1620880 (Refugee)

[2019] AATA 3426

1620880 (Refugee) [2019] AATA 3426 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620880

COUNTRY OF REFERENCE:                   Congo, Democratic Republic of

MEMBER:Jason Pennell

DATE:20 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 February 2019 at 10.03am

CATCHWORDS

REFUGEE – protection visa – Democratic Republic of Congo – Rwanda – race – Rwandophone ethnic group – particular social group – Tutsi tribe – imputed political opinion – opposition to M23 rebels – desertion from M23 rebel group – fear of detention – fear of recruitment by militias – travel on Rwandan passport – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
SZRTC v MIBP (2014) 224 FCR 570
WAGH v MIMA (2003) 131 269

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

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 November 2016 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).

2.The visa applicant applied for the visa on 1 September 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (the Act)

3.The applicant appeared before the Tribunal on 8 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.

4.The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5.For the following reasons, the Tribunal has concluded that the matter should be affirmed.

RELEVANT LAW

6.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

7.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).

8.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.’

1. 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.

2. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

3. Second, an applicant must fear persecution. Under s.91R (1) of the Act persecution must involve ‘serious harm’ to the applicant,[1] and systematic and discriminatory conduct.[2] 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.

   [1] s.91R(1)(b)

   [2] s.91R(1)(c) of the Act

4. 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.

5. 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.[3]

   [3] s.91R(1)(a) of the Act

6. 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.

7. 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.

8. 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

1. 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’).

2. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A).[4]  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.[5]

   [4] s.5(1) of the Act

   [5] s.36(2B) of the Act

Section 499 Ministerial Direction

1. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicants’ history/migration history

1. The delegate’s decision dated 27 October 2016[6] notes that on 26 May 2014 the applicant applied for a [temporary] visa (subclass [number]) to attend [an event] in [Australia], representing [Agency 1]. The applicant arrived in Australia [in] July 2014. On 29 August 2014 the applicant applied for a Protection Visa (subclass 866). He currently holds a Bridging Visa (subclass 010) granted in association with his protection visa application.

Country of Reference

[6] Opcit @ p.2

1. The applicant claims that he is a citizen of the Democratic Republic of the Congo (‘the DRC’). His evidence was that he was born and raised in Goma, DRC. The applicant provided the Tribunal with his DRC voter’s card[7] which was issued [in] 2011. The applicant’s evidence to the delegate, which the Tribunal accepts, was that in obtaining the voters card he filled in a form, queued in front of an office and was provided the card. He said that no documentation was provided for the issuance of the voter’s card, apart from the information regarding his schooling, parent’s details and their place of birth.    

   [7] OP Cit f105

2. However, the Department's file ([number]) (‘the Department file’) contains a photocopy of the applicant’s passport issued by the Republic of Rwanda[8] issued [in] 2014.  The applicant arrived in Australia [in] July 2014 using his Rwandan passport. The copy of the applicant’s passport on the department file shows that, prior to arriving in Australia the applicant had also travelled to [Country 1] and [Country 2] on his Rwandan passport in June 2014.  In addition, the departments fingerprint match report dated [in] September 2014[9] indicates that the applicant had applied for a visa to travel to [Country 3] claiming to be a Rwandan citizen, [in] May 2012 in Kigali, Rwanda.

   [8] Departmental file ([number]) @ f59-82.

   [9] Op Cit f101-103

3. Finally, in February 2014 the applicant used the passport to register [to] attend [an event] in [Australia] for and on behalf of ‘[Agency 1]’. The Departments record indicates that the applicant worked as [Position 1] with [Agency 1].  It refers to the fact that the applicant provided a work contract, payslips and bank statements as evidence of his employment with [Agency 1] in support of his application for a [temporary] visa.[10] In addition, the applicant’s Travel Authorisation Form from [Agency 1][11] and Letter of Invitation from the [event] dated [in] February 2014 indicate that the applicant was employed by [Agency 1].[12]

   [10] Op Cit f101

   [11] Op Cit f95

   [12] Op Cit f96

4. Therefore, contrary to the applicant’s claim that he had resided in DRC his entire life[13] it appears that the applicant was living and working in Rwanda, particularly from 2012. He possessed a Rwandan passport and used it as a Rwandan citizen to travel outside the country and to apply for a [Country 3] visa. Nevertheless, the applicant asserted that his passport was fraudulently obtained through a friend, known as [Mr A], who worked for [a government agency] of Rwanda. He claims that he provided [Mr A] with his name, date of birth a photograph and signed a form for the passport. He says that he does not know how [Mr A] obtained the passport but that he has friends at the immigration office. The applicant did not provide any further evidence or information to support his claim that the passport has been obtained fraudulently.

