taken into the office and questioned about his travel. Because he had seen the DRC official he did not say why he travelled and was refused entry. Asked why the South African immigration authorities would listen to a DRC official he said that they indicated to the immigration authorities, that they should not allow him in. He did tell one immigration officer, a woman, who contacted a friend of the applicant in South Africa, who was also a supporter of UDPS. This friend then gathered other supporters of UDPS who went to the airport to assist him, but were told he was not there. He slept a night at the airport and was then sent back to DRC. He was not given any documentation about the refusal. Asked why the South African immigration authorities would get involved with DRC affairs, he said that they work in collaboration;
·When he got to Lubumbashi, his passport was given to a DRC official by a flight attendant. He was held by immigration when he got back to DRC, but the immigration officer handling his case spoke the same tribal language, and because of the tribal connection, drove him outside the airport and he escaped by taxi across the land border the next day. This official asked him if he was a “brother”, and he said he was and the official told him to follow him outside. The official recognised him from the same tribe. The official said authorities were looking for him, and so he left across the border, using a taxi, avoiding all the roadblocks. When he arrived at [the] border [in] April 2013, he paid a child to take his passport to the border guards and get a stamp, which he claimed was easy to do at this particular border. From [one country] he went to [another country], then to Johannesburg and to Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
In coming to a decision the Tribunal has taken into account evidence before it, including information on the Department file, oral evidence at hearing and independent country information about DRC.
A summary of the relevant law, and an extract of the legislation, is set out in Attachment A.
Nationality
The applicant provided a copy of his passport and gave evidence that he was a citizen of and born in DRC. It was clear that he was familiar with the culture, history and geography of DRC, and the Tribunal accepts on the evidence before it that he is a citizen of DRC, and that DRC is the receiving country for the purposes of the complementary protection provisions.
Findings of fact
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. The Tribunal is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. All this is taken into account in these findings.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal is satisfied, on the evidence provided, that the applicant was a member of the Union for Democracy and Social Progress (UDPS) from 2002. The applicant was able to provide details of the ideals and objectives of UDPS, and his reasons for joining (for the good of the people, UDPS appeared to act, rather than talk, and were focused on schools, jobs, transport and other social services). He knew about the focus of UDPS on respect for the Constitution, and was able to answer questions on how he found out information (through the radio and his father, who was also a member) and the logo. He was also able to provide details of the leaders of parties, election results (for example, that in 2011 Etienne Tshisekedi won, but President Kabila insisted he won, and the party had to ask for a second vote). The information he provided was consistent with country information.[1] He was also up-to-date on current issues, which does indicate that he is a person genuinely interested in political affairs of his country. For example, he was aware that President Kabila’s second and final term in office expired on 19 December 2016, but the government failed to organise election by the year’s end in accordance with constitutional deadlines. He was aware that agreement was reached to hold elections by December 2017.[2] He commented that now Etienne Tshisekedi has passed away, the government is allowing time to pass without organising elections. This kind of knowledge indicates a person with genuine and ongoing political interest.
[1] Canada: Immigration and Refugee Board of Canada, Democratic Republic of the Congo: Union for Democracy and Social Progress (UDPS), including its status, its relationship to the government in power, and the treatment of its members by the authorities and security forces, 18 May 2012, COD104019.FE, available at: 12 July 2017
[2] United States Department of State, Report on Human Rights Practices DRC, 2016, – accessed 7 July 2017

The Tribunal is satisfied that as an ordinary member of UDPS, the applicant attended meetings and helped distribute pamphlets. The Tribunal is satisfied that sometimes soldiers were sent to UDPS meetings, and that they harassed and used teargas on the attendees. This information is supported by country information which indicates that rallies have been broken up by the police and that teargas has been used.[3]
[3]See for example, Mail and Guardian, “DRC police hit Tshisekedi supporters with teargas”, 26 January 2012, -accessed 28 August 2017
The Tribunal is also satisfied that the applicant organised [materials] for UDPS supporters during the 2006 election, [some of which] stated “No to Vote” in French, in line with the UDPS decision to boycott the election because of electoral fraud by PPRD. The Tribunal is satisfied that the applicant was a [Occupation 1] – he has provided persuasive evidence that he learnt this trade through his mother, who [worked] from home, and details of his business. The Tribunal is also satisfied, from passport notations, that he spent time in South Africa.
