1702611 (Refugee)

This matter concerned an application for a protection visa by a Congolese Tutsi individual. The applicant claimed to fear persecution in the Democratic Republic of Congo (DRC) based on his race as a Congolese Tutsi, his membership in the social group of young Tutsi males, and an imputed political opinion as a supporter of the M-23 and CNDP Tutsi rebellions. The decision under review was made by the Tribunal, and the case was heard by Jason Pennell.

The primary legal issues before the court were whether the applicant had a well-founded fear of persecution based on Convention grounds, specifically race, membership of a particular social group, and imputed political opinion, and whether Australia had protection obligations towards him under the Migration Act 1958 (Cth). The court was required to assess the objective and subjective elements of a well-founded fear, considering the applicant's personal circumstances in light of extensive country information regarding the volatile situation in the DRC, including ethnic tensions, violence, and the actions of various armed groups and government forces.

The court applied the principles established in cases such as *Chan v MIEA* and *MIEA v Guo* regarding the assessment of a "well-founded fear," which requires both a genuine subjective fear and an objective basis supported by credible evidence, indicating a real chance of persecution. The Tribunal accepted the applicant's evidence that he is a Congolese Tutsi and a member of a specific family with alleged connections to the M-23 rebel group. It found that as a Congolese Tutsi, he faced a real risk of discrimination and harassment, exacerbated by recent escalations in violence and ethnic rivalries. Furthermore, the court accepted that as a young Tutsi male, he risked being accused of being an M-23 fighter and suffering serious harm, particularly given the historical recruitment of former M-23 fighters by the former President Kabila. Cumulatively, considering his race, membership in the social group of young Tutsi males, and imputed political opinion, the Tribunal concluded there were substantial grounds for believing the applicant would suffer serious harm if returned to the DRC and that he would not be able to access adequate state protection.

The Tribunal was satisfied that the applicant met the criteria for a protection visa under s.36(2)(a) of the Migration Act, as well as the alternative criterion for complementary protection under s.36(2)(aa). Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies s.36(2)(a) of the Migration Act, meaning Australia has protection obligations towards him under the Refugee Convention.