   [13] Applicants statutory declaration dated 29 August 2014;Departmental file ([number])@f87

5. In February 2014, the German Institute for Global and Area Studies (GIGA) reported that despite being generally being regarded as one of the least corrupt countries in Africa, service delivery by government officials in Rwanda is subject to corruption. Nevertheless GIGA noted that corruption during the issuing of official documentation is ‘the exception rather than the rule. In addition, the Freedom House Report for 2018[14] noted that the government does take measures to limit corruption, including regular firings and prosecutions of low-level officials suspected of malfeasance. For example, it reported that in February 2017 the police dismissed 200 officers who had been implicated in corruption. However, it notes that graft remains a problem, and few independent organizations or media outlets are able to investigate or report on corruption issues due to fear of government reprisals.

   [14]   Freedom House, ‘Freedom in the World’ Rwanda Report 2018 >

   In contrast the DRC voters’ card is described as a proof of identity and is used for the purposes of obtaining passports.[15] Voters’ cards were issued in the DRC between June 2005 and February 2006 as a temporary identity card and were issued for free through registration centres throughout the country. To acquire one, requesters had to present documents, including a certificate of loss of an identity paper or a passport.[16] In 2010, a new electoral list was established for the 2011 elections and existing voters’ cards were withdrawn from circulation and replaced with a new card.[17]

   [15]  CISE1310071788: US Embassy Democratic Republic of Congo 2009, DRC passports and Corruption: yet another Challenge to Good Governance in the Congo, 17 December 2009, WikiLeaks; Canada: Immigration and Refugee Board of Canada, Democratic Republic of the Congo: Whether voter's cards have continued to be issued since the 2006 elections or whether they were only issued during the elections period; the documents required to obtain the card and the authorities that issue it (2006-2010), 29 November 2010, COD103637.FE, available at: 31 January 2019]

   [17] Ibid

6. The website for the Independent National Electoral Commission (Commission électorale nationale indépendante, CENI) in the Democratic Republic of Congo (DRC) indicates that it is the institution responsible for identifying and registering voters and that it determines the start and end dates of those operations. Voter cards are delivered when the voter is registered on the voter list and remains valid only until the next nationwide election.[18]

   [18] Canada: Immigration and Refugee Board of Canada, Democratic Republic of Congo: Voter cards, their appearance, security features and uses; requirements and procedures for obtaining a voter card (2014-July 2018), 17 July 2018, COD106123.FE, available at: 31 January 2019]

7. The Country Information reports[19] that corruption in the DRC is widespread and endemic. While the law provides criminal penalties for official corruption, it is not enforced by the authorities. As a result, corruption remains endemic throughout the government and security forces. According to the World Bank's Worldwide Governance Indicators, ‘official corruption was a severe problem’ as the public perceived the government to be widely corrupt at all levels.[20]

   [19]   Ireland: Refugee Documentation Centre, Democratic Republic of Congo: Information on corruption and police corruption in the Democratic Republic of the Congo, 18 February 2011, Q13372, available at: 31 January 2019]

   [20] ibid

8. According to the President of Congolese Association for Access to Justice, [21] the prevalence of fraudulent documents ‘is mainly due to the dysfunction of the public administration, and to corruption, influence-pedalling and the prevailing culture of impunity’.[22] In correspondence with the Research Directorate, the Director of the Centre for Human Rights and Humanitarian Law, an NGO located in Lubumbashi, in the province of Katanga, stated that fraudulent documents are being produced by government employees who ‘often erase any traces of their crimes, with a few exceptions’[23]. The representative of the Embassy of Canada in Kinshasa also stated that there is ‘a thorny problem of impunity at all levels, with an unwieldy and ineffective bureaucracy.’[24]

   [21] Immigration and Refugee Board of Canada, Democratic Republic of the Congo: Prevalence and availability of fraudulent identity, administrative and legal documents

   (2011-February 2014) Research Directorate, Immigration and Refugee Board of Canada, Ottawa 10 April 2014; Op Cit (ACAJ 20 Mar. 2014)

   [23] Op Cit (ACAJ 20 Mar. 2014)

   [24] Op Cit (Canada 26 Mar. 2014)

9. The voter cards have been the subject of corruption as sources report that on August 20, 2017, the private secretary to the Deputy Prime Minister and Minister of Foreign Affairs was arrested at the Mbuji-Mayi airport after he was found to have voter cards in his possession.[25] In addition, it was reported that in or about 2013 the M23 movement seized equipment used to produce voter cards, which were produced in the Kivu region. According to Radio Okapi a man accused of falsifying cards, who was arrested in November 2013 in North Kivu allegedly, falsified ‘hundreds of cards.’ The man claimed that he acted under threat of the rebel movement which had provided him with the necessary equipment.[26]

   [25] Canada: Immigration and Refugee Board of Canada, Democratic Republic of Congo: Voter cards, their appearance, security features and uses; requirements and procedures for obtaining a voter card (2014-July 2018), 17 July 2018, COD106123.FE, available at: 31 January 2019]

   [26] Immigration and Refugee Board of Canada, Democratic Republic of the Congo: Prevalence and availability of fraudulent identity, administrative and legal documents

