1702611 (Refugee)

[2019] AATA 1310

1702611 (Refugee) [2019] AATA 1310 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1702611

COUNTRY OF REFERENCE:                  Congo, Democratic Republic of

MEMBER:Jason Pennell

DATE:25 February 2019

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 25 February 2019 at 4.32pm 

CATCHWORDS

REFUGEE – protection visa – Congo – race – Congolese Tutsi  – membership of social group – young Tutsi – imputed political opinion – relative was supporter of M-23 and CNDP Tutsi rebellions – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 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
MIEA v Guo (1997) 191 CLR 559
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 30 January 2017 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 11 July 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 1 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] and [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the French 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 decision under review should be remitted for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act

RELEVANT LAW

1. 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

1. 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).

2. 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.’

3. 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.

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

5. 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

6. 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.

7. 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

8. 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.

9. 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.

10. 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 30 January 2017[6] notes that on the applicant applied for a [temporary visa] on 23 January 2014 [to move to] Australia. His visa was granted on 20 February 2014 and the applicant arrived in Australia [in] February 2014. On 11 July 2014 the applicant lodged his application for a protection visa (subclass866). He currently holds a Bridging Visa (subclass 010) granted in association with his protection visa application.

   [6] AAT file No 1702611 @ f 21

2. The applicant claims to be a citizen of Democratic Republic of Congo (DRC). He states that he was born and raised in Lubumbashi, DRC on [date] to Congolese Tutsi parents. The applicant’s father worked for [an organisation]   in DRC. The applicant says that he has [a few siblings]. He attended primary school [in] Lubumbashi until 1998.

3. In 1998 the applicant’s family were displaced during the Second Congo War. After spending months in a detention camp, the applicant and his family were resettled in Rwanda by the International Committee of the Red Cross (ICRC) in June 1999. The applicant states that he completed secondary school and tertiary education in Rwanda. The applicant attended [a] secondary school [and college for a number of years].On [date] he was conferred a Bachelor [degree] from [a university]. The applicant claimed that in Rwanda his father works as a [consultant] [for an organisation] in Kigali and his [mother] [in an agency]. His parents together with his [siblings] all reside in Rwanda.

Country of Reference

1. The applicant claims that he is a citizen of the Democratic Republic of the Congo (‘the DRC’). In support of his claim that he is a citizen of the DRC he provided a certified copy of his DRC voter’s card[7] and photocopies of his parents DRC voter’s cards.[8]

   [7] Op Cit @ f54

   [8] Op Cit @ f50-53

2. However, the applicant arrived in Australia on a Rwandan [passport].[9] Despite now claiming that he is a citizen of the DRC, his application for a [temporary] visa [dated] 23 January 2014, states that he is a Rwandan citizen. The Visa Grant Notice issued by the department to the applicant by a letter dated 20 February 2014, refers to the applicant is a citizen of Rwandan. Finally, the applicant arrived in Australia on his Rwandan passport [in] February 2014.

   [9] Departmental file [@] f71 & f24-48

3. The applicant claims that he obtained his Rwandan passport in 2010 through an associate of his fathers, known as [Mr C]. The applicant said that for a fee [Mr C] arranged to have his application for a Rwandan passport endorsed [in] Kigali. The applicant said that he then went to the [immigration] office with [Mr C] to provide his photograph and signature and to pay the associated fee to [relevant authority].  The applicant claimed that he was not asked many questions during the process of obtaining his passport and only provided [an identification] card as evidence of his ID.

4. The applicant’s passport expired [in] 2015 and the applicant states that he is not able to renew the passport as he does not have a Rwandan National Identity Card. For a person to renew a Rwandan passport it is necessary to present their Rwandan National Identity Card.[10] Any person wishing to obtain a Rwandan National Identity Card needs to go to the relevant office and prove his or her identity and origin, either with a birth certificate or with a letter from a local leader at the cell administrative level attesting to the applicant's identity.[11] It is generally not possible to obtain the card from outside Rwanda as an individual has to go in person to an office in Rwanda save for those living abroad in countries where there are Rwandan embassies were registered during a process to register those who would receive the cards.[12] The evidence of [Mr B] supported the country information that it was no possible to obtain or renew a Rwandan passport without an Rwandan National Identity Card. Therefore, based on the oral evidence at the hearing and the country information, the Tribunal accepts that the applicant does not have a Rwandan National Identity Card.

