1617695 (REFUGEE)

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 the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. 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 under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. 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.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Section 438 certificate
As a preliminary issue the Tribunal notes that there is a certificate issued by a delegate of the Minister under s.438 of the Act located on the Department’s file which has been provided to the Tribunal.
Section 438 permits the Minister to certify that the disclosure of information may be contrary to the public interest for any reason specified in the certificate: “that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed”.
In summary, the Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal has formed the view that the certificate is valid. The Tribunal disclosed to the applicant a copy of the certificate. The Tribunal explained that the documents that are the subject of the certificate related to enquiries regarding his citizenship status in the Republic of South Africa (RSA). The Tribunal noted that the Department had not received a conclusive response about his citizenship status at the time he lodged his protection visa application.
Jurisdiction
Section 46(1)(d) of the Act relevantly provides that, subject to certain other requirements, an application for a visa is valid only if it is not prevented by s.91P (non-citizens with access to protection from third countries).
Section 91P provides that if Subdivision AK applies to a non-citizen at a particular time, the application is not a valid application.
Section 91N relevantly specifies that Subdivision AK applies to a non-citizen at a particular time, if at that time the non-citizen is a national of two or more countries: s.91N(1).
For the purposes of this provision, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country: s.91N(6).
The Minister has a personal discretion pursuant to s.91Q to determine by written notice that s.91P does not apply to a non-citizen for a period of 7 working days after the notice is given, if satisfied that it is in the public interest to do so.
The Full Federal Court confirmed, in SZOAU v MIAC [2012] FCAFC 33, that where an applicant has more than one nationality at the time of applying for a protection visa, the application is not valid unless there was in force a determination by the Minister under s.91Q that s.91P does not apply to the application. The word ‘national’ in s.91N(1) refers simply to the fact of nationality, and does not call for an enquiry into whether the non-citizen can avail himself or herself of the protection of the country.
Validity of the protection visa application
The critical question that ultimately emerged in this case is whether the applicant is prevented from making the present protection visa application because he is a national of two or more countries.
He arrived in Australia in September 2014 as the holder of a visitor visa. He travelled to Australia to attend a [conference]. The visa ceased [in] October 2014.
The applicant travelled to Australia as the holder of a travel document issued by the RSA. The Tribunal notes that although the bio-data page refers to the document as a “passport” the written explanation inside the document states that it has been “issued in lieu of a national passport.” The travel document remains valid until [2019].
The applicant declared he was born in [Maniema] Province, DRC on [date]. He is from [specified] ethnic group. His father and mother were born in the DRC. He obtained his citizenship by birth. He is a Congolese national.
The applicant relocated to the RSA in [2001] and applied for asylum. He was given a temporary permit which had to be reviewed. In [2002] he was given permission to stay in the RSA for two years, after which date he had to renew his permit.
[In] 2009 he became a permanent resident of the RSA. In support of his evidence the applicant provided a document titled “Formal Recognition of Refugee Status in the RSA” issued by the RSA Department of Home Affairs. The document identified the applicant’s nationality as ‘Congolian (DRC)’.
Importantly at question 42 of his protection visa application the applicant declared that he has a pending application for South African citizenship lodged in 2013, which has not been determined. The Tribunal questioned the applicant about the current status of the citizenship application. The applicant said that he heard that the law had changed in the RSA and he now had to wait 10 years to become a citizen and he does not know the status of his citizenship application and has not heard anything further from the RSA authorities.
The delegate’s decision was made on the basis of the applicant having DRC nationality. At the hearing, the Tribunal had not reached any firm conclusion as to the applicant’s nationality status in the RSA and the DRC, and whether he had dual nationality.
The Tribunal explained to the applicant that a preliminary issue in this matter was whether he was a national of two more countries and this may require the Tribunal to make enquires with the RSA. The applicant agreed to sign a consent form giving the Tribunal permission to make enquires with the government of the RSA about his citizenship/migration status.
The Tribunal received advice by post that the applicant is a permanent resident and his RSA passport is genuine according to the information on the National Population Register (NPR) system. No further information was provided about whether he is on a pathway to citizenship.