   (2011-February 2014) Research Directorate, Immigration and Refugee Board of Canada, Ottawa 10 April 2014; >

   According to the Congolese daily newspaper, Le Phare, members of a forgery ring were identified by the police in Kinshasa in October 2012 (Le Phare 25 Oct. 2012). This ring included officials from various government agencies who had falsified voter cards and government employee cards in order to allow non-government employees to receive wages from the government. Additionally, the Congolese daily newspaper, Le Potentiel, reported that a forgery ring producing voter cards was dismantled by the authorities in South Kivu in November 2012 (Le Potentiel 6 Nov. 2012). According to Le Potentiel, voter cards serve as identity cards in the DRC. Le Potentiel also indicated that false cards and false duplicates of cards were distributed to government employees who used them to illegally receive wages in Mbandaka, in Equateur Province.[27]

   [27] Ibid

1. In light of the available country information fraudulent identity documentation is more likely to be prevalent in the DRC than Rwanda and as such the Tribunal places more weight on the applicant’s Rwandan passport than his DRC voter card as to his proof of citizenship.

2. In addition, on the applicants own evidence to the department he has held two Rwandan passports. The applicant has presented and been accepted as a Rwandan citizen when he applied for a [Country 3] visa in 2012 and when he travelled to [Country 1], [Country 2] and Australia in 2014. In addition, he has consistently declared in obtaining the passports that he was born in Burundi, Rwanda. Accordingly, notwithstanding the applicants claim that he was born in DRC and is a citizen of DRC, the Tribunal finds that the applicant is a citizen of Rwanda.

3. As to the possibility of being a dual citizen of Rwanda and DRC, the country information sates that while dual citizenship is accepted in Rwanda[28] it is prohibited in DRC.[29]Accordingly, the Tribunal finds that the applicant cannot be a dual citizen of Rwanda and DRC.

   [28] CISA125423502: The Constitution of the Republic of Rwanda Adopted 26 May 2003, Chapter 3 Article 7.

   [29] CIS9BE2467792: Constitution of the Democratic Republic of the Congo 2005, Chapter 2, Article 10

4. Therefore, based on the available country information, the applicants evidence that he had used his Rwandan passport and he had been accepted as a Rwandan citizen at the time of applying for a [Country 3] visa and when travelling to [Country 1], [Country 2] and Australia in 2014, the Tribunal is satisfied that he is a citizen of the Rwanda and as such finds that Rwanda is the applicant’s country of reference for the purposes of assessing protection obligations under the refugee Convention. The Tribunal is also satisfied that Rwanda is the applicants receiving country pursuant to s.5 of the Act for the purpose of assessing their complementary protection claims.

Effective Protection by a Third Country.

1. The Australia law has established that the right referred to in s.36(3) of the Act is a presently existing temporary or permanent right to enter and reside in another country apart for Australia.  The concept of reside has been observed to mean something more than a short or passing visit.[30]  In WAGH v MIMA[31] Justice Hill observed that while a transit visa was clearly not a right to enter and reside it was a more difficult question to determine whether a tourist visa authorised both entry and (temporary) residence. His Honour noted that it would be unusual, but not an impossible use of the word ‘reside’ when referring to a tourist.

   [30] SZRTC v MIBP (2014) 224 FCR 570 per Tracey and Griffiths JJ @ [28]

   [31] WAGH v MIMA (2003) 131 269 per Hill J @ [65]

2. The website of the Communaaute  Economique des pays Grands Lacs (CEPGL), which is made up of the Democratic Republic of the Congo (‘the DRC’), Rwanda, and Burundi and arrangement was established freedom of movement among the three countries for all citizens of the three countries was adopted in 1980 and amended in 2011.[32]  

   [32] >

   The International Air Transport Association [33] advised that the DRC grants visa free of charge with 90 days validity on a reciprocal basis to the Rwanda and members of the East Africa Partner States (including Burundi). 

   [33] "Country information (visa section)". Timatic.International Air Transport Association (IATA) through Olympic Air. Retrieved 4 February 2019

3. In light of the available country information the Tribunal finds that travel arrangements between the CEPGL countries is to facilitate freedom of movement of their citizens between each of the countries but only permits a temporary stay of 90 days. That is travellers are regarded as visitors intending to stay on a short trip.

4. Therefore the Tribunal finds that the travel arrangement between the CEPGL member states does not confer any right to reside but merely a right to enter and stay on a temporary basis. As such the Tribunal finds that the applicants do not have effective protection in a third country under s.36 (3) of the Act.

The applicant’s protection claims

1. The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the matter should be affirmed.

2. The applicant’s written claims set out in the applicant statutory declaration 29 August 2014[34] attached to his application for review  and summarised in the delegates decision dated 22 November 2016[35] as follows:

   (a)  The applicant claims that he was forcibly taken by a rebel group, M23, in the DRC in 2012 and escaped their captivity after three days, before he was to commence military training. He was then interned by the armed forces of the Democratic Republic of the Congo (FARDC) in the DRC for over 12 months from 2012 to 2013. Whilst he was on house arrest, he fled to Rwanda [in] December 2013.