   [10]   2019 Rwanda High Commission in Canada   Canada: Immigration and Refugee Board of Canada, Rwanda: Procedures for obtaining the National Identity Card, including a physical description of the card; information on when recent versions of the national identity card were made available and where individuals can obtain such cards; whether previous versions of the card are still valid (2007-2010), 21 September 2010, RWA103584.E, available at: 15 February 2019]

   [12]   Ibid

In February 2014, the German Institute for Global and Area Studies (GIGA) reported that despite being generally 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[13] 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.

[13]   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.[14] 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.[15] 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.[16]

[14]  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]

[16]   Ibid

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.[17]

[17]   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]

The Country Information reports[18] 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.[19]

[18]   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]

[19]   ibid

According to the President of Congolese Association for Access to Justice, [20] 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’.[21] 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’[22]. 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.’[23]

[20]   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)

[22]   Op Cit (ACAJ 20 Mar. 2014)

[23]   Op Cit (Canada 26 Mar. 2014)

The voter cards have been the subject of corruption.  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.[24] 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.[25]

[24]   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]

[25] 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; type="1">

Further, the Congolese daily newspaper, Le Phare, reported that 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.[26]

[26]   ibid

While the Tribunal accepts that issue of documentation fraud in DRC is at epidemic proportions, having sighted the applicant’s DRC voter card and both his parents’ voter cards the Tribunal accepts that he was born in the DRC. It also accepts that the applicant does not possess a Rwandan National Identity Card and, based on the available country information, that he will not be able to renew his Rwandan passport. As such, the Tribunal finds that the applicant is a citizen of DRC.

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[27] it is prohibited in DRC.[28]Accordingly, the Tribunal finds that the applicant cannot be a dual citizen of Rwanda and DRC.

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

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

Therefore, the Tribunal is satisfied that the applicant is a citizen of the DRC and finds that 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 DRC is the applicants receiving country pursuant to s.5 of the Act for the purpose of assessing his complementary protection claims.

Effective Protection by a Third Country.

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.[29]  In WAGH v MIMA[30] 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.

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

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

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.[31]  

[31]   >

The International Air Transport Association [32] 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). 

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

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.

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

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). The Tribunal has determined that the matter should be remitted with the direction that the applicant satisfies s.36(2)(a) of the Migration Act

The applicant’s written claims detailed in the applicant’s application for protection dated 11 July 2014 and the Statement of Claim[33] attached the application. In addition the applicant has provided the Tribunal statutory declarations dated 25 July 2018[34] and statutory declaration dated 28 August 2018.[35] The applicants claims were summarised by the delegate in her decision dated 30 January 2017[36] as follows: 

(a)  The applicant claims that [in] May 2013 he was questioned by two strangers about his background, his association with the rebel group M-23 and about his [relative] [Mr A], who [had connections to] M23[37] [details deleted]. The applicant believed that these two people were from Rwanda Defence Force (RDF).

(b)  The applicants family immediately arranged for the applicant to stay with [another relative] [in a Province], which is [a few hours] from Kilagi, as they had heard that the RDF were implicated in the forced recruitment of young Congolese Tutsi men into M-23 and feared that the applicant might be abducted for the forced recruitment, as happened to the applicant’s [relative], [Mr D]. The applicant stayed with his [other relative] until February 2014 when he left for Australia.

(c)  The applicant claims that in June 2013 the police served a summons on him ordering him to report to the police. The applicant ignored the summons as he believed that the summons was an attempt by the police to locate him. Another summons was served on the applicant in October 2013. The applicant’s father advised the police that the applicant had gone to [Country 1] to study.

(d)  Denis Natre Semadwinga, who was a senior member of the CNDP rebel group, was assassinated in Gisenyi, Rwanda in 2010. The applicant believes that he was killed due to his refusal to affiliate with the Rwanda government to support M-23.

(e)  The applicant claims that if he was to return to Rwanda now or in the reasonably foreseeable future, he would be killed by the police and the army of Rwanda due to his refusal to be forcibly recruited into rebel groups to fight the Tutsi cause in DRC.

(f)    In addition the applicant in his submission dated 25 July 2018 claims that he fears harm from the DRC authorities due to his Tutsi ethnicity, his [relative’s] [connection in M-23] and due to suspicion in the DRC that as a young Tutsi male he would be imputed to have supported the Tutsi rebellion.

[33]   Department file [@] f12-23

[34]   AAT file No 1702611 @ 48-57

[35]   OpCit @ f82-84

[36]   OpCit @ f17

[37]   [Source deleted].

COUNTRY INFORMATION

1. In considering the applicants claim the Tribunal has considered the country information available in relation DRC states.