The RSA Department of Home Affairs is the custodian of civil registration. Its National Population Register records the status of those within its borders as either a ‘citizen’, ‘permanent resident’ or a ‘refugee’.[1]
[1] Discussion Paper on the Repositioning of the Department of Home Affairs, South African Department of Home Affairs, 19 May 2017, CISEDB50AD9242, p.9.
Information relevant to the document (temporary passport issued [in] 2014) supplied by the applicant was located from the RSA Department of Home Affairs. On 14 August 2014, the Department of Home Affairs published a notice stating that temporary passports and emergency travel certificates would no longer be issued as of 1 September 2014. The notice states the following:
The Department of Home Affairs discontinued the issuance of Temporary Passports since 01 September 2014 and subsequent to that the Emergency Travel Certificates was also discontinued within South Africa.
[…]
These two documents were initially issued as an interim measure due to longer turn-around time to issue a passport. Since the turn-around time has improved drastically it renders the issuance of Temporary Passport redundant hence the discontinuation. Moreover the Department will continue to issue Emergency Travel Certificates to South African citizens abroad under circumstances of emergency travel purposes, e.g. if passport is lost while abroad, proof that an application was submitted on time or on emergency cases; such as family member in distress that need to be assisted immediately or a deceased family member.[2]
On 15 November 2017, the Department of Home Affairs published a notice that announced it had introduced a new version of the travel document for refugees, which replaced the passport that was previously issued. According to the notice:
In another major step towards better refugee and asylum-seeking management, the Department of Home Affairs this month introduced a hugely improved refugee travel document.
The new version Machine Readable Travel Document for Refugees has been designed and developed using the latest passport production technology and security standards to include a pure polycarbonate data-page for personalisation by laser engraving. It is fully compliant with the UNHCR and ICAO (International Civil Aviation Authority) guidelines.
The earlier version was introduced in 2009, but the new version was necessitated after the UNHCR and ICAO published comprehensive international guidelines.
Machine-readable travel documents are more secure. Because security considerations play an ever-increasing role due to the risks of document and identity fraud, they not only increase security and trust among States, but also enhance the level of confidence in the users, in this case, refugees, who will travel with them. They facilitate the safe and regular movement of refugees and thereby reduce the risk of exploitation, abuse, violence and human trafficking.
As with the previous documents, applications for the Refugee Travel document must still be lodged at Refugee Reception Offices. After this, an interview will be conducted with refugee to establish the purpose of travel and the destination as well as to inform him/her of the consequences should he/ she travel to his/ her country of origin from whom he/ she fled due to persecution. The latter could lead to withdrawal of his/ her refugee status should he/ she travel to his country of nationality).
Holders of valid Refugee Travel Documents will still be allowed to use the existing travel documents until the date of expiry. The document will be valid for the same period of the validity of the Section 24 refugee permit.[3]
[2] Discontinuation of Issuance of Emergency Travel Certificates, South African Department of Home Affairs, 19 August 2014, CISEFCB23F7666.
[3] Department of Home Affairs launches improved Refugee Travel Document, South African Department of Home Affairs, 15 November 2017, CISEDB50AD9236.
The Department of Home Affairs published a notice on 8 May 2017 advising that those who applied for permanent residence prior to 2 June 2014 are required to re-submit their applications to the department:
The Department of Home Affairs received permanent residence applications prior to 02 June 2014 utilising the Track and Trace system. The Department has noted that it does not have 4 616 applications on hand as per Track and Trace system.
In this regard, Mr Mkuseli Apleni, the Director-General of the Department of Home Affairs, under the powers vested in him under Sections 26 and 27 of the Immigration Act, 2002 (Act no. 13 of 2002) as amended, hereby gives notice that persons whose particulars appear in a list published in the National Government Gazette No 40691 on 17 March 2017 ( who applied for permanent residence prior to 02 June 2014, at their earliest convenience and without delay, re-submit their permanent residence applications online through the Department of Home Affairs Contact Centre. The persons whose particulars appear on the published list will be afforded a period starting from 15 May 2017 to 31 July 2017 to re-submit the applications. The Department of Home Affairs will not accept any applications submitted after the stipulated period.
[…]
Those applicants who already received their permanent residence permits and whose names appear on the list are advised to provide a copy of the permanent residence permit to: [email protected] and applicants need not re-apply.