   (b)  The applicant claims that he stayed with his friend, [Mr A], in Kigali until June 2014, when he left [Country 2]. He claims that as the Rwanda government supports armed rebel groups in the DRC, including M23, and maintains a list of persons who deserted these groups, he would be viewed as an enemy of the state and would be imprisoned and killed by the Rwandan authorities due to his desertion from M23.       

The applicant’s evidence.

[34] ([File number]) f82-87

[35] ([File number]) f114-123.

1. The applicant’s evidence was that he was born on [date] in [Goma], DRC.  He claims that he is from the Rwandophone ethnic group and a member of the Tutsi Tribe. He states that he is a Protestant, Christian, that he is not married and has no children.

2. The applicant’s evidence is that he has one brother and that his parents were killed during the war in 1997 having been burnt to death. As Rwandophone’s the applicant and his family were considered to be aligned with Rwanda and as such hated in the DRC. The applicant’s evidence was that after the death of his parents a man named [name], from the Kasai Tribe, took the applicant and his brother into his house and looked after them. At the end of the war [this man] told the applicant and his brother that he did not have the resources to continue to look after them. As a result, they returned to their parents’ home in Goma home to live.[36]

   [36] Statutory Declaration by [the applicant] dated 29 August 2014; Department's file ([number]) f.87

3. The applicants evidence was that as his brother and the he were members of the Tutsi Tribe they were regularly discriminated against and taunted. His evidence was that they were called names and ostracised by the wider community making it difficult for them to subsist. He said that they were regularly forced to beg on the street in order to obtain food and supplies. The applicant and his brother did not have enough money for their education and as such they never finished school. The applicant’s evidence to the Tribunal was that he completed [grade] at school in [specified year]. The applicant said that it was difficult for them to make a living. However, his brother was provided some assistance to start a stall at the local market in Goma at which they worked hard to make a living.[37]

   [37] ibid.

4. The applicant said that [in] December 2012, member of the M-23 Rebel Group came to their house and captured the applicant and his brother. The applicant’s evidence was that he and his brother were separated and taken to different locations in different vehicles. He said that due to their race and background, he and his brother were perceived by the members of the group to be Rwandan and willing to assist their cause. The applicant says that he was taken to [a town] and held for three days. He was told that he would be taken to a camp and trained to be solider for M-23. The applicant’s evidence was that he was very scared as he did not want to help the group.[38]

   [38] ibid

5. While at the camp the applicant said that he made friends with a man form [another town] who helped him escape. The applicant’s evidence was that they escaped at night towards Goma. However, the applicant said that he did not want to return home as he ‘knew that the M-23 members would be able to finds him.’[39] As a result he went to stay with a friend for the Kasai Tribe in [a certain town]. After two days his friend told him that the authorities had eradicated the M23 from his rea and that he was able to return home. The applicant’s evidence was that he returned home on 6 December 2012.[40] 

   [39] Statutory Declaration by [the applicant] dated 29 August 2014; Department's file ([number]) f.86

   [40] Statutory Declaration by [the applicant] dated 29 August 2014; Department's file ([number]) f.85

6. The applicant’s evidence was that when he returned home members of the Armed Forces of the DRC (FARDC) broke in and forcibly removed him from his home. He said that he was taken by vehicle to a dark room and the following morning interrogated by Police Officers about his involvement with the M-23.[41] The applicant claims during the course of the integration he was beaten. As a result of fearing what might happen to him the applicant informed the police of the location of the camp he had been taken to by the M23. When the police arrived at the location it was empty. The FARDC thought that the applicant had lied and beat him further. The applicant says that as a result of the beating he lost consciousness and woke up in [prison].[42]  

   [41] ibid

   [42] ibid

7. The applicant’s evidence was that on [a date in] December 2012 he was taken to the Director of the prison and provided a pen and paper. In an attempt to capture the applicant’s brother he was told to write a letter to his brother advising him to return home or to call.  The applicant was then taken home by two soldiers and placed under house arrest. The soldiers surrounded the house and he was not allowed to leave his home. The applicant’s evidence was that in the event his brother contacted the applicant they would capture him and return him to prison.

