1617695 (REFUGEE) - [2018] AATA 5246

1617695 (REFUGEE) [2018] AATA 5246 (13 DECEMBER 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1617695
COUNTRY OF REFERENCE:                  Congo, Democratic Republic of
MEMBER:Christopher Smolicz
DATE:13 December 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 13 December 2018 at 2:51pm

CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – fear of persecution – fear of future harm – particular ethnic group – anti-government political opinion – educated person – member of a specific tribe – permanent resident of South Africa – no chance of convention related harm in South Africa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91
Migration Regulation 1994, Schedule 2
CASES
Applicant C v MIMA [2001] FCA 229
Kola v MIMA [2001] FCA 630
Kola v MIMA (2002) 120 FCR 170
MIMA v Applicant C (2001) 116 FCR 154
Suntharajah v MIMA [2001] FCA 1391
SZOAU v MIAC [2012] FCAFC 33
WAGH v MIMIA (2003) 131 FCR 269
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of the Democratic Republic of the Congo (DRC), applied for the visa [in] October 2014 and the delegate refused to grant the visa [in] October 2016.
The applicant appeared before the Tribunal on 27 July 2018 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1617695 (REFUGEE)

Details

AGLC: 1617695 (REFUGEE) [2018] AATA 5246
Case: [2018] AATA 5246
Decision Date: 13 December 2018

CaseChat Overview and Summary

The applicant, a national of the Democratic Republic of Congo, sought a protection visa, claiming fear of persecution in his home country due to his anti-government political opinion, his status as an educated person, and his membership in a specific tribe. He also claimed fear of harm in South Africa, where he was a permanent resident, due to being a foreigner and his involvement with a Congolese community group, asserting a lack of state protection. The Tribunal was required to determine whether the applicant had a well-founded fear of persecution or significant harm in either the Democratic Republic of Congo or South Africa, and whether Australia had protection obligations towards him.

The Tribunal considered the applicant's claims in light of country information and his personal history. It found that while the applicant had experienced discrimination and violence in the past, including an arrest and torture in the Democratic Republic of Congo and incidents of violence in South Africa, these did not establish a well-founded fear of Convention-related harm in South Africa. The Tribunal noted that the applicant was a permanent resident with legally enforceable rights to reside in South Africa, had a history of employment and study there, and had travelled internationally without issue. It found his claims of being a person of interest to South African authorities to be inconsistent with his ability to obtain travel documents and maintain contact with authorities. The Tribunal accepted that discrimination and crime existed in South Africa but concluded that there was no evidence the applicant would be denied police protection for Convention-based grounds.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Protection visa. It was not satisfied that the applicant faced a real chance of serious harm or systematic and discriminatory conduct in South Africa for any Convention-related reason, nor that he faced a real chance of persecution in the Democratic Republic of Congo. The Tribunal also determined that Australia did not have protection obligations towards the applicant under the Refugees Convention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal is satisfied that that the DRC is the country or reference/receiving country for the purpose of assessing this application. CONSIDERATION OF CLAIMS AND EVIDENCEIssue The applicant claims to fear harm in DRC because:· Of his anti-government political opinion; · He will be viewed with suspicion returning the from other countries; · He is an educated person;· He is a member of [a specified] tribe. The applicant also claims he fears harm in the RSA because he is a foreigner in South Africa and because of his involvement with the Congolese [community group]. He claims there is no state protection for foreigners in the RSA. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Summary of substantive claims for protection The applicant provided statutory declarations dated 20 October 2014, 19 December 2014 and 29 October 2015 setting out his claims for protection. He also took part in an interview with the delegate, a summary of which is contained in the delegate’s decision. On 7 January 2017 the applicant provided the Tribunal with an undated statement responding to the delegate’s findings and providing further evidence in support of his claims. The applicant said that he completed a Bachelor [degree] in the DRC and a Master [degree in] Pretoria. He commenced his PhD thesis [in] the RSA but was not able to obtain his doctorate because he feared for his life and could not continue to study. In the period 1997 to 2001 the applicant was employed in [Rwanda]. One of his managers in Rwanda did not like Congolese employees and the applicant felt discriminated against. The applicant was eventually dismissed and did not receive outstanding wages. When he asked for his wages he was threatened with violence. He left the position and returned to the DRC via Goma in August 2001. His wife and [children] remained in Goma. He was also caring for [extended family] and at the time he could not continue to financially support them. At the time Goma was under the control of the Rassemblement congolais pour la démocratie (RCD), which was supported by the Rwandan government. [In] August 2001 he was arrested by Rwandan rebel soldiers in his home in Goma in the presence of his wife and children. He was [imprisoned]. He managed to escape with the assistance of a soldier who knew him from the time when he worked in Rwanda. He left his family in Goma and joined displaced people moving to the RSA looking for work. He subsequently discovered that his wife and one of his children had been killed by the same people who were following him when he fled Rwanda. He arrived in government controlled Lubumbashi (DRC) in October 2001. He was detained and questioned when soldiers found he had been in Goma. He was beaten and accused of being a spy because he had been to Rwanda. The soldiers interrogated and tortured him and told him he had been put on a black list of anti-government people who had been in Rwanda. They assumed that anyone from Rwanda was Tutsi and anti-government and did not believe the applicant was Congolese. He escaped when the prison was [attacked].

