1622047 (Refugee)

[2018] AATA 5802

1622047 (Refugee) [2018] AATA 5802 (14 December 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622047

COUNTRY OF REFERENCE:                  Congo, Democratic Republic of

MEMBER:Jason Pennell

DATE OF DECISION:  14 December 2018

DATE CORRIGENDUM

SIGNED:17 May 2019

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘The applicant asserts that due to his work commitment, her husband departed Australia for the DRC on 2 August 2014, leaving behind their applicant, who was heavily pregnant at the time, and their three children in Australia. It is alleged that the applicant’s husband then became contactable.’ at paragraph 47 should be replaced with ‘The applicant asserts that due to his work commitment, her husband departed Australia for the DRC on 2 August 2014, leaving behind the applicant, who was heavily pregnant at the time, and their three children in Australia. It is alleged that the applicant’s husband then became uncontactable’.

The words ‘In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed by the Taliban in the event he is returned to Pakistan’ at paragraph 60 should be replaced with ‘In this case based on the evidence of the applicant the Tribunal accepts that the applicant has a subjective fear of being harmed in the event she is returned to Congo’.

The words ‘Accordingly, the Tribunal finds that there is not a real chance the applicant will be seriously harmed by reason of his mental condition as a result of his return to Pakistan’ at paragraph 70 should be replaced with ‘Accordingly, the Tribunal finds that there is not a real chance the applicant will be seriously harmed by reason of her mental condition as a result of her return to Congo’.

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1622047

COUNTRY OF REFERENCE:                  Congo, Democratic Republic of

MEMBER:Jason Pennell

DATE:14 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 14 December 2018 at 3.59pm

CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – member of a social group – woman working with a Congo NGO – assisted victims of abuse – imputed political opinion – awareness of women attacked by officials – fear of harm – death treats – rape victim – physical and emotional scars – disappearance of family members – well-founded fear of persecution – right to enter and stay only on a temporary basis in a third country – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K-LA, 36, 65, 91R, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
Chan v MIEA(1989) 169 CLR 379
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 12 December 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 22 August 2014. The delegate refused to grant the visa on the basis that she was not satisfied that the applicants were people to whom Australia has protection obligations as outlined in s. 36(a) or (aa) of the Migration Act 1958 (the Act) and are not members of the same family unit as a non- citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the application pursuant to s.36(2)(b) and (c) of the Act.

3.The applicants appeared before the Tribunal on 3 August 2018 to give evidence and present arguments. At the hearing [the applicant] gave evidence and presented submission on behalf of all the applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.

4.[The applicant’s four children] have no protection claims of his own and will be considered as a members of the same family unit under s.36 (2)(b) of the Migrations Act 1958 (‘the Act’)

5.The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6.For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

RELEVANT LAW

7.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

8.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).

9.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 the applicant and her husband applied for a [temporary visa] to attend [an event] in [Australian city 1] and included the second, third and fourth named applicants in that application. A one month visa was granted on 10 July 2014 and they arrived in Australia on [date] July 2014. The applicant’s husband departed Australia for the Democratic Republic of the Congo (‘DRC’) on [date] August 2014.  On 22 August 2014 the applicant lodged an application for a protection visa (subclass 866) and included the second, third and fourth named applicants in the application. They now each hold a Bridging Visa (subclass 010) granted in association with the protection visa application. On 18 September 2014 the fifth named applicant was born in [Australian city 1].

Country of Reference

[6] Opcit @ p.2

1. The Department's file ([file number deleted]) (‘the Department file’) contains a photocopy of the applicant’s passport together with the second, third and fourth named applicants passports (four passport numbers deleted]) issued by the DRC[7] together with a copy of the fifth applicant’s Birth Certificate registration [number deleted] date 24 November 2014.[8] Based on the passports provided by the applicants the Tribunal is satisfied that they are citizens of the DRC and as such the DRC is the applicant’s country of reference for the purposes of assessing protection obligations under the refugee Convention. The Tribunal is also satisfied that the DRC 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.

[7] Departmental file ([file number deleted]) @ f30-f101.

[8] Op Cit @ f113.