8. The applicant’s evidence was that on [a date], it had become busy and noisy outside his house and he could not locate the soldiers. As a result, the applicant fled and ran toward the Rwandan border. He went to [a town] and then to a friends house, known as [Mr A], in Kigali. The applicant says that [Mr A] worked for [a government agency] and arranged a Rwanda Passport for the applicant to travel to Australia.[43]

   [43] Ibid

COUNTRY INFORMATION

1. In considering the applicants claim the Tribunal has considered the country information available in relation the Democratic Republic of the Congo. Relevantly the  United States State Department reports that:[44]

   [44]U.S State Department Bureau of Democracy, Human Rights and Labor Country Reports on Human Rights Practices for 2017 Democratic Republic of Congo,

   ‘Executive Summary[45]

   [45] Op Cit @p.1

   The Democratic Republic of the Congo (DRC) is a nominally centralized constitutional republic. Voters popularly elect the president and the lower house of parliament (National Assembly). Under the constitution the president’s second and final term in office expired in December 2016. The government, however, failed to organize elections in 2016 in accordance with constitutional deadlines and the president remained in office. In December 2016 the government and opposition parties agreed to a power-sharing arrangement that paved the way for elections in 2017, the release of political prisoners, and an end to politically motivated prosecutions. The government failed to implement the agreement as written, however, and elections had not occurred by year’s end. On November 5, the national electoral commission announced that elections would be held in December 2018. The country’s most recent presidential and National Assembly elections, which many local and international observers characterized as lacking in credibility and seriously flawed, were held in 2011. All national-level democratically elected officials, including the president and both houses of parliament, have overstayed their elected mandates.

   Civilian authorities did not always maintain control over the security forces.

   Armed conflict in the east and Kasai regions exacerbated an already precarious human rights situation.

   The most significant human rights issues included: unlawful killings; disappearances and abductions; torture and other cruel, inhuman, and degrading treatment and punishment, including sexual and gender-based violence (SGBV) and rape; life-threatening conditions in prisons and detention facilities; arbitrary arrests and prolonged detention; denial of fair public trial; arbitrary interference with privacy, family, and home; restrictions on freedoms of speech and the press, assembly, and association; abuse of internally displaced persons (IDPs); inability of citizens to change their government through democratic means; harassment of civil society, opposition, and religious leaders; corruption and a lack of transparency at all levels of government; violence and stigmatization against women, children, persons with disabilities, ethnic minorities, indigenous persons, lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, and persons with albinism, with little government action to investigate, prosecute, or hold perpetrators accountable; trafficking in persons, including forced labor, including by children; and violations of worker rights.

   Authorities often took no steps to investigate, prosecute, or punish officials who committed abuses, whether in the security forces or elsewhere in the government, and impunity for human rights abuses was a problem.

   Government state security forces (SSF), as well as rebel and militia groups (RMGs) continued to commit abuses, primarily in the east and the central Kasai region. These abuses included unlawful killings, disappearances, torture, destruction of government and private property, and SGBV. RMGs also recruited, abducted, and retained child soldiers and compelled forced labor. The government took military action against some RMGs but had limited ability to investigate abuses and bring the accused to trial.

   Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings[46]

   [46] Op Cit @ p.2

   There were numerous reports the government or its agents committed arbitrary or unlawful killings.

   State security forces (SSF) committed arbitrary or unlawful killings in operations against RMGs in the east and in the Kasai region (see section 1.g.). According to the UN Joint Office of Human Rights (UNJHRO), security forces were responsible for 1,176 extrajudicial killings during the year across the country. Many of these extrajudicial killings occurred in the Kasais, where the SSF fought Kamuina Nsapu and other antigovernment militias. In December, UNJHRO reported that at least 170 women were victims of extrajudicial killings nationwide from January to October……...

   On December 7, Human Rights Watch and the Congo Research Group published a report stating that at least 526 civilians were killed in North and South Kivu provinces from June to November. The reported stated that the Allied Democratic Forces (ADF), other RMGs, and government proxy RMGs were responsible for some of these killings.

   Disappearance[47]

   There were reports of disappearances attributable to the SSF during the year. Authorities often refused to acknowledge the detention of suspects and in some cases detained suspects in unofficial facilities, including on military bases. The whereabouts of some civil society activists and civilians arrested by the SSF remained unknown for long periods. For instance, a local NGO reported in July that dozens of individuals arrested during September and December protests in 2016 were still being held at Makala Central Prison…..’

   Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

   ‘The law criminalizes torture, but there were credible reports that the SSF continued to torture civilians, particularly detainees and prisoners. In July the DRC National Human Rights Commission (CNDH) stated, “Most people arrested by security forces on suspicion of belonging to [Kamuina Nsapu] claim they were victims of serious torture. Following this treatment, some lost their lives or became mentally ill.”………’

   The March 23 Movement (M23)

   The M23 rebellion was fighting in North Kivu, Democratic Republic of the Congo (DRC),that occurred between the March 23 Movement and government forces. The rebellion was part of continued fighting in the region after the formal end of the Second Congo War in 2003. It broke out in 2012 and continued into 2013, when a peace agreement was made among eleven African nations, and the M23 troops surrendered in Uganda.

   In April 2012, former National Congress for the Defence of the People (CNDP) soldiers mutinied against the DRC government and the peacekeeping contingent of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO). Mutineers formed a rebel group called the March 23 Movement (M23), also known as the Congolese Revolutionary Army. It was composed of former members of the rebel CNDP, led by Nkunda, and allegedly sponsored by the government of the neighbouring states of Rwanda and Uganda.