The Tribunal accepts that the applicant used his connections as [an Occupation 1] to source [materials] from South Africa. The Tribunal initially had concerns as to why [an order] for party supporters would be so small, at [number items]. However the Tribunal accepts his explanation that he ordered an initial [number], and was hoping to make further orders, but did not want to do them all at once, as this would draw attention to the orders from the authorities. The Tribunal is satisfied that a few days after the distribution of the [items], authorities were searching for him, and ransacked his business, and they also arrested two colleagues, who subsequently disappeared. The applicant was able to provide details about the 2006 election which indicates that he had first-hand experience of the issues. For example he discussed how the elections were the first since independence, and Joseph Kabila, leader of the People’s Party for Reconstruction and Democracy won the vote for President. He knew that the elections resulted in the creation of two broad alliances: the Alliance of the Presidential Majority, holding the majority of the seats and supporting President Kabila, and the Union for the Nation supporting leader of Movement for the Liberation of the Congo (MLC), Jean-Pierre Bemba. [4] He explained that UDPS did not get involved in the coalition because of concerns about electoral fraud. This evidence is consistent with country information which suggests that Bemba was not satisfied with electoral results[5] and that UDPS did not take part in the elections.[6]His claim that his business was ransacked is also consistent with sources which suggest that ransacking (in this case, political) offices was a tactic used by the government to undermine the opposition.[7] It is also clear from various sources that in those years, state security forces operated with impunity and committed many serious abuses and that opposition supporters regularly disappeared,[8] as was the case with the applicant’s colleagues.
[4] Internal Displacement Monitoring Centre & Norwegian Refugee Council, Democratic Republic Of The Congo: Over 2.1 million IDPs in the context of deteriorating humanitarian conditions, 24 February 2010, Accessed 5 August 2017; Freedom House 2009, Freedom in the World – Democratic Republic of Congo, 2009, - Accessed 20 August 2017.
[5] The Economist, “Congo on a knife’s edge”, 15 November 2006, - accessed 28 August 2017
[6] Congo Planet, “Candidates Registered election date undecided”, 5 April 2006, – accessed 28 August 2017
[7] Canada: Immigration and Refugee Board of Canada, Democratic Republic of the Congo: Union for Democracy and Social Progress (UDPS), including its status, its relationship to the government in power, and the treatment of its members by the authorities and security forces, 18 May 2012, COD104019.FE, available at: 12 July 2017
[8] United States Department of State, Report on Human Rights Practices DRC 2009, 2010, - accessed 30 August 2017
The Tribunal is satisfied that the applicant moved to a different city, Lubumbashi, which was over 1000 kms away, to escape attention from authorities. The Tribunal is satisfied that he changed his appearance and took public transport, to avoid authorities. However the following year, his new shop was “locked up” by soldiers who came to the business looking for him, and later all his goods were taken. The Tribunal is satisfied that he lived in hiding between 2007 and 2009, at which time his father was able to arrange sufficient funds for him to leave the country and travel to South Africa, where he remained between 2009 and 2011.
The Tribunal had concerns as to why and how he was able to return to DRC from South Africa in 2011. He explained that he had to leave South Africa in order to renew his visa, and usually went to other countries to do this. In 2011 he was forced to return as he had to apply for a new passport and used a new name. This evidence does accord with country sources about DRC passports. In January 2010, the DRC government announced that, effective from 1 January 2010, only “B” series passports were acceptable for international travel and that all other passports were invalid from that point on. This decision applied to all passports, even if the expiry date fell after the 1 January 2010 deadline. [9] The Tribunal is also satisfied that he was able to travel to DRC using this passport under a new name in 2012 to renew his visa, and in 2013, and that despite his past, he decided to move there and start a new business as he hoped he would no longer be of interest to authorities.