   ‘Executive Summary[38]

   [38]  US Bureau of democracy, Human Rights and Labour Country reports on Human Rights Practices for 2017 Democratic Republic of Congo. @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[39]

   [39] Op Cit @ p.2

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

   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[40]

   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 neighboring 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.[41]  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.

   [40] Op Cit @ p.3

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

2. According to the Secretary General of the Norwegian Refugee Council, Jan Egeland, the situation in the DRC became much worse in 2016 and 2017 becoming a major moral and humanitarian challenge comparable to the wars in Syria and Yemen. Women and children are abused sexually and ‘abused in all possible manners.’ Apart for the conflict in North Kivu, violence had also increased in the Kasai region. The armed groups are after gold, diamonds, oil, and cobalt for the benefit of both local and overseas interests. In addition ethnic and cultural rivalries together with religious motives and the political crisis with postponed elections are also factors contribution to the crisis. He claimed that the situation in the DRC had become much worse claiming that "The big wars of the Congo that were really on top of the agenda 15 years ago are back and worsening".[42]

   [42] Al Jazeera News (9 March 2018). "UN: Two million children risk starvation in DRC." Al Jazeera News website, >

   Human Rights Watch said in 2017 that Joseph Kabila recruited former M23 fighters to put down country-wide protests over his refusal to step down from office at the end of his term. They claimed that ‘M-23 fighters patrolled the streets of Congo’s main cities, firing on or arresting protesters or anyone else deemed to be a threat to the president’.[43] In addition fighting erupted in Masisi between government forces and a powerful local warlord, General Delta. The United Nations mission in the DRC is its largest and most expensive peacekeeping effort, but it shut down five UN bases near Masisi in 2017, after the US led a push to cut costs.[44]

   Forced Recruitment of Congolese males into groups by Rwandan authorities.

   [43] Human Rights Watch, "DR Congo: Rebels Were Recruited to Crush Protests". Hrw.org. 4 December 2017.

   [44] The Guardian 'The wars will never stop' - millions flee bloodshed as Congo falls apart,’ Jason Burke Masisi, 3 Apr 2018, >

   In 2015 the US State Department Trafficking in Persons Report reported that: [45]

   ‘In 2013, Rwandan government officials reportedly provided material and logistical support to the armed group M23, which operated in the Democratic Republic of the Congo (DRC) and forcibly and fraudulently recruited children and men; however, after its defeat in November 2013, there were no reports the government facilitated the recruitment of children to serve in the M23 after that date.

   [45]   2015 Trafficking in Persons Report- Rwanda; US State Department 27 July 2015, >

   In 2016 the US State Department Trafficking in Persons Report reported that:[46]

   ‘During the reporting period, Burundian men and some children in Rwanda were recruited and used in armed groups; though some recruitment was reportedly voluntary, some were reportedly coerced through physical and verbal threats. Between May and September 2015, Burundian refugees residing in Mahama refugee camp in Rwanda were recruited into non-state armed groups supporting the Burundian opposition; Rwandan security forces charged to protect the camp population reportedly facilitated or tolerated the recruitment activity. Many refugees alleged that recruiters—including both Rwandan officials and other refugees—threatened, intimidated, harassed, and physically assaulted those who refused recruitment attempts. Most recruits were adult males, but in three verified cases, Burundian refugee children were also identified as recruits from Mahama refugee camp’ .…………

   [46]   2016 Trafficking in Persons Report- Rwanda; US State Department June 2016 >

   The 2018 the US State Department Trafficking in Persons Report[47] states that there were ‘no reports of forcible or coerced recruitment out of Mahama refugee camp by Rwandan government officials in 2017.’ In addition the report stated that ‘there were no credible reports of Rwandan government involvement in either the recruitment into armed groups or sexual exploitation of refugees, during the reporting period…..’[48]

   The applicant’s evidence.