   On 20 November 2012, M23 rebels took control of Goma, a North Kivu provincial capital with a population of one million people.[48]  By the end of November that year, the conflict had forced more than 140,000 people to flee their homes, according to the U.N. refugee agency, in addition to the refugees already forced from their homes by previous rounds of fighting in the region.  After repelling an ill-organized government counterattack and making some further gains, M23 agreed to withdraw from Goma on their own and left the city in early December.

   On 24 February 2013, eleven African nations signed an agreement designed to bring peace to the region. In October 2013, Congo told the UN that the M23 movement was virtually finished after being pushed back to a small area near Rwanda. On 7 November 2013, following significant defeats to a UN-backed government offensive, M23 troops crossed into Uganda and surrendered.

   [47] Op Cit @ p.3

   [48] BBC NEWS Goma: M23 rebels capture DR Congo city; 20 November 2012

CONSIDERATION OF CLAIMS AND EVIDENCE

Applicants Relevant Convention Grounds

1. The applicant submits that his claims fall within the scope of the refugee Convention by reason of his race, as a Rwandophone, membership of a social group, specifically as a Tutsi Tribe member and by reason of his imputed political opinion.

2. As to the applicants membership of a social group it is necessary that he share a certain characteristics or elements which unites him with a particular group and enables them to be set apart from society at large. That is to say, not only must the applicant with his group exhibit some common element, it must unite them, making them a cognisable group within their society.[49]

   [49]   Applicant A v MIEA (1997) 190 CLR 225 per Dawson J at 241, McHugh J at 264-266 and Gummow J at 285.

3. In this case, the Tribunal accepts the applicant evidence and finds that he is a Rwandophone and a member of the Tutsi Tribe. As such the Tribunal accepts that as a member of the Tutsi Tribe he shares a common characteristic which can be differentiated from the community in general. As such, the Tribunal finds that the applicant is a member of a particular social group, namely a member of the Tutsi Tribe.  

Applicant’s well-founded fear.

1. In Chan v MIEA[50] the Court held that ‘well-founded fear’ involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase “well-founded fear of being persecuted...” contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[51]

   [50] (1989) 169 CLR 379 at 396.

   [51] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

1. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact. In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed by M23 and the FARDC.

2. To hold a ‘well found fear of persecution’ on an objective basis the applicant’s claims must be more than merely plausible or credible. In Chan v MIEA, Dawson J [52]stated:

   “Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’

   [52]  Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397

1. In MIEA v Guo, the Court stated that: [53]

   ‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’

   [53]  MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. In this case, the applicant claims that he will be persecuted due to his race in the DRC. The applicants claims is that he and his family have been subjected to ongoing harassment and discrimination since the war between the DRC and Rwanda and that he is treated with suspicion and subjected to ongoing harm. The applicant claims that ethnic tensions have always been very high in DRC. The Tribunal accepts the applicant’s evidence that the ethnic tension towards the Rwandophone race remains very high in the DRC. 

3. However, for the reason provided above the Tribunal has found that the applicant is a citizen of the Rwanda and that Rwanda is his country of reference for the purposes of assessing protection obligations under the Refugee Convention. Accordingly, the applicant will not be subjected to the harassment and discrimination in Rwanda as claimed by the applicant in the event he was returned to DRC.  On the applicants own evidence he lived in Rwanda without any fear of persecution due to his Rwandophone race.  As such, the Tribunal finds that there is no real chance of the applicant suffering serious harm on his return to Rwanda by reason of his Rwandophone race and as such does not have a ‘well-founded’ of persecution in the event that he return to the Rwanda.

4. In addition the applicant claims to fear persecution by reason of his membership of a social group, namely as a Tutsi Tribe member.  The applicant claims that as a result of his tribal affiliation he was subjected to ongoing discrimination, persecution and harassment. Accordingly he claims that he lived in fear and found it difficult to subsist in the DRC, as a result he felt compelled to flee the country. However, the evidence before the Tribunal suggests that the applicant was living and working in Rwanda before coming to Australia. The Department’s letter to the applicant dated 12 June 2014 confirms that the applicant was employed as the [Position 1] with the [Agency 1]. The letter notes that as evidence of his employment, the applicant provided the department a copy of his employment contract and three payslips showing that he earned, ‘a good salary’ of [amount] per month.[54]

   [54]  Letter from the Australian Government, Department of Immigration and Border Protection to the applicant dated 12 June 2014; Department file [number] f101

5. In addition, as referred to above the applicant’s passport on the department file shows that, prior to arriving in Australia the applicant had also travelled to [Country 1] and [Country 2] on his Rwandan passport in June 2014.  In addition, the departments fingerprint match report dated [in] September 2014[55] indicates that the applicant had applied for a visa to travel to [Country 3] claiming to be a Rwandan citizen, [in] May 2012 in Kigali, Rwanda. On each occasion the applicant claimed to be and was accepted as a Rwandan citizen.