[9] Citizenship and Immigration Canada, ‘Operational Bulletin 179 - Processing applications submitted with Democratic Republic of the Congo passports’, 18 January 2010, - Accessed 20 July 2017
The Tribunal is satisfied that on return in March 2013, numerous people told him that PPRD officials knew that he was there, and were looking for him, so he fled to South Africa in April 2013. The Tribunal accepts his evidence that he made a “grave mistake”, particularly as he returned so quickly to South Africa. The Tribunal is also satisfied that he was turned back at [the] airport, Johannesburg, to be deported to DRC. The Tribunal initially questioned why the South African immigration authorities would take notice of the demands of a Kabila collaborator at the airport, working in collaboration with South African authorities. However media reports do indicate that the South African authorities have indeed had connections with the Congolese government. A Canadian Immigration Report reported that following the November 2011 elections, DRC nationals protested in South Africa. This was in part because the local Congolese were furious to find out that some voting ballots were in transit to Kinshasa one day after the election. According to the report, private companies in South Africa printed the Congolese voting ballots at the request of the Congolese electoral commission.[10] This was consistent with evidence provided by the applicant who stated that he found out about this at the time, and this may have led to his deportation.
[10] Canada: Immigration and Refugee Board of Canada, South Africa and Democratic Republic of the Congo: Congolese protests in South Africa against the November 2011 election results in the Democratic Republic of the Congo, in particular, the protest on 19 January 2012; arrests, detentions, conditions of release and deportation following these protests (November 2011-May 2013), 21 May 2013, ZZZ104422.FE , available at: accessed 14 July 2017
Media reports also refer to clashes on 5 December 2011 between Congolese protestors and South African police, after protestors accused South Africa of interfering in the elections. On 19 January 2012 the South African police conducted a raid on Congolese nationals and 150 Congolese were arrested. While the police said they were arresting illegal immigrants, commentators said that they were trying to silence the Congolese community. Witnesses said that Fabrice Shungu, a Congolese agent, helped the South African police identify people to arrest. He was the founder of Friends of Kabila which is an organisation which helped business people in South Africa invest in the DRC. The report indicated that those Congolese deported back to DRC suffered arrest and mistreatment. Some of these refer to a strong reaction by local authorities, including the firing of rubber bullets at protestors by police in December 2016.[11] An article in BayView newspaper dated 23 January 2012 states that President Kabila met with President Zuma in June 2011, five months before the DRC elections. Two weeks before the election the two countries entered into a hydroelectricity deal. In December of that year, 200 Congolese were “hounded out of their shops and homes by scores of South African police, then summarily arrested on ludicrous, trumped up charges of public violence”.[12] In 2017 there were numerous protests about the visit by President Kabila to South Africa. South African President Zuma was very complimentary towards President Kabila on his visit.[13]
[11] Reuters, 20 December 2016, - accessed 14 July 2017
[12] BayView, “Congolese say South Africa’s Congolese immigrant sweep targeted Anti-Kabila refugees”, 23 January 2012
[13] See for example,Radio 702, 26 June 2017, - accessed 14 July 2017, The Citizen, , “Zuma congratulates Kabila for progress in DRC”, 25 June 2017, - accessed 14 July 2017
Not only does this country information indicate that there have been substantial connections between the governments of South Africa and the DRC, but it suggests that Congolese agents were working in South Africa to identify Congolese protestors who should be arrested and deported. This does give some credence to the applicant’s claim that a Congolese agent assisted the immigration authorities to identify and deport him. Furthermore, at the time when the applicant claims that he was being harassed by the ruling party, there is no doubt that the ruling party acted in various ways to suppress the opposition, including arrests and control of media.[14] The Refugee Documentation Centre of Ireland summarised reports from Amnesty International and other sources, which referred to extensive suppression of opposition in and around 2013, including arrests of UDPS members, and shootings at rallies. One Amnesty International Report in 2012 referred to in the Irish report, stated that arbitrary arrest, torture and ill-treatment of UDPS members was for the purpose of intimidating members of UDPS.[15]
[14]Freedom House, “Congo-Democratic Republic”, 2012, - accessed 17 August 2017
[15] Legal Aid, Ireland, Refugee Documentation Centre, “Information on the Treatment of UDPS party in DRC: electoral violence on day of results being published, 26 April 2013
Given these reports about the connections between the South African and Congolese authorities, and the oppressive nature of the ruling party at the time, the Tribunal is satisfied that South African immigration authorities were alerted by DRC government officials about persons of interest to them, and for this reason the applicant was deported to DRC in 2013. For the same reasons, the Tribunal is satisfied that that immediately upon return to the DRC, the applicant was taken from the airport with help from an official who recognised him as a person from his region, Kasai. Although it appears unusual that if deported he would not have been immediately arrested at the airport in DRC, the applicant provided the kind of detail about his escape, and emotion, which is often commensurate with telling the truth - that the official asked him if he was a “brother”, the locations he was taken, and how he used a child at the border to transport his passport. He has also expressed emotion towards the official, saying that he is “eternally grateful” to the immigration officer who risked his life to help the applicant. The Tribunal was unable to locate information about the specificities of getting through this border crossing. However [sources] refer to the lawlessness of this border.[16] Given that the Tribunal has found the applicant’s evidence to be credible generally, the Tribunal is satisfied that he was able to leave the country by land in fear of harm.
[16][Information deleted].
Well-founded fear of persecution
An applicant’s fear of persecution must be a ‘well-founded’ fear based on one of the reasons set out in the legislation. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution if he or she has genuine fear founded upon a ‘real chance’ of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of political opinion, for the reasons set out below.
The Tribunal is satisfied that he would be of adverse interest to the authorities if he returned. In considering this issue, the Tribunal questioned the applicant about why the authorities would still be interested in him, considering he did not have a high political profile with UDPS prior to leaving the country. The applicant submitted that “once you are a target of the Kabila government, you are always a target”. He said that soldiers have searched for him at his father’s house since he left the country, indicating that he is still of adverse interest.
The Tribunal also considered the fact that some commentaries suggest that most of the repression currently relates to rebel and militia groups. The United States Department of State Report on Human Rights Practices in DRC, refers primarily to arbitrary deprivation of life and political killings against these groups, rather than the opposition. The report also suggests that political parties are given “sacred” rights and generally are able to operate without restriction, although there were reports of government intimidation of opposition members.[17] The applicant said it was true that there is repression in relation to rebel groups, and that UDPS were permitted by the authorities to operate, but every day UDPS in their region lost members. Wives would come into the office and tell them that soldiers had taken their husbands. There would be harassment, and also torture, of members. The Tribunal notes that the United States Department of State Report goes on to state that:
.. government authorities--sometimes through violent surrogate groups or the SSF--arbitrarily arrested, harassed, attacked, and prevented opposition members from holding public rallies. On May 4, the day opposition leader Moise Katumbi announced his candidacy for president, the minister of justice launched an investigation and later leveled charges against the former Katanga governor for recruitment of mercenaries. According to Human Rights Watch, SSF arrested at least 27 Katumbi associates between April 22 and May 7 in relation to the trial, which was underway at year’s end. The violence also included attacks on numerous ruling and opposition party offices. For instance, a satellite office of the ruling People’s Party for Reconstruction and Democracy (PPRD) was attacked and damaged along with two PPRD youth offices in Kinshasa. Three offices of parties in the Presidential Majority coalition were also looted, and some banks and government buildings were looted and burned. During the night of September 19-20, SSF attacked the New Forces for Union and Solidarity and Union for Democracy and Social Progress (UDPS) party headquarters in Kinshasa with RPGs and grenades. They killed as many as 11 civilians in the attack on UDPS headquarters, including seven burned to death, possibly after being tortured and hacked with machetes. Eyewitnesses reported SSF blocked efforts to extinguish the fires and prevented civilians burned during the attack on UDPS headquarters from seeking medical attention.[18]
[17] United States Department of State, Report on Human Rights Practices, 2016, – accessed 7 July 2016