   [47]   2018 Trafficking in Persons Report- Rwanda; US State Department June 2018   ibid

3. The applicant’s evidence was that he was born [in] Lubumbashi, DRC.  He claims that he is of Tutsi ethnicity and a Catholic. He states that he has [siblings] and attended primaryschool [information deleted] in Lubumbashi, DRC.[49]

   [49] Statutory Declaration by [the applicant] dated 25 July 2018; AAT File 1702611 @ f57

4. The applicant claims that the majority of the population in Lubumbashi, DRC are ethnic Katangais and that that there are few Tutsi’s in the Lubumbashi area. He says that he recalls being bullied and insulted by other students at school and people in the neighbourhood telling him that he and his family should go back to their country, Rwanda.[50]

   [50] Ibid

1. In or about 1996 when the applicant was about [age] years old, the first rebellion with Laurent Desitre Kabila commenced which was supported by the Rwandan government. The DRC government started saying that the Tutsi in DRC were for Rwanda and did not belong in DRC. In or about November or December 20996 the violence spread south from Kivu to Lubumbashi. As a result of the violence the applicant and his family moved to a friend’s house in Lubumbashi for a period of 3 to 4 months. After the rebellion, in about April or May 1997, they returned to their home and the applicant returned to school.[51]

   [51] Ibid

2. In or about 1998, the applicant’s father was detained by the police. The DRC police visited the applicant’s home and made his family sit in the corner at gun point while they went through the house taking valuables. The applicant with his mother and [sibling] then went to live a friend or a month before being detained by the police [at a location] with other ethnic Tutsi’s.[52] The applicant’s father was also detained [at a location]. While the applicant and his family were in detention in or about 1999, his mother had his [sibling], [name deleted].

   [52] OpCit @ f55

3. In or about 1998 or 1999 the Red Cross commenced assisting people held in detention at [at a location]. In June 1999 the applicant and his family were resettled by the International Committee of the Red Cross to Kigali, Rwanda.  The applicant and his family were provided refugee cards in DRC and their files transferred to Rwanda upon their arrival. The applicant and his family had relatives in Rwanda who had fled DRC in 1994 as a result of the Hutus militia. 

4. The applicant says that they arrived in Rwanda at a time that the country was recovering for the genocide. As a result for educated people, even though they were refugees, were educated and therefore able to find work. The applicant’s mother had a degree [and] obtained a job [in a named agency] in or about 2000. The applicant’s father worked [in an occupation].

5. The applicant states that he completed [his] education in Rwanda. The applicant attended [school for a number of years].  [He] was conferred a Bachelor [degree] from the [University].

6. The applicant’s parents together with his [siblings] continue to reside in Rwanda.

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 Congolese Tutsi, membership of a social group, as a young Tutsi male and member of [Family D] and by reason of his imputed political opinion as a supporter of M23 and CNDP Tutsi rebellions

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.[53]

   [53]    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 Congolese Tutsi and a member of [Family D].  As such the Tribunal accepts that as a member of the Congolese Tutsi and young Tutsi male 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 Congolese Tutsi and young Tutsi male.  

Applicant’s well-founded fear.

1. In Chan v MIEA[54] 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.[55]

   [54] (1989) 169 CLR 379 at 396.

   [55] (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 M23 and the FARDC.

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 [56]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.’

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

4. In MIEA v Guo, the Court stated that: [57]

   ‘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.’

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

5. 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 applicants evidence was supported by both [Mr A] and [Mr B]. The Tribunal accepts the applicant’s evidence that the ethnic tension towards the Congolese Tutsi’s remains very high in the DRC. 

   Applicants claimed persecution in Rwanda

6. In addition the applicant claims that he will be persecuted if he returns to Rwanda due to his refusal to affiliate with the Rwanda government and support M-23. In circumstances where the Tribunal has found that the applicant would not be returned to Rwanda, it is not necessary for the Tribunal to consider this claim.  

   Applicant as a member of [Family D].

7. In addition the applicant claims to fear persecution by reason of his membership of a social group, being a member of the [Family D]. As referred to above the applicant’s [relative had connections to the] M-23 rebel group [information deleted].[58] [Information deleted].[59]

   [58] [Source deleted].

   [59] [Source deleted].

8. The Tribunal accepts that the applicant may experience some discrimination as a result of being a member of [Family D]. However, in circumstances where the M-23 troops surrendered on 7 November 2013, there have been no further reports of recruitment of troops by Rwandan authorities,  [information deleted], the Tribunal does not accept that in and of its self that such discrimination will amount to persecution. Nevertheless, the Tribunal does accept that as a member of [Family D] his profile as a Congolese Tutsi and supporter of M-23 is enhanced and as such increasing his chance that he may be seriously harmed in the event he is returned to DRC.

Applicant as a Congolese Tutsi

1. Based on the applicant’s oral evidence and the documentary evidence presented to the Tribunal, it accepts that the applicant was born in DRC and is an ethnic Tutsi.