   [55] Op Cit f101-103

6. Accordingly, while the Tribunal accepts that the applicant may face discrimination as a Tutsi Tribe member in DRC, it has found that Rwanda is the applicant’s country of reference for the purposes of assessing protection obligations under the Refugee Convention.  Accordingly, while the Tribunal finds that there is a real chance the applicant will be harassed and discriminated against in DRC, there is no evidence that he will suffer such treatment in Rwanda. Given that the Tribunal has found that Rwanda is the applicant’s country of reference, it finds that there is no real chance of the applicant will suffer serious harm on his return to Rwanda by reason of being a member of the Tutsi Tribe and as such does not have a ‘well-founded’ of persecution in the event that he returns to the Rwanda.

   Persecution due to imputed political opinion- M23

7. The applicant claim to fear harm in the DRC by reason of his imputed political opinion. He states that he fears harm for M-23 Rebel Group from whom he claim to have escaped. The applicant claims that while the group has been forced out of the DRC, many members of M-23 remain in the country and have joined other militia who operate both in his home area and throughout the country. The applicant claims that he is considered a traitor and would be subjected to harm for not previously supporting their cause. It is also submitted that may militias operate in the applicant home area in DRC and that he would be at risk of recruitment as a young able body man.

8. However, the country information sates that the M23 agreed to withdraw from Goma and left the city in early December 2012. Further, it states that in October 2013 the DRC told the UN that the M-23 movement was virtually finished after being pushed back to a small area near Rwanda and that on 7 November 2013, M23 troops crossed into Uganda and surrendered.

9. The Tribunal accepts that the DRC continues to be subjected to militia attacks. The country information reports that the Allied Democratic Forces (ADF), an Islamist group based in Uganda but active in eastern DRC, Mai-Mai militia comprising a number of armed groups that originally formed to resist Rwandan invasions in the 1990s continue to clash with Congolese troops in the city of Beni in recent weeks.[56]

   [56] The Guardian ‘Wave of rebel attacks leads to surge in DRC Ebola cases’ Jason Burke , Africa correspondent 25 October 2018,Last modified on Tue 6 Nov 2018, >

   From the available country information the attacks by rebel group appears to be opportunistic and random. It is reports that rebels have attacked medical units assisting in the Ebola crisis, while also reporting that rebels have also attacked DRC army positions and abducted a dozen children aged between five and 10. However, recently it has been reported that a notorious militia chief was killed in DRC along with six of his men in a military operation in volatile northeastern Ituri province. The operation took place as the country prepares to swear in Felix Tshisekedi as its new president following a disputed election that will see Joseph Kabila step down after 18 years in power.[57]

   [57] Daily Nation, ‘Top militia chief killed in eastern DR Congo: army’ 22 January 2019

10. As such given the apparent chaos of militia action in DRC and the passage of time, it’s hard to believe that the M-23 or any other militia groups would remember the applicant or be interested in his presence in the country. Further, the applicant had only limits contact with the M-23 members. As such it is highly unlikely that he wanted or that he would be recognized by former members of the group in the event that he returns to DRC.

11. Nevertheless, given the Tribunals finding that Rwanda is the applicants country of reference for the purposes of assessing protection obligations under the Refugee Convention, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he is returned to Rwanda by reason of his imputed political opinion in the DRC as a result of M-23 members considering him to be a traitor.

    Persecution due to imputed political opinion- Armed forces of DRC

12. The applicant claims that the Armed Forces of the Democratic Republic (FRADC) believe that the applicant supported the rebels in the past and want to punish him for his perceived support.  The applicant claims that the night he returned home after he had escaped from the M-23 rebels the FRADC came to his house, broke in and placed the applicant in a vehicle and a dark room. He said that the following morning he was taken to a police station and interrogated about his involvement in the M-23. He says that as a result his interrogation and beat he had received he informed the police that he had been abducted by the M-23 and agreed to take them back to the location of the M23 camp. However, the M23 had moved camp. As a result the applicant was accused of lying by the FRADC and beaten and thrown into [prison].

13. The applicant claims that on or about [a date in] December 2013 the applicant was taken to the Director of the prison and instructed to write to his brother asking him to return home so that he could be arrested by the FRADC. The applicant was then placed under house arrest. The applicant claims that under cover of [local events] he was able to escape upon which he fled to the Rwandan border.

14. The applicant claims that in the event that he returns to DRC there is a real chance that he will be seriously harmed by reason of the fact that he escaped from the FRADC while under house arrest.  The applicant submits that in the event he returns to DRC he will be punished for supporting the rebels. In addition he states that as a result of his anti-government profile would be enhanced given that he has fled the country and sought asylum.