The notice refers to a gazette number [deleted], which lists the names of those individuals who need to re-apply. The name of the applicant is not listed in the gazetted notice.[4]
[4] [Source deleted].
Information obtained from the Department of Home Affairs website about the procedure for asylum seekers to gain refugee status includes information about acquiring permanent residency. According to the outlined process, an asylum seeker is granted an immigration permit or permanent residence after five years of continuous residence in the RSA as a formally recognised refugee:
Certification
·     The applicant must have 5 full years continuous residence in the Republic of South Africa as a formally recognized refugee not as an asylum seeker
·     Write an application letter explaining the reasons for applying for the certification
·     Go to the initial refugee reception office where application for asylum was first lodged and complete the form. The Refugee Reception Office will ensure that the applicant complies with all the requirements
·     The application will be referred to the Standing Committee for Refugee Affairs which is the body established to certify or not if the applicant will remain a refugee indefinitely
·     If successful, the applicant will then be issued with a “Certification” or Section 27(c) which will enable the applicant to apply at any Home Affairs office for an “Immigration Permit” or “Permanent Residence”.[5]
[5] Refugee Status & Asylum, South African Department of Home Affairs, accessed 30 October 2018, CIS7B839419946.
The Tribunal has had regard to the country information referred to above and the limited information provided by post regarding the status of the applicant’s citizenship application. The Tribunal finds that there is no evidence to confirm that the applicant has been granted citizenship by the RSA and he is not a national of the RSA.
The Tribunal finds the applicant is a national of the DRC, based on published official advice that a person acquires DRC citizenship through birth to a DRC citizen parent through the legal principle of jus sanguinis.
Based on the above information the Tribunal finds the applicant has made a valid application and the Tribunal has jurisdiction to hear the review application.
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 EVIDENCE
Issue
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].
[In] October 2001 he travelled to the RSA. It was only in about January 2002 that he found out that RCD soldiers had killed his wife and [a child]. His [other children] survived because they were not at home at the time.
The applicant claims that if he returns to the DRC he will be arrested on arrival and killed. If he is deported by RSA authorities, the government will alert the DRC authorities about his arrival. He will be killed or tortured in prison. He claims that people who returned from overseas are assumed to be advocating for Congo. Any person who brings attention to human rights abuse can be arrested and disappear. Educated people, such as himself, are seen as a threat to the government. He will not be safe anywhere in the DRC because the military would be able to locate him. Rebel groups continue to operate in the [part] of the country, where he comes from. The same people who harmed him from the RCD-Goma are still part of these groups. He fears they would still harm him if he returned in the reasonably foreseeable future. He also fears harm in the DRC because of his anti-government political opinion and because of his membership of a particular social group, Congolese returning from other countries and educated people and because he is a member of [a particular] tribe. He has been to Rwanda and knows that the people in power in the DRC are from Rwanda and this information could also cause people to rise up against the government.
It was submitted that the applicant has expressed strong anti-government opinion in response to human rights abuses perpetrated by Joseph Kabila and the Congolese government. He claims to have expressed these views when he was living in the RSA. In addition, anti-government opinion was imputed to him when he was last in the DRC, due to the time he spent in Rwanda, and because he had been in Goma, in rebel held territory.
He fears he will be persecuted in the DRC due to his lengthy absence and because he is an educated person and will be viewed as anti-government. By way of example he refers to a Congolese [student] who completed his studies in the RSA and returned to the DRC and was killed. The applicant claims the government suspected that because he had been outside the country he would use his education to convince people to fight against corruption and he was killed in [2013]. He claims it is common for educated people to be killed.