2. The applicant claims that he will be persecuted in the DRC by reason of the fact that he is a Congolese Tutsi.  Both [Mr A] and [Mr B] supported the applicant’s evidence that as a Congolese Tutsi he will be persecuted in the DRC. The country information indicates that, some members of the general population in the DRC do not consider the Congolese Tutsis (also generally known as Banyamulenge) to be true Congolese. The Immigration and Refugee Board of Canada report dated 12 March 2013[60] noted that there is a deep hatred among the Congolese for 'Rwandophones,' especially those of Tutsi origin. It referred to the President of SHIKAMA who stated:[61]

   ‘First, we suffered war and violence like members of the other communities-killings and other violations, forced displacement, exile, poverty, etc. Then we were classified by the rest of the 60 million Congolese who collectively identify us as the source of all their problems: accusations of all kinds, distrust, contempt, hatred, and sometimes even violence are all directed at the Tutsis. The war only worsens our situation and our condition. The war maintains this marginalization that people claim to be fighting against. Unfortunately, the allegiance of some of our brothers (including Congolese Hutus among others) in Rwanda reinforces the feeling among other communities that we are not sufficiently Congolese that we are conspiring against the Congo, and so on. Moreover, it is still impossible for ordinary people to differentiate between the instigators of these issues and the majority of ordinary Tutsis who often have nothing to do with political and military activities.’

   [60] Canada: Immigration and Refugee Board of Canada, Democratic Republic of Congo: The treatment of the Banyamulenge, or Congolese Tutsis, living in the provinces of North Kivu and South Kivu and in Kinshasa (2010-Feb. 2013), 12 March 2013, COD104321.FE, available at: 18 February 2019]

   [61] ibid

3. The Canadian report notes that according to Minority Rights Group International (MRG), the population throughout much of the territory of both Kivus lives ‘in a state of permanent insecurity.’ It states that the Banyamulenge and other ethnic groups in the DRC are identified on the MRG's list of the people most under threat. The DRC is ranked as the country with the seventh highest level of risk risks of genocide...or other systemic violent repression.[62]

   [62] ibid

4. According to Freedom House, ethnic discrimination, especially toward the Banyamulenge in South Kivu, is still "a major problem" in the DRC.

5. According to MONUSCO, since the creation of the M23, there has been an increase in tension between the Banyamulenge, the Bembe and the Bafuliru in the Fizi territory in South Kivu. The President of SHIKAMA stated in his interview that the M-23 has caused increased resentment and rejection of the Congolese Tutsi community by other populations in the DRC[63] despite there being no members of the Banyamulenge in the M-23, and most of the Banyamulenge do not support the M23.[64]

   [63] OpCit per BurundiVision 14 Dec. 2012

   [64] Ibid. the article noted that corroborating information could not be found among the sources consulted by the Research Directorate.

6. In a statement made on 15 September 1998, before the Sub-Committee on Africa, House International Relations Committee of the U.S. Congress, Susan E. Rice, Assistant Secretary for African Affairs,[65] explained that the Congolese Government has failed to resolve the crucial issue of the Banyamulenge citizenship, to ensure that ethnic Tutsis who have lived in the Congo for generations enjoy national rights and privileges. These failures have undermined regional security and contributed to the current perilous situation. From the available country information there appears to have been little progress by the DRC government to rectify this situation.

   [65] Canada: Immigration and Refugee Board of Canada, Democratic Republic of Congo (DRC): The Banyamulenge (Munyamulenge) ethnic group; whether members of this group are targeted by government authorities, 1 December 2000, RDC35883.F, available at: 20 February 2019.

7. Based on the available country information the Tribunal accepts that as a Congolese Tutsi the applicant is at risk of being discriminated and harassed by the local population and is at risk of discrimination and harassment by local groups. The country information reports that recently there has been an escalation of violence arising out of the financial rewards, for both local and overseas parties, to be gained from the DRC’s natural resources together with the combination of ethnic and cultural rivalries with religious and political motives. [66]  As a result the increased violence the chance of the applicant, as a Congolese Tutsi being seriously harmed has greatly increased in circumstances where the local population has limited transparency into political and economic reasons for the violence in the DRC.

Applicant as a young Tutsi male.

[66] Al Jazeera News (9 March 2018). "UN: Two million children risk starvation in DRC." Al Jazeera News website, type="1">

The applicant claims that as a young Tutsi male there is a real chance that he will suffer serious harm. He says that as because he is male and relatively young that he will be seen as a person who is most likely to take up arms against the Congolese population by fighting for M-23 or some other militia group. 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.