Decision

Reasons for decision

In relation to refoulement, the US Country Report on Human Rights Practices for 2015 states:There were no specific reports of the government forcibly returning refugees to countries in which their lives would be in danger. Refugee rights NGOs, however, expressed concern that Operation Fiela – a government campaign to combat crime by targeting neighborhoods with historically high immigrant populations – may have led to the quick arrest and deportation of individuals without adequate asylum screening. The operation rounded up and repatriated more than 15,000 irregular immigrants from April 28 to year's end. Additionally, Burundian nationals displaced during April violence in Durban complained the DHA initially refused to renew their asylum documents despite continued instability in Burundi, leaving them open to deportation if discovered by police. The DHA disputed the claim, noting it renewed Burundian documents after the violence there started. Observers also reported the government refused entry to asylum seekers who could not show positive identification or who passed through a "safe country of transit."[13][13] United States Department of State, 2015 Country Reports on Human Rights Practices - South Africa, 13 April 2016, available at: >Importantly the Tribunal notes that the more recent US Country Report on Human Rights Practices states that unlike in previous years, there were no reports the government forcibly returned refugees to countries in which their lives would be in danger.[14][14] United States Department of State, 2016 Country Reports on Human Rights Practices - South Africa, 3 March 2017, available at: >The Tribunal notes that the applicant’s profile is different from those targeted by Operation Fiela. The applicant was granted refugee status and is a permanent resident of the RSA. Prior to arriving in Australia the applicant has been living, studying and working in the RSA for [years]. He has a legally enforceable right to reside in the RSA. He is not an undocumented illegal/irregular immigrant. The applicant said that on a personal level he attempted to integrate but there is discrimination in South African society. By way of example the applicant said that when he studied he was integrating with fellow South African students, however when he applies for an internship or a job the local South Africans are given preference.The applicant provided details of his employment history in the RSA. The Tribunal finds that this background evidence is relevant in assessing his fears of harm in the RSA. Specifically, the Tribunal notes that from November 2001 to December 2004 the applicant was working as a [occupation] in the RSA. From May 2007 to August 2008 he worked for [another employer]. From September 2008 to December 2009 he was employed by [another employer]. From January 2010 he commenced working for [another employer]. From 2012 to 2014 he worked for [another company]. The Tribunal notes that when the applicant was employed at [one of the companies] he was able to travel on a mission to [country name deleted] in 2010. In 2012 he was granted a [visa] and travelled overseas and presented papers at conferences in [country name deleted] (2012) and [country name deleted] (2013). The applicant confirmed that he did not apply for protection when he was in [country name deleted] because that was the start of his studies.The Tribunal questioned the applicant about why he fears persecution in the RSA.The applicant said that there were a number of occasions when he nearly died. For example, in 2004 he was working as [occupation deleted] with other foreign employees. [Organisation name deleted] was a refugee organisation assisting poor rural communities. [In] December 2004, members of the organisation were attacked by the local population. He was injured but some other employees managed to flee. He was targeted because he was in charge at the time. The police arrived and saved him and took him to hospital. After that incident he left that area and returned to Pretoria to study. He was attending English classes and was enrolled at university studying his Master’s degree. The applicant said he was involved in another attack in 2008. He was not getting any work and was [doing certain work] to make extra money. There was a large protest against foreign workers. He was caught up in the ambush, beaten and stabbed and taken to hospital. He does not know who attacked him. He was not specifically targeted but was got caught up in the riot and attacked. A third incident occurred in 2012 when Congolese people were being targeted in the RSA. In 2013 he became [an office bearer] of the [community group]. He organised [meetings]. He worked in a voluntary capacity. The [community group] was registered with the RSA. When questioned at the hearing the applicant said he did not have any official documents to confirm his involvement in the [community group]. The Tribunal asked the applicant on a number of occasions to explain his problems with the RSA authorities. The applicant said he was concerned about the close relationship between Jacob Zuma (the former President of the RSA) and Joseph Kabila, President of the DRC. He wants the RSA government to stop supporting the government of the DRC.The Tribunal noted that Zuma was no longer the President of the RSA and the political landscape of the country had changed since he left the country and travelled to Australia.The Tribunal asked the applicant if he had problems with the police in the RSA. The applicant referred to the demonstration held in June 2014. The demonstration was not authorised because they were refused registration. He was organising the demonstration. The police came but he managed to escape. The applicant said that he moved house all the time to avoid being located by the authorities. The Tribunal noted that the police knew where he lived and could have arrested him at any time. The Tribunal note that the applicant was studying his PhD and attending university and could have been easily located by the authorities if they wanted to arrest him. The applicant maintained that for the authorities to find him they needed to know where his office was. The Tribunal told the applicant that if the authorities were interested in him they could have easily found him. The Tribunal referred the applicant to the documents he provided from the South African authorities relating to his refugee status. According to the documents he was required to have regular contact with the authorities and maintain his registration and address details. The Tribunal also noted that he was issued with a Travel Authority [in] July 2014. That document enabled the applicant to depart the RSA and travel to Australia. The applicant claimed he obtained the document before the authorities were looking for him. The Tribunal referred the applicant to his earlier evidence where he claimed the authorities were looking for him in June 2014. The applicant maintained that he applied for the document before the issues with the authorities. The Tribunal asked the applicant if he had ever been interrogated by the South African authorities. The applicant said that he had never been interrogated because he had not been caught.100. The Tribunal found the applicant’s evidence about his involvement in the [community group] vague and lacking in detail. The Tribunal does not accept the applicant was the President of the [community group] or played any role in organising protests and demonstrations in the RSA. The Tribunal does accept that the applicant was an ordinary member of the [community group] and would meet with other Congolese refugees when he first arrived in the RSA. The Tribunal also accepts the applicant may have taken part in demonstrations in the RSA which were organised by the [community group]. The Tribunal notes that the RSA has laws which enshrine the right to assemble and protest. 101. Country information confirms that “Since the demise of apartheid, South Africa has made impressive strides in securing a legal framework for the exercise of civil and political rights, including constitutional recognition of the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions. In the South African context, the right to protest lies at the heart of the political and legal contestation of the right to assembly.”[15][15] The right to freedom of assembly, demonstration, picket and petition within the parameters of South African law, Simon Delaney, see also A landmark win for the right to assemble and protest, in South Africa and beyond, 20 March 2018 The Tribunal finds that the applicant will be free to continue to be a member of the [community group] and voice his political views in the RSA. 103. As detailed above, the applicant was granted refugee status by the RSA. In regard to the status of refugees:The Refugee Act (1998) encapsulates South Africa’s commitment to relevant international legal instruments, principles and standards relating to refugees and their legal status, as well as refugees’ associated rights and obligations. The Act specifically states that all refugees are entitled to full legal protection, including the rights set out in the Bill of Rights (Chapter 2 of the 1996 Constitution). The Bill of Rights enshrines the fundamental, civil, social and economic rights of all people living in South Africa and affirms the democratic values of human dignity, equality and freedom. It gives everybody living in South Africa equal rights in all spheres of life and social interaction, with the exception of political rights which are only available to citizens.[16][16] Political Participation of Refugees The case study of Congolese Refugees in South Africa: It is evident from the correspondence issued by the RSA Department of Home Affairs that the applicant was required to maintain regular contact with the South African authorities to maintain his refugee status. The Tribunal finds this evidence is inconsistent with the applicant’s claims that he was a person of interest but the South African authorities were unable to locate him.105. The Tribunal also notes that the applicant was granted a travel document and regularly travelled outside the RSA without any trouble from the authorities. The Tribunal does not accept the applicant was a person of interest to the South African authorities because he was a foreigner or because of his involvement in the [community group] or because he organised anti-government demonstrations. 106. The Tribunal accepts that there is a level of discrimination against foreigners and a high level of generalised crime in the RSA and that the applicant may have been injured in January 2005 because he was a foreigner. The Tribunal notes, however, the applicant gave evidence that the police took him to hospital for treatment. The applicant was able to report the incident to the police and the case was registered with the courts, although no charges were laid. The Tribunal finds that there are many legitimate reasons which could explain why the police may not have been able to lay charges in the matter such as the reliability and /or availability of evidence or resourcing issues. 107. Country information confirms that while shortcomings in police enforcement are evident, the South African constitution and laws provide for an independent judiciary, and the government generally respects judicial independence and practice. However, the UK Operational Guidance Notes also observe that the judiciary was understaffed and underfunded, and there were reports that legal documents used in trials were lost. [17][17] UK Operational Guidance Note, 7 March 2013, para 2.2.13.108. The UK Operational Guidance Notes report that despite continued efforts to professionalise, the South African Police Service (SAPS) remained under staffed, ill equipped and poorly trained. Law enforcement activities remained focused on wealthy residential and business areas. Police are badly underpaid, and corruption in the SAPS is a significant problem.[18] [18] UK Operational Guidance Note, 7 March 2013.109. The Tribunal finds that corruption, inefficiency and poor training within the SAPS impacts on all members of South African society. The Tribunal has had regard to the applicant’s evidence and finds that authorities did not withhold him protection because he was a foreigner or member of the [community group] for any other Convention reason.110. The Tribunal accepts that given the inadequate levels of police resources, training and corruption the police response can be inadequate in the RSA. The Tribunal finds, however, that there is no evidence to suggest that the applicant would be denied police protection in the RSA for any Convention-based grounds in the reasonably foreseeable future. 111. In conclusion, the Tribunal finds that the applicant does not face a real chance of serious harm and systematic and discriminatory conduct directed at him for the essential and significant reason of his political opinion, race or any other Convention related ground in the RSA. The Tribunal finds that the applicant does not face a real chance of persecution now or in the reasonably foreseeable future if he returns to the RSA. His fear of persecution is not well-founded. 112. The Tribunal has also had regard to the applicant’s nationality, profile and political involvement in the RSA and it does not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the RSA there is a real risk he will suffer significant harm. 113. The Tribunal has had regard to country information and the applicant’s profile both in the DRC and the RSA and is not satisfied that there is a well-founded fear of the applicant being forcibly returned to the DRC or any other country where he has a well-founded fear of Convention-based persecution or where there are substantial grounds for believing there is a real risk he will suffer significant harm. The Tribunal finds that the applicant’s fear of refoulement is not well-founded. 114. The Tribunal finds that Australia is taken not to have protection obligations to the applicant pursuant to s.36(3). The Tribunal also determines that one or more of the qualifications contained in s.36(4), 36(5) or 36(5A) do not apply.115. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).116. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).117. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).DECISION118. The Tribunal affirms the decision not to grant the applicant a Protection visa.Christopher SmoliczMember

Ratio Decidendi

Legal Principle Established

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