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.[9]  In WAGH v MIMA[10] 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.

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

   [10] 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 din 1980 and amended in 2011.[11]  

   [11] >

   The Rwanda Directorate General of Immigration and Emigration website[12] notes that on 8 November 2017 the Rwanda Cabinet approved the establishment of a new visa regime for the Republic of Rwanda and confirmed that it will continue to grant visa free of charge with 90 days validity on a reciprocal basis to the Democratic Republic of the Congo and members of the East Africa Partner States (including Burundi).  

   [12] >

   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.

3. Therefore the Tribunal finds that the travel arrangement between the CEPGL member states confers a right to enter and stay only on a temporary basis only and not on a permanent 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 remitted for reconsideration.

2. The applicant’s written claims set out in the applicant statutory declaration dated 26 August 2016[13] and in her answers to questions 44 to 49 in her application for a protection visa and are provided on the Department File from folios 12 to 14. The applicant’s written claims in her protection visa application are as follows:

   [13] The Department file f145-146.

   Why did you leave that country?

   ‘Because I fear persecution. I work in an NGO and in the exercise of my duties; I intervene in violence and ill-treatment of women. On a regular basis, I deal with women who have been raped or abused, often by men who are political member or part of the military. From 2011, I began to notice a change in behavior for the political-military authority towards myself and my family, they became very hostile and began harassing us. Harassment included direct threats to our life, anonymous phone calls and a threat to poison me. This made me feel very frightened for my life. One night, 8 unidentified armed men turned up to my house in the middle of the night. My husband was not at home as he was in [Country 1 City 1]. They physically assaulted me, hurt my left hand with a machete and raped me. They raped my sister and kidnapped my brother. My mother was so stressed and traumatised by this event, until her death in her sleep on 12 July 2013.’

   Did you experience harm in that country?

   ‘Yes. I underwent attacks which left me with unforgettable scares. On [date] April 2013, 8 unidentified men came to my house. My husband was on a UN mission in [Country 1 City 1] and was not at home at the time. These men came in and struck me and my sister and my brother and traumatized my children. The raped me and when I tried to resist they stuck me with a machete to my left hand. This has left me with permanent mental scars and physical ones too, on my left hand. There continues to be death threats and harassing phone calls made to me and my family.’

   What do you think will happen to you if you return to that country?

   ‘I fear on my return that the same event will occur again and that I may be illegally arrested and detained leaving my 4 children alone. My children are [age] years [age] years, [age] years and [age] years and my dead sister child is [age] years and leaving them without any support in a country without a social justice system worries me greatly. Their father remains untraceable since 2 August 2014.’

   Who do you think may harm /mistreat you if you go back?

   ‘There are no names that I am able to give, because the perpetrators of the violent attack are among the political-military authority and secret services. The only clue that we have is the when we went to the local police and told them about the event they did not help us but told us that if we don’t stop we will be killed. We suspect that the local police is involved because the head of the local police I nicked named ‘Spirit of the Dead.’

   Why do think this will happen to you if you go back??

   ‘Due to the repressive system in the D.R Congo that is not changing, and those people that work for non-government organizations are at risk, because they work with government agencies abroad and with the UN and threaten change. I am an active employee of a non-governmental organization ([Organisation 1]) and deal with many agencies abroad and the UN. These non-governmental organizations are perceived by the authorities as rebellious and threaten change which they are not happy with. News has shown that members and employees of these types of non-governmental organizations and defendants of human rights have been arrested by the secret service and taken to unknown destinations. The political and social climate is so bad these days that with my pregnancy state I have no strength to fight. What I would like is the protection for me and my family.’

   Do you think the authorities of that country can and will protect you if you go back?

   ‘No. Because in my country the authorities do not protect us. Those who have the right to protections are those that work for the governing power and share the same opinions. Those who have relationships with those in power and their family are protected. Evidence of this is that during my numerous attacks nobody protected me and on the contrary I went to  the police and instead of receiving protection, I received death threats telling me to close my mouth, to keep it shut otherwise that will be the end for me and my family.’

COUNTRY INFORMATION

1. In considering the applicants claim the Tribunal has considered the country information available in relation the Democratic Republic of the Congo by the United States State Department.[14] Relevantly, it states as follows:

‘Executive Summary[15]

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

[15] 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[16]

[16] 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[17]

[17] Op Cit @ p.3

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.”………’

Freedom of Association[18]

[18] Op Cit @ p.18

The constitution provides for freedom of association, and the government generally respected this right. Civil society organizations and NGOs are required to register with the government and may receive funds only through donations; they cannot generate any revenue, even if it is not at a profit. The registration process is burdensome and very slow. Some groups, particularly within the LGBTI community, reported the government had denied their registration requests.

During an interactive dialogue with civil society in Kinshasa in March 2016, the minister of justice and human rights stated that only 63 of more than 21,000 NGOs in the country were formally registered. Many NGOs reported that, even when carefully following the registration process, it often took years to receive legal certification. Many interpreted registration difficulties as intentional government obstacles for impeding NGO activity. On October 17, Rural Development Minister Justin Bitakwira, acting as the human rights minister, called for the dissolution of local NGOs that had opposed the government’s candidacy to the UN Human Rights Council.

Women[19]

Rape and Domestic Violence: The law on sexual violence criminalizes rape, but the offense was not always reported by victims and the law was not always enforced. Rape was common. The legal definition of rape does not include spousal rape. It also prohibits extrajudicial settlements (for example, a customary fine paid by the perpetrator to the family of the victim) and forced marriage, allows victims of sexual violence to waive appearance in court, and permits closed hearings to protect confidentiality. The minimum penalty prescribed for rape is a prison sentence of five years, and courts regularly imposed such a sentence in rape convictions.

According to media, members of the FARDC raped as many as 25 women in Makobola, 14 miles south of Uvira, in late September and mid-October after the withdrawal of a Mai Mai group that had been operating in the area.

In December, UNJHRO reported that at least 170 women were victims of extrajudicial killings, at least 420 women were victims of SGBV, and at least 528 women were victims of arbitrary arrest during the year. UNJHRO stated that perpetrators were primarily police for arbitrary arrest and the FARDC with regard to extrajudicial killings and SGBV. UNJHRO stated that RMGs, including the FPRI and Twa militias, also targeted women during the year. Implementation, including promulgation of the text of the amended family code adopted in June 2016, had not begun by year’s end.

The SSF, RMGs, and civilians perpetrated widespread sexual violence (see section 1.g.). During the year the United Nations documented 267 adult victims and 171 child victims, including two boys, of sexual violence in conflict. Crimes of sexual violence were sometimes committed as a tactic of war to punish civilians for having perceived allegiances to rival parties or groups. The crimes occurred largely in the conflict zones in North Kivu Province and in the Kasai region, but also throughout the country. The 2013-14 Demographic and Health Survey (DHS) found that more than one in four women nationwide (27 percent) had experienced sexual violence at some point in their lives, up from 22 percent in 2007.

Some prosecutions occurred for rape and other types of sexual violence. In June 2016 at least 57 persons, including a provincial member of parliament, were arrested in connection with a local militia allegedly responsible for a surge in sexual violence against children in Kavumu, South Kivu Province. Many individuals were subsequently released, although 14 persons, including the parliamentarian, were ultimately charged in military court with crimes against humanity, rape, murder, assault, and participation in an insurrectional movement. On December 13, a provincial military court convicted parliamentarian Frederic Batumike and 10 others associated with Batumike’s RMG to life in prison for murder and crimes against humanity for the rape of 37 girls ranging in age from 18 months to 12 years.

Most survivors of rape did not pursue formal legal action due to insufficient resources, lack of confidence in the justice system, fear of subjecting themselves to humiliation and/or reprisal, or family pressure.

The law does not provide any specific penalty for domestic violence despite its prevalence. Although the law considers assault a crime, police rarely intervened in perceived domestic disputes. There were no reports of judicial authorities taking action in cases of domestic or spousal abuse.

[19] Op Cit @ p.26

CONSIDERATION OF CLAIMS AND EVIDENCE

Applicant’s Evidence

1. The applicant was born on [date]  [in the DRC]. She claims that ethnicity is Mumianga and that she is a Christian. She is married and has [four children] who are with her in Australia, being the second, third, fourth and fifth applicants. He son [name deleted] was born in Australia. The applicant also has one son [Child 1] and a neice, [Child 2] who did not travel with her to Australia. [Child 2] is the daughter of the applicant’s sister who died when [Child 2] was three years old. The applicant is [Child 2] guardian. Both [Child 1] and [Child 2] currently live with the applicant’s husband in [Country 2].

2. In or about 2008 the applicant commenced working for [Organisation 1]. Prior to 2008 she worked [in other roles].  

3. The applicant’s role at [Organisation 1 in a social work role]. He role was assist (including training and counselling services) women and children who were victims of domestic violence, in particular those suffering from AIDS and victims of sexual assault. The applicants husband [Mr A] also worked for [Organisation 1 in another role].

4. The applicant claims that many of the women she assisted had been raped and abused by politicians and high ranking officials in DRC. [20]  She claims that when proving counselling services to these women they would tell her with information about the issues they faced including the men who had harmed them. She says that she became aware of many instances where women had been harmed by prominent male members of the community in order to intimidate and coerce them.

   [20] Applicants Statutory Declaration 25 August 2016 @ paragraph 7

5. The applicant claims that from 2011 she began to receive threats that she should stop assisting [Organisation 1]. Many of her colleagues also received such threats. Despite the threats the applicant continued her work assisting those vulnerable members of her community.[21] It was her belief that if she did not assist the vulnerable members in her community change would never come.

   [21] Op Cit @ paragraph 8

6. On or about [date] April 2013 the applicant was at home with her sister and brother, [name deleted], when approximately eight men entered her home. At the time the applicant’s husband was away in [Country 1 City 1] as part of his work for the [Organisation 1]. The applicant states that one man was wearing a police uniform and the others were dressed in civilian clothes. They forced them to lay on the floor and said that they were looking for her husband. They then forced the applicant and her sister into the bedroom. Four of the men went into the bedroom and raped both the applicant and her sister. The applicant says that when she tried to resist she was struck in the arm with a machete.

7. The applicant said that her brother was very angry about the attacks and tried to resist the men. She said that as a result he was badly beaten and taken away by the authorities. The applicant says that despite her family having made enquiries about his whereabouts he has never been seen again.

8. The applicant was accompanied by her family to make a report of the attack to the police. She says that when she told them one of the men wore a police uniform she was asked to change her testimony. As a result she became enraged and stormed out of the police station. The applicant says that after the assault she attended a local dispensary to receive medical treatment. She did not go to the hospital as she says she was ashamed and scared to do so.

9. The applicant evidence was that after the incident other members of the NGO suffered serious issues from the authorities. The applicant says that she continued to receive threats by phone and sms threatening to kill her unless she stopped her work with the [Organisation 1]. However, she says that she became more passionate about her work. He husband and her travelled to [Country 3] and [Country 1 City 1] representing the [Organisation 1] at UN Conferences in May and July 2013. They also came to Australia to [a] conference in July 2014.

10. On 2 August 2014 the applicant husband departed Australia to return to DRC due to work commitments. The applicant stayed in [Australian city 1]. The applicant’s husband became uncountable and the applicant was only able to make contact with him through [an International aid organisation] in June 2016.

11. The Tribunal has received a Statement for the applicant’s husband dated 16 August 2018[22] in which he states that upon his arrival at [Airport 1] from Australia in August 2014 he was detained and taken to prison where he was held until December 2015. During the time that he was held he says that he was moved between seven different prisons. He says that while he was imprisoned he was tortured and interrogated about his work with the [Organisation 1], his affiliation with [Country 3]. and the United Nations. The applicant husband travelled to [City 1Country 2] with [Child 1] and [Child 2] after his release from prison. 

Applicant’s claim a refugee

Credibility.

[22] Statement of [Mr A]  dated 16 August 2018.

1. When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[23]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[24]

   [23] s.5AAA Migration Act 1958.