[18] United States Department of State, Report on Human Rights Practices, 2016, – accessed 7 July 2016
Similar information is found in the UK Home Office Report in 2017, which states that political parties are generally able to operate most of the time without restriction, but the state will arrest, harass or arrest members particularly to prevent them holding public rallies, especially during periods of heightened political tension. The Report goes on to say that the government has reportedly arbitrarily detained and in some cases ill-treated scores of opposition party leaders and activists. It states that while arrests of party members do occur, the available evidence does not indicate that these are widespread, against all opposition parties or all their members. The Report suggest that mere membership will not demonstrate that a person is of adverse interest to the authorities on account of their actual or perceived military or political activities, and that low level members of the UDPS will not be at real risk on return to the DRC [19]
[19] UK Home Office, Country Policy and Information Note, Democratic Republic of Congo (DRC): Opposition to the government, November 2016
The applicant acknowledged that not all members are targeted, but suggested violence is widespread against people who oppose the government. He said that the leader, Etienne Tshisekedi came from his province, so people who come from his region are particularly targeted. He said mass graves have been utilised commonly since the leader passed away. Members are targets all over DRC and people can go missing any day.
Country sources do suggest that political violence and government repression has intensified recently. Human Rights Watch in its 2017 Report has stated that:
…in 2016 as President Joseph Kabila clung to power beyond his constitutionally mandated two-term limit, which ended on December 19, 2016, despite widespread opposition and international condemnation. As authorities deliberately stalled plans to organize elections, government officials and security forces systematically sought to silence, repress, and intimidate the growing coalition of voices calling for credible, timely elections. After weeks of intense negotiations, participants at talks mediated by the Catholic Church concluded an agreement on New Year’s Eve. The deal, signed by representatives of Kabila’s ruling coalition, the political opposition, and civil society, includes a clear commitment that presidential elections will be held before the end of 2017, that Kabila will not seek a third term, and that there will be no referendum nor changes to the constitution. However, the signatories had not agreed on a detailed calendar or plan for implementing the deal, Kabila himself had not signed the agreement, and it was not clear whether measures would be taken to end the climate of repression.[20]
[20] Human Rights Watch, World Report 2017 DRC, 2017, - accessed 7 July 2017

Human Rights Watch in August 2017 has stated that it has documented numerous cases of arbitrary arrest and enforced disappearances of UDPS supporters this year.[21] A number of sources refer to civil unrest in 2016 and 2017, as opposition forces demand President Kabila step down at the end of his second term. This has led to quelling of protestors with several dozen deaths and arrests of opposition supporters.[22]
[21] Human Rights Watch, “Crackdown on Students, Opposition as government blames them for Kinshasa attacks”, 12 August 2017, - accessed 28 August 2017
[22] Reliefweb, “DRC: 2017 Outlook”, 13 January 2017, - accessed 28 August 2017
Although some of the sources suggest that ordinary UDPS members may not be at a real risk on their return to the DRC, the Tribunal is satisfied that the applicant has a real chance of serious harm were he to return to the DRC in the reasonably foreseeable future. This is for a number of reasons. Firstly, the country sources set out above suggest that the current political environment is volatile as President Kabila clings to power beyond his constitutionally mandated two–term limit. This is causing consternation and protests among the opposition. The applicant has demonstrated that he has a strong political consciousness. He has detailed knowledge of political affairs in the DRC and has been involved in opposition politics, even when he moved cities. In fact, he gave evidence that one of the reasons he chose Lubumbashi as his new home, was that UDPS was active there. The Tribunal is satisfied that he would get involved with opposition politics if he returned, and that this, along with the fact that he has come to the adverse attention of the PPRD in the past on a number of occasions, would mean that there would be a real chance of serious harm. He has been identified in the past as a person to be targeted by authorities, for his involvement in bringing [supplies] into the country for the opposition, and later as a UDPS supporter generally in the DRC and South Africa. Furthermore, the applicant comes from the province where former leader Tshisekedi was born, where it is certainly feasible that opposition members are particularly targeted. Violence in this region has been significant and indications are that the situation is becoming particularly repressive for all people in opposition:
“The Democratic Republic of the Congo is facing a political and economic crisis, and it’s only growing worse. President Joseph Kabila was due to step down in December 2016, at the end of his constitutionally mandated two-term limit. But he has managed to hold on to power by delaying elections and overseeing a brutal crackdown against those calling for the Constitution to be respected. As repression against the political opposition, activists, journalists and peaceful protestors continues, violence by dozens of armed groups and government security forces has intensified across much of Congo. The United States and the European Union have taken strong positions in pressing for justice for the murders of the UN experts and the thousands of Congolese victims, and recently imposed new targeted sanctions against top Congolese officials.”[23]
[23] Sawyer, I, Washington Post “The Crisis in Congo is spiraling out of control”, 30 June 2017, – accessed 30 August 2017
A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A real chance in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility, however it may be well below a 50 per chance: Chan v MIEA (1989) 169 CLR 379.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution. Even though the possibility of serious harm may be below 50 per cent, it is not remote or insubstantial given the applicant’s particular circumstances, home region and past harassment from PPRD soldiers and officials, and country sources set out above indicating current political volatility and repression of opposition. There is no doubt that the PPRD or their associates are capable of serious brutality, given the discovery of 40 mass graves in the Kasai region[24], and sources referred to above about political suppression. The Tribunal is satisfied that the harm he may suffer, would amount to serious harm such as arrest or physical ill-treatment, given the sources which indicate that government forces act with impunity and brutality. The Tribunal is also satisfied that the persecution would involve systematic and discriminatory conduct, given that the ruling party would be motivated to harm the applicant and the attacks would be targeted and non-random.
[24] Al Jazeera, “UN:17 new mass graves found in central DRC”, 17 April 2017, - accessed 28 August 2017
The Tribunal is satisfied therefore that the applicant has a well-founded fear of persecution were he to return to the DRC in the reasonably foreseeable future, for reasons of his political opinion.
Relocation
The Tribunal is satisfied that the real chance of persecution relates to all areas of DRC as the perpetrator of the harm is government authorities or representatives of the ruling party. The applicant was harassed and intimidated even when he moved cities in the past.
State protection
As the perpetrator of the harm is government authorities or representatives of the ruling party, state protection is not available to the applicant.
Right to enter and reside
There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in a third country.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)of the Migration Act.
Jane Marquard

Member
ATTACHMENT A: RELEVANT LAW
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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 themself 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).
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.
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
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)   the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)   conceal an innate or immutable characteristic of the person; or
(c)   without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)   the persecution must involve serious harm to the person; and
(c)   the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)   a threat to the person’s life or liberty;
(b)   significant physical harassment of the person;
(c)   significant physical ill‑treatment of the person;
(d)   significant economic hardship that threatens the person’s capacity to subsist;
(e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)   disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)   a characteristic is shared by each member of the group; and
(b)   the person shares, or is perceived as sharing, the characteristic; and
(c)   any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)   the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)   protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)   the person can access the protection; and
(b)   the protection is durable; and
(c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)   the non‑citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non‑citizen; or
(c)   the non‑citizen will be subjected to torture; or
(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2017] AATA 1786

7 September 2017

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