The Tribunal accepts that the forced recruitment for M-23 has ceased by the Rwanda authorities and as such does not accept that he is at risk of being recruited to fight for the M-23.

However, the Tribunal notes that the former Congolese President, Joseph Kabila, after the demise of M-23 recruited its former fighters to put down country-wide protests over his refusal to step down from office at the end of his term. This resulted in M-23 fighters firing on or arresting local Congolese population deemed to have been a threat to the president.[67] As a result the local population sees the M-23 as having inflicted violence on them without necessarily understanding or appreciating the backing or motives for such actions. That is there is no distinction in the local mind between M-23 backed by the Rwandan government those members of the M-23 acting on the orders of Joseph Kabila. As such given that there has been an increase in violence over financial, ethnic and cultural issues in recent times, the Tribunal accepts that there is a real chance that, as a young Tutsi male, he will be accused of being an M-23 fighter and as such will suffer serious harm.

Applicant’s imputed political opinion as supporter of M23

[67] Human Rights Watch, "DR Congo: Rebels Were Recruited to Crush Protests". Hrw.org. 4 December 2017.

1. Finally, the applicant claims to fear harm in the DRC by reason of his imputed political opinion. He states that as a Congolese Tutsi and being a young male he will be imputed with the political opinion of being a member of the M-23 Rebel Group and CNDP Tutsi Rebellions. 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. In addition members of the M-23 were recruited by Joseph Kabila to resist protests by the local population as a result of his failure to step down and to call a general election.  As a result, the applicant claims that he is considered a traitor and would be subjected to harm by the local population and rival militia forces. 

2. 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.[68]

   [68] 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, >

   In addition it is reports that rebels have attacked medical units assisting in the Ebola crisis, together with DRC army positions and abducted a dozen children aged between five and ten. While the reported attacks by rebel group appears to be opportunistic and random, the Tribunal does accept that as a result of being ethnic Tutsi, a young Tutsi male and a member of [Family D], he would be imputed with the political opinion of being a member of the M-23 and or the CNDP. As a result, on a cumulative basis, the risk of him being seriously harmed in an environment that is already subjected to militia attacks is increased. Therefore, the Tribunal finds that there is a real chance the applicant will be seriously harmed in the event that he is returned to DRC.

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 reasons of his race, as an ethnic Tutsi, his membership of a social group, as a young Tutsi male, and his imputed political opinion as a member of M-23.

Relocation

1. The Congolese government of  Kabila urged the "indigenous" population to fight not only the invading RPA ( Rwandan Patriotic Army ), but also the Congolese Tutsi civilians, the mostly affected being Banyamulenge.[69] Whule the Congolese Tutsi are primarily from the north east of the DRC, the action of the government and failure of the government to ensure that ethnic Tutsis enjoy national rights and privileges in the DRC means that it is not possible for the applicant to be relocated to another part of DRC.

State Protection.

[69] Mamdani, Mahmoud (2001). When Victims Become Killers: Colonialism, Nativism, and the Genocide in Rwanda. Princeton, NJ: Princeton University Press. ISBN 0-691-05821-0.

1. While the Tribunal acknowledges there has been a change in government more recently in the DRC, it is noted that such change has not resulted in a deduction in violence within the DRC. The issue of Banyamulenge citizenship, to ensure that ethnic Tutsis who have lived in the Congo for generations enjoy national rights and privileges, has not been resolved.  It continues to undermine regional security and contribute to the current perilous situation.

2. The Police nationale congolaise (Congolese National Police) is the police throughout the territory of the Democratic Republic of the Congo. It was composed of between 110,000 and 150,000 officers as of 2010.[70] However, the police force is staffed by ex-soldiers and former rebels, riddled with corruption, poorly trained and lacking basic equipment and is generally viewed as more of a threat to the population than a guarantor of its security.[71] With a salary of barely US$30 a month, police in DRC often abuse their power by extorting money from civilians.[72]

   [70] New laws for police reform in the DRC IRIN News. 2010, ibid

   [72] ibid

Accordingly, based on the available country information the Tribunal is satisfied and finds that the applicant will not be able to access appropriate state protection in the DRC. 

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.

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 on the basis that he is an ethnic Tutsi, a young Tutsi male and by reason of his claimed 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 he returns to DRC. Having considered his evidence and the available country information the Tribunal accepts his 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 he is an ethnic Tutsi, a young Tutsi male and as a result of his claimed imputed political opinion.

3. At no stage did the applicant advance any other reason, in his written or oral claims that he 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 the DRC, 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 applicant is a person 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 applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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