   [24]  MIEA v Guo (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[25] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [25]   Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482

4. If the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt.[26] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

   [26]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

5. In this case, the applicant claims that if she were to return to the DRC now or in the foreseeable future, she would be arrested, detained and tortured by the authorities due to her profile as an NGO worker. She claims that her prolonged stay in Australia would elevate her to existing profile as she would be perceived to have relayed sensitive information about the DRC authorities to the international community in Australia.

The Applicant’s Husband.

1. The applicant asserts that due to his work commitment, her husband departed Australia for the DRC on [date] August 2014, leaving behind their applicant, who was heavily pregnant at the time, and their three children in Australia. It is alleged that the applicant’s husband then became contactable. As a result the applicant decided not to return to DRC and sought asylum in Australia. The statement[27] provided by the applicant’s husband explains that he was detained upon his return to the DRC and placed in prison until December 2015. 

   [27] Statement of [Mr A] dated 16 August 2018.

2. The applicant’s evidence to the Tribunal was that she had made attempts to contact directly through family and friends in DRC. In addition, she says that she arranged for her brother to contact [Organisation 1] to ask about her husband’s whereabouts but he was not successful in locating him. In February 2016 the applicant placed a tracing enquiry with [an International aid organisation] and in June 2016 she was informed by them that her husband had travelled to [City 1 Country 2] with [Child 1] and [Child 2] after his release from prison. The applicant’s evidence that they now communicate regularly via skype.

1. The Tribunal asked the applicant about the fact that her husband was listed as a participant at [an International General Meeting] in [Country 4] on 30 April 2015 in his capacity of [as a representative of Organisation 1].[28] The applicant denied that her husband had attended the conference due to the fact that he was in detention at the time of the conference. The Applicants husband in his statement also denies that he attended the conference. In fact he says in his statement that he has never been to the Asian Continent.[29]  The Tribunal notes that the applicant previous passport expired in March 2015 indicating that he did not hold a passport at the time of the conference.[30]

   [28]  The Department File f137-141.

   [29] Statement of  [Mr A] dated 16 August 2018 paragraph 10

   [30] Applicants submission dated 27 July 218 @ p.6

2. A search of the husbands name on the internet showed that he had been listed as attending a [conference] in [Country 5] in March 2018.[31] Both the applicant and her husband denied that he attend a conference in [Country 5]. Given that the information on the website was unrelated to the business of the [Organisation 1] and the list of attendees appeared at best dubious and in any absence of evidence that he in fact did attend the conference, the Tribunal accepts that the applicants evidence that her husband did not attend the conferences in [Country 4] and [Country 5].   

   [31] >

   The department received a copy of the husband passport on [date] 2016 via email. The delegate noted that the issuing date of the passport was [date]2015. It was asserted by the applicant and her husband[32] that an acquaintance of the husband arranged his passport and had it backdated to avoid detection upon his departure for the DRC.[33]

   [32] Statement of  [Mr A]  dated 16 August 2018 paragraph 8

   [33] Ibid; Delegates decision dated 12 December 2016 @ p.8

3. The country information suggests that obtain a passport with a backdated issuing date is not too difficult in the DRC. According to Documents d'identité, a report from a May 2004 joint mission to the DRC by the Commissioner General for Refugees and Stateless Persons (Commissariat général aux réfugiés et apatrides, CGRA), the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugiés et apatrides, OFPRA) and the Swiss Federal Office for Refugees (Office federal des réfugiés, ODR), Congolese passports are generally obtained by corrupt means with the official procedure through the ministry of foreign affairs being ‘often circumvented’ [34]The country information states that four photos and approximately $150 is enough to obtain a passport under the name of your choice from the ministry. More money can get you more stamps. An established false passport will help you obtain an authentic passport (the same is true for diplomatic passports). An authentic passport is not necessarily an accurate representation of reality, in that a person may obtain an authentic document and then switch the photograph or change the name.[35]

   [34]   UNHCR, refworld,  Last Updated: Tuesday, 11 December 2018, 09:02 GMT Ibid

As a result, based on the country information, the Tribunal accepts that it would be possible for the applicant’s husband to have obtained a passport with a backdated issuing date through an acquaintance within the ministry as claimed.

Finally, the delegate referred to the fact that the applicant’s husband passport contained a [Country 2] visa dated [December] 2018. The delegate did not accept that after he was released from detention in December 2015 he could arranged a passport and obtained a [Country 2] visa prior by 18 December 2015. Despite the applicants evidence that her husband was keeping a lower profile before leaving DRC, the delegate found it incongruous that he did resume contact with his wife and family prior to leaving for [Country 2] in April 2016. The Tribunal accepts that, given the applicant’s husband was not freed from detention until December 2015; it would be difficult for him to obtain a passport and  [Country 2] visa prior to [date] December 2015. It also accepts that it does appear incongruous he did not resume contact with his wife earlier. However, the Tribunal is not able to make any finding in relation to these matters. Nevertheless, it does observe that by not contacting his wife or leaving DRC earlier the applicant’s husband appears to only added to the applicant’s and their children’s difficulties as asylum seekers in Australia.

In any event, while there does appear to be some doubt about the applicant’s husband’s evidence, particularly in relation to his passport, it is not relevant to her claim for a protection visa.

Applicants Relevant Convention Grounds

1. The applicant submits that her claims fall within the scope of the refugee Convention by reason of her membership of a social group specifically women from the DRC and employees of NGO’s from the DRC and by reason of her imputed political opinion.

2. As to the applicants membership of a social group it is necessary that she share a certain characteristic or element which unites her with a particular group which enables them to be set apart from society at large. That is to say, not only must the applicant with her group exhibit some common element, it must unite them, making them a cognisable group within their society.[36]

   [36]    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 applicant’s evidence is that she does not fear being persecuted in the DRC by reason of being a women, but rather because she is an employee of a NGO, namely [Organisation 1]. The Tribunal accepts that applicant’s submission that as an employee of an NGO, she 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 that is being an employee of an NGO in DRC, namely the [Organisation 1].  

Applicant’s well-founded fear.

1. In Chan v MIEA[37] 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 for a Convention stipulated reason. Justice Dawson stated in Chan’s case:

   The phrase “well-founded fear of being persecuted...” contains both a subjective  and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.[38]

   [37] (1989) 169 CLR 379 at 396.

   [38] (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.

2. 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 the Taliban in the event he is returned to Pakistan.

3. 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 [39]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.’

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

1. In MIEA v Guo, the Court stated that: [40]

   ‘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.’

   [40]   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 as a result of her work with [Organisation 1] she became aware of many instances where women had been harmed by prominent male members of the community in order to intimidate and coerce them.  She claims that in or about 2011 she began to receive threatening phone call demanding that she stop assisting [Organisation 1]. Nevertheless she continued her work assisting those vulnerable members of her community in a belief that it would make a real difference to her community. She says that on or about [date] April 2013 she and her sister were attacked and raped by men from the authorities. During the course of the attack she was struck by a machete. Her evidence was that her brother was taken and has not been seen since. The applicant’s description of the incident during the course of the hearing was detailed and compelling. She described in detail the events that occurred and the circumstances in which her brother was taken from her home.

3. The applicant’s evidence was that after the incident she attended a local dispensary to receive medical treatment. She did not go to the hospital as she says she was ashamed and scared due to the fact that it was authorities who were responsible for the attack on her and her brother abduction.

4. The applicant provided a report for [Organisation 1] dated [July] 2018.[41] The report concludes that the applicant presented with sadness and distresses associated with recalling the traumatic events, intrusive memories, sleep disruption, frequent headaches and physical tension. The report states that the applicant manages well in her daily life but she experiences significant grief as a result of the separation of her family and as a result of past events, inducing the disappearance of her brother. The applicant relies on her faith in dealing with her circumstances and has suffered stress as a result of the determination of her protection visa application.

   [41] [Source deleted].

5. In addition, the country information indicates that gender based violence is prolific in the DRC and that individual who are workers for NGO’s are subjected to serious harm. The country information states that the SSF continue to unlawfully kill, beat, intimidate and arbitrarily arrest and detain domestic violence advocates and domestic NGO workers, particularly when the NGO’s reported on or supported victims of abuse by the SSF or reported on the illegal exploitation of natural resources in the east of the DRC. In this case the applicant has assisted victims of sexual assault and liaised with international community, particularly through her attendance at international conferences.[42] Accordingly the Tribunal finds that the applicant has a well-founded fear of being persecuted as a result of being a worker for an NGO (and in particular a female worker for an NGO) in the event that she returns to DRC.

   [42]  United States Department of State, Country Reports on Human Rights Practices 2017, democratic republic of Congo, 20 April 2018 >

   Therefore, based on the applicants own evidence and the country information, the Tribunal finds that that the applicant was raped and assaulted as claimed. Accordingly, it finds that there is a real chance the applicant will be seriously harmed and as such does have a ‘well-founded’ of persecution in the event that she returns to the DRC. 

Applicant imputed political opinion

1. The applicant claims that as part of her role with [Organisation 1] she became aware of many instances where women had been harmed by prominent male members of the community.   He evidence was that in or about 2011 she began receiving threats demanding that she stop assisting the plight of women in her community. She says that many other employee in the foundation also received threats. Nevertheless, she continued to work with [Organisation 1] in the belief that she would make a difference to her community.

2. The country information states that authorities sometimes detain journalists, activists and politicians when they publically criticize the government.[43] In addition, registration of NGO’s by the authorities is often a burdensome process designed to impede that activities of NGO’s that are seen to be acting against the government interests.[44] In this case the applicant was an active member of [Organisation 1] in assisting women who have the victim of domestic violence and as a result of activities against women by the authorities. The applicant had been an advocate against such violence against women in the DRC within the International community at conferences in [Country 3], [Country 1] and Australia. As such she is likely to attract the attention of the authorities upon her return to DRC. The fact that applicant has been in Australia and sought protection means that she will be seen as working against the government and come under the scrutiny of the authorities and be detained in the event that she returns to DRC.   

   [43] Op Cit @ p.13

   [44] Op Cit @p.18

3. As such, based on the available country information the Tribunal finds that there is a real chance the applicant will be seriously harmed by reason of her imputed political opinion in the event he returns to DRC. Accordingly, the Tribunal finds that there is not a real chance the applicant will be seriously harmed by reason of his mental condition as a result of his return to Pakistan.

4. Therefore having considered the applicant’s claims singularly and cumulatively, the Tribunal finds that that there are substantial grounds for believing that, as a consequence of being removed from Australia to DRC, there is a real chance that the applicant will suffer serious harm.

5. The Tribunal is therefore satisfied that the applicant does satisfy the criterion set out in s.36(2)(a) for a protection visa and as such he is a person to whom Australia has protection obligations under the Refugees Convention.

Applicant’s complementary protection claim

1. The applicant claims that, without conceding in any way his claims under the Refugee Convention, that the same factual matrix may invoke Australia’s protection obligations under complementary protection criteria pursuant to s.36(2)(aa) of the Act. Accordingly, the Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. That is, the Tribunal has considered if the applicant faces a real risk of significant harm from the authorities on return his return to DRC on the basis that she works for a NGO in DRC and her imputed political opinion.

2. For the reason set out above the Tribunal accepts that there is a real risk the applicant will suffer significant harm in the event she returns to DRC. Having considered her evidence and the available country information the Tribunal accepts her claims and finds that there is a real risk that the applicant will suffer significant harm pursuant to section 36(2A) of the Act by reason that she works for an NGO in DRC (and in particular as a woman) as well as for her actual or imputed political opinion.

3. At no stage did the applicant advance any other reason, such as his race, nationality or religion, in her written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

4. Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk he will suffer significant harm as required by s36(2)(aa).

CONCLUSIONS

1. For the reasons given above, the Tribunal is satisfied that the applicants are  people in respect of whom 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).

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 applicants are people in respect of whom Australia has protection obligations under s.36(2)(aa).

3. The second, third fourth and fifth applicants satisfies s.36(2) on the basis of being a members of the same family unit as people who satisfy s.36(2)(a) or (aa) and who hold a protection visa. Accordingly, the applicants do satisfy the criterion in s.36(2).

DECISION

1. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Jason Pennell
Member