The applicant states that he is from [a specified] tribe which originates [in] the DRC. He claims that the government does not appoint Congolese people to its ranks, favouring instead those from outside countries.
The applicant claims that in [2004] when he was in the RSA there was a demonstration against foreigners taking jobs that belonged to South Africans. He claims he was targeted because he was a foreigner who was employed at the time. A man and his wife beat him with a stick. The police broke up the demonstration and took him to hospital for treatment. He made a statement to the police. He provided a medical report in support of his claims. He claims the case was registered with the courts but no charges were laid; no reason was given. He claims this incident and others demonstrate that foreigners would never be accepted in the RSA.
In May 2008 he was in Gauteng when he was stopped by a mob and injured with a knife. He showed his student card and was able to avoid further violence. He claims to know a foreign student who was set alight. He claims foreigners in the RSA do not receive proper assistance from the police.
The applicant claims he has expressed anti-government opinion in response to human rights’ abuse perpetrated by Joseph Kabila and the Congolese government. He claims to have expressed these views in the RSA through his participation in demonstrations.
He regularly met with people from [a Congolese community group] in RSA. In 2011 he was elected [office holder] of the [group]. The [group] was made up of about [number] members. [Details deleted]. They also discussed politics and the situation in the DRC.
As part of the Congolese community he took part in a demonstration [in] June [2013]. The demonstration was registered and about [numbers deleted] people attended. The police attempted to stop the demonstration when it approached [an] embassy. People were arrested. He did not experience any trouble from his involvement. He claims that investigations continue regarding those who organised the demonstration.
He took part in a second demonstration in June 2014 that led him to leave the RSA. The [the community group] applied to register the event with the police on [several] occasions. The police refused to register the event. He believes that registration was refused because of the political relationship between Jacob Zuma (former president of the RSA) and Joseph Kabila, President of the DRC. [Details deleted].
He claims the police attended at his house the next day and searched for him. He was hiding at the university. He travelled to [country name deleted] to hide. He did not cross through customs and travelled without permission.
He claims [other] people were arrested and [number deleted] were [deported] and are now in prison. He provided an article in the French language which he claims supports his claims. He fears his name may have been given to the police. He claims that even if his name had not been given to the police the police are still investigating and looking for the remaining organisers.
In [2014] he submitted an [article] so that he could be considered for a conference to be held in Australia. His [article] was accepted and he applied to renew his RSA travel document through a contact within the passport office and travelled to Australia.
In July 2014 he resigned from his position on the [community group], kept a low profile at the university and only went home late in the evenings. He claims he was safe at the university and the police did not appear to know he was there.
He claims that even if he were to obtain citizenship, this would not give him protection in the RSA. The police are uninterested in preventing, and at most are complicit, in the discrimination directed towards foreigners. He claims that while he was able to manage to deflect some attention by demonstrating that he was a student, this is no guarantee of protection in the future.
He fears that the political allegiance between the DRC and the RSA has caused the authorities to put in place an arrangement whereby the RSA will return him to the DRC because he is a person involved in organising political demonstrations against the DRC. He claims to know of [participants] who took part in protests who were deported back to the DRC. He claims he is still in danger in the DRC, even though he left [years] ago.
Insecurity continues and the same people are in power. Both the rebels collaborating with Rwanda and the DRC government soldiers wanted to kill him. Soldiers from the unification of these two governments are scattered throughout the DRC. New problems have arisen, such as killings and arrests of human rights and civil society defenders and civilians who disagree with the government. He will be considered a person who is destabilising the government. For example, he knows that the DRC president is a Tutsi Rwandan and not Congolese.
