1703535 (Refugee)

[2021] AATA 1940

1703535 (Refugee) [2021] AATA 1940 (6 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1703535

COUNTRY OF REFERENCE:                   Congo, Democratic Republic of

MEMBER:C. Packer

DATE:6 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

s.36(2)(a)(i) that the first named applicant satisfies of the Migration Act; and

(ii)that the other applicant s.36(2)(b)(i) satisfies of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 06 May 2021 at 8:04pm

CATCHWORDS

REFUGEE – protection visa – Democratic Republic of Congo – particular social group – women – female NGO worker – imputed political opinion – opposition to the – fear of detention – fear of torture – police summons – physical assault government – member of the family unit – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91
Migration Regulations 1994, Schedule 2; r 1.12

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 dependants.

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 and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Democratic Republic of Congo (DRC), applied for the visas on 22 August 2014. The delegate refused to grant the visas on 20 February 2017 on the basis that the first-named applicant (the applicant) is not a credible witness.

3. The applicant appeared before the Tribunal on 30 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The applicants were represented in relation to the review by their registered migration agent.

4. The applicant’s claims in the application had been centred on the applicant’s fear of the government because her husband was [Position 1] of a non-government organisation (NGO) in DRC who had come to the adverse attention of the authorities. She additionally claimed she had worked for the NGO in DRC and she also had come to the adverse attention of the authorities when she had been seriously attacked and hospitalised in February 2014. After considering her evidence and the material before the Tribunal, I find that in the Democratic Republic of Congo her profile as a woman who had been an NGO worker with an imputed anti-government political opinion leads her to meet the refugee criterion. My assessment follows.

   RELEVANT LAW

5. 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

6. 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).

7. 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.

8. 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.

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

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. 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.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. 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.

14. 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.

15. 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

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Mandatory considerations

19. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include children.

    CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

    Background

21. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details in the review and at the hearing. The applicant is a mature woman born in Kolwezi, Katanga, in DRC. She indicated addresses in Kinshasa from 2002. She had been employed as a [occupation 1] at [NGO 1] Kinshasa from [year] to “current”. She travelled to [Country 1] in May-June 2013 and [Country 2] in July 2013.

22. At hearing she stated her husband had been long detained and mistreated. After he had been released he is undertaking a low profile in DRC and did not live at home. Her children and dependants live with her [relatives]. She has [specified family members]- [specified siblings] live in [Country 3] as they had been born there. In Australia she lives at a Pastor’s house; she works part-time as [an occupation 2] in [an industry]. Her daughter attends school.  

    Country information

23. The Tribunal considered the reports and citations provided by the applicant and representatives, that included the US Department of State: Country Report on Human Rights Practices 2019 - Democratic Republic of the Congo, 11 March 2020. As well as the following reports (excerpts below):

    Freedom House, Freedom in the World 2021, Democratic Republic of the Congo
    [ as Not Free 20/100, political rights 5/40, civil liberties 15/60.

    Overview
    The political system in the Democratic Republic of Congo (DRC) has been paralyzed in recent years by the manipulation of the electoral process by political elites. Citizens are unable to freely exercise basic civil liberties, and corruption is endemic. Physical security is tenuous due to violence and human rights abuses committed by government forces, as well as armed rebel groups and militias that are active in many areas of the country.

    E2  Is there freedom for nongovernmental organizations, particularly those that are engaged in human rights– and governance-related work?
    Thousands of NGOs are active in the DRC, but many face obstacles to their work. Domestic human rights advocates in particular are subject to harassment, arbitrary arrest, and detention. In May 2020, the UN Joint Human Rights Office in Congo publicly criticized their ongoing treatment. Female NGO workers in the health-care field have been subjected to sexual exploitation in the DRC. In September 2020, the New Humanitarian and Reuters reported that individuals supporting an Ebola response effort in the DRC were regularly forced to engage in sex acts to gain employment from NGOs and the Health Ministry.
    F3  Is there protection from the illegitimate use of physical force and freedom from war and insurgencies?
    Prison conditions are life-threatening, and torture of detainees is common. Civilian authorities do not effectively control security forces. The military is notoriously undisciplined. Incidents of soldiers exchanging intelligence and weapons with rebel or militia groups continued during 2020. Soldiers and police regularly commit serious human rights abuses, including rape and other physical attacks, and high-ranking military officials enjoy impunity for crimes.
    Government forces have participated in summary killings and forced disappearances, and the judicial system has not held officials accountable. Senior intelligence officials accused of serious human rights abuses have not been tried for their acts. In July 2020, General Gabriel Amisi Kumba, who was sanctioned by the United States and European Union for human rights abuses, was appointed army chief, succeeding another general who faced sanctions.
    G3  Do individuals enjoy personal social freedoms, including choice of marriage partner and size of family, protection from domestic violence, and control over appearance?
    Sexual and gender-based violence is common; sex crimes affect women, girls, men, and boys. Rebel fighters and government soldiers have regularly been implicated in rape and sexual abuse. Rebel commanders have abducted girls into forced marriages. Convictions for these offenses remain rare. Abortion is prohibited except to save the life of a pregnant woman, and illegal abortions can draw lengthy prison sentences.
    The family code obliges wives to obey their husbands, who are designated as the heads of their households. Married women are under the legal guardianship of their husbands.

    Human Rights Watch report 2021, Democratic Republic of Congo, Events of 2020
    [ rights in the Democratic Republic of Congo under President Felix Tshisekedi took a downturn in 2020, against the backdrop of the gains made during his first year in office. Congolese authorities cracked down on peaceful protesters, journalists, and politicians, while using state of emergency measures temporarily imposed due to the Covid-19 pandemic as a pretext to curb protests.

    Freedom of Expression, Peaceful Assembly, and Media
    Dozens of people who criticized government policies, including on social media, were intimidated and threatened, beaten, arrested, and in some cases prosecuted. Particularly targeted by authorities across the country, journalists faced threats and harassment, and some broadcast programs or outlets were shut down upon instructions from officials.
    Between March and July, as large public gatherings were banned under the state of emergency aimed at stopping the spread of Covid-19, security forces used excessive and often lethal force to break up demonstrations.
    On July 9, as mass protests took place in several cities against the appointment of a new president for the electoral commission, police killed at least one demonstrator in the capital, Kinshasa, and two in the southern city of Lubumbashi. Scores more were injured. In the following days, the bodies of four members of Tshisekedi’s political party were found in Lubumbashi—three were floating in a river—in apparent murders.
    Human rights defenders faced threats, intimidation, arbitrary arrest, and detention from both state authorities and armed groups. Nobel Laureate Dr. Denis Mukwege received death threats for his advocacy of justice for serious crimes.

    ICNL International Center for Not-for-profit Law, Democratic Republic of the Congo, updated 29 January 2021
    [ society today continues to operate in a complex social, economic, cultural, and political environment and struggles to guard against manipulation by various political forces, including the governing majority on the one side and the opposing minority on the other. The government has increasingly cracked down on criticism, including through the forced “disappearance” of journalists and the blocking of opposition protests. The public authorities justify these crackdowns as necessary to preserve “public order” and have used the same justification when implementing COVID-19 measures, such as curfews and bans on demonstrations and public gatherings. Consequently, Congolese civil society has become increasingly divided into two political camps: some CSOs are aligned with opposition political parties that desire political change through new elections, while other CSOs support maintaining the status quo and the political parties in power.

    International rankings
    Ranking Body  Rank  Ranking Scale

    (best – worst possible)

    UN Human Development Index                   179 (2019)  1 – 187
    World Bank Rule of Law Index   4 (2018)  100 – 0
    World Bank Voice & Accountability Index         9 (2018)  100 – 0
    Transparency International       165 (2020)  1 – 180
    Freedom House: Freedom in the World        Status: Not Free     (Free/Partly Free/Not Free)

    Political Rights: 4                   40 - 1

    Civil Liberties: 14 (2020)        60 - 1

    Foreign Policy: Fragile States Index             5 (2020)  178 – 1

    UK Home Office, Country Policy and Information Note, Democratic Republic of Congo: Opposition to government, November 2019.

    c) Civil society activists, human rights defenders and members of the Church

    2.4.19 Before and during the elections political divisions and intolerance led to numerous cases of threats and intimidation against human rights defenders and other civil society activists, including members of the Church. There have been instances of judicial harassment and some members of civil society have been arrested, detained and subjected to acts of torture or ill-treatment. Despite a decrease in violations compared with 2018, as observed by the UN Security Council, several 2019 peaceful demonstrations were suppressed by the authorities and resulted in arrests, violence, ill