15. The country information confirms that many former M-23 fighters and alleged collaborators were detained by DRC military and intelligence officers, often incommunicado, in harsh conditions and without being brought before a court.[58] However, Tribunal notes that the applicant’s involvement with M-23 was brief and involuntary. His evidence was that he was detained by the FRADC and placed in prison without a court hearing. The applicant’s evidence was that he was not involved in the M-23 and that the FRADC had mistakenly believed him to be aligned with the M-23. Therefore, his profile appears to have been limited to a few members of the FRADC rather than with the government more generally as claimed. The country information makes it clear that the DRC authorities are not interested in people involved in ‘low level’ political activities.[59] As such the Tribunal does not accept the applicants evidence that he has an anti-government profile in the DRC and that it would be enhanced as a result of him leaving the country and seeking asylum.

    [58] Human Rights Watch, World Report 2014: Democratic Republic of Congo-Events of 2013,

    [59] Canada: Immigration and Refugee Board of Canada, Democratic Republic of Congo: Situation of people returning to the country after they either spent time abroad, claimed refugee status, or were seeking asylum (2015-July 2017), 10 July 2017, COD105818.FE, available at: 13 February 2019]

16. In any event Tribunals has found that Rwanda is the applicant’s country of reference for the purposes of assessing protection obligations under the Refugee Convention. There is no evidence that the applicant will be harmed in Rwanda as a result of his involvement with the FRADC. As a result, the Tribunal finds that there is no real chance that the applicant will be seriously harmed in the event that he is returned to Rwanda by reason of his imputed political opinion in the DRC as a result of the FRADC believing that he supported the rebels in the past. 

    Applicants fear of harm upon return to Rwanda due to imputed political opinion

17. Despite maintaining that he does not have a legal right to reside in Rwanda, applicant claims that if he is returned Rwanda he would be at risk of harm due to his imputed political opinion. He states that the Rwanda Government backed the rebel groups who operate from the DRC. He says that the Rwanda Government regularly monitor the situation in the DRC and therefore likely to be aware of the applicants past actions. That is, the fact that he had refused to assist the rebels and escaped for them would ensure that he is viewed by the Rwanda Government to be non-supportive of them. The applicant submits that the Rwanda Government is known for subjecting individuals to support their plight to serious harm. He says that he previously kept a low profile to avoid harm. As such he says that he cannot live freely in Rwanda and that he will be subjected to serious harm.

18. However, the country information states that the M-23 agreed to withdraw from Goma and left the city in early December 2012 and on 7 November 2013 the M23 troops crossed into Uganda and surrendered. In circumstances in which the M-23 has surrendered the Tribunal considers it unlikely that the Rwanda Government would continue to monitor its member’s activities. Nevertheless, given the fact that the applicant’s contact with the M-23 was brief and involuntary, the Tribunal does not accept that the Rwanda Government would have become aware of the applicant or his past actions.  The Applicant was employed in Rwanda as [Position 1] with [Agency 1]. This is a relatively high profile position that requires the applicant to laisse and work with various members of the community. Had the applicant been of interest to the Rwandan Government he would have been easy enough to find. In addition the applicant has applied for a visa to travel to [Country 3] in 2012 and travelled to [Country 1] and [Country 2] on his Rwandan passport in June 2014. On each occasion the applicant claimed to be, and was accepted, as a Rwandan citizen. The Tribunal would have expected that in the event that he was of interest to the Rwandan authorities he would have been identified each time he used his Rwandan passport.  As such the Tribunal does not accept the applicant’s evidence that he was of interest to the Rwandan Government as a result of his past actions.

19. The applicant also submits that in the event he is returned to Rwanda he will be held in prison subject to the Authorities conducting a check by reason that he has obtained his passport illegally. However, as referred to above the applicant has used his passport on previous occasions without incident. There is no reason to believe that he would be detained upon his return to Rwanda as a result of his Rwandan passport. As such the Tribunal does not accept the applicant’s evidence that he will be detained upon his return to Rwanda.

20. Accordingly for the reason detailed above the Tribunal finds that the there is no real risk that the applicant will suffer serious harm upon his return to Rwanda by reason of his imputed political opinion as claimed.

21. Therefore having considered Sections 91R and 91S of the Act, the Tribunal finds that there is not a real chance the applicant will suffer serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.

22. Accordingly, in all the circumstances the Tribunal finds that the applicant does not have well-founded fear of persecution based on his claims of having been detained and escaping from the M-23 Rebels and FARDC and the Rwandan Governments support of the rebel group such as the M-23. As such, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it 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 the applicant will suffer significant harm.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that he will suffer significant harm in the event he is returned to DRC However, the Tribunal, for reasons set out above, has found that Rwanda is the applicant’s country of reference and as such he will not face a real chance of serious harm in the event he is returned to Rwanda.

3. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[60] It therefore follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone in Rwanda as a necessary and foreseeable consequence of the applicant being removed from Australia to Rwanda.

   [60] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

CONCLUSIONS

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person to whom Australia does not have 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).

2. Having concluded that the applicant does meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa) and is satisfied that the applicant is a person in respect of whom Australia does not have protection obligations under s.36(2)(aa).

3. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Member