The Tribunal explained to the applicant that it must assess his claims for protection looking to the reasonably foreseeable future. The Tribunal observed that he had left the DRC in 2001 and asked why he could not return back to the DRC in the future. The applicant maintained that the situation has gotten worse than before and claims he cannot return for the following reasons: there is no respect for human rights in the DRC; people get arrested for no particular reason and are killed; the authorities do not want to hear from people who want to improve the lives of the general population; and the country is corrupt.
The Tribunal asked the applicant if he had been involved in politics in the DRC. The applicant said that everyone is forced into politics even if you don’t want to talk about it. By way of example, the applicant said that if you want to get on a bus you have to rush. Even having a conversation about such issues can result in a complaint being made to the Department of Home Security which will ask to see your papers and if you don’t have papers from that country there will be trouble. The Tribunal noted that the applicant was not a foreigner and was a national of the DRC. The applicant maintained that he was like a foreigner because he spoke out for the population.
The Tribunal questioned the applicant about his [specified] ethnic identity. The applicant said that the [specified] tribe is very large in the area where his family live in the DRC.
Third country protection
Section 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
The right to which s.36(3) refers is not merely a right to enter, but must consist of a right both to enter and reside.[6] The Federal Court has held that a 'right to enter and reside' as envisaged in s.36(3) must be a 'legally enforceable right.'[7] The Australian courts have held that the right referred to in s.36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy.[8]
[6] WAGH v MIMIA (2003) 131 FCR 269 per Hill J at [64].
[7] Applicant C v MIMA [2001] FCA 229 (Carr J, 12 March 2001), Kola v MIMA [2001] FCA 630 (Mansfield J, 30 May 2001) at [36], upheld by the Full Federal Court in MIMA v Applicant C (2001) 116 FCR 154 and Kola v MIMA (2002) 120 FCR 170 at [63] respectively.
[8] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001).
In particular, the issue in this case is whether the applicant has a right to reside in the RSA.
As detailed above the applicant confirmed that he relocated to RSA in October 2001 and was granted refugee status. He became a permanent resident of the RSA in November 2009. The Tribunal finds that the applicant has a legally enforceable right to enter and reside in the RSA. The Tribunal finds that s.36(3) applies and the next issue for the Tribunal to determine is whether one or more of the qualifications contained in subsections (4), (5) an (5A) limit the operation of s.36(3) (qualifications).
In short, Australia is taken not to have protection obligations in respect of a person who:
·     Has a right to enter and reside in any other country - whether permanently or temporarily; and
·     Has not taken all possible steps to avail him/herself of that right;
Provided that:
·     He or she does not have a well-founded fear of Convention-based persecution in that country;[9] or there are not substantial grounds for believing that, as a necessary and foreseeable consequence of availing themselves of the right to enter and reside in that country, there is a real risk he or she will suffer significant harm;[10] and
·     He or she does not have a well-founded fear of refoulement from the other country to a country where:
o   He or she has a well-founded fear of Convention-based persecution;[11] or
o   There are substantial grounds for believing there is a real risk he or she will suffer significant harm (as a necessary and foreseeable consequence of availing themselves of the right to enter and reside).[12]
[9] Section 36(4)(a).
[10] Section 36(4)(b).
[11] Section 36(5).
[12] Section 36(5A).
The Tribunal discussed the operation of s.36(3) with the applicant at the hearing. The Tribunal referred the applicant to country information detailed in the delegate’s decision and noted that the RSA is a signatory of the Refugees Convention.
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).
DECISION
118. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Christopher Smolicz
Member

Key Legal Topics

Areas of Law

Immigration
Administrative Law

Legal Concepts

Judicial Review
Procedural Fairness
Statutory Construction
Jurisdiction
Natural Justice
Standing

[2018] AATA 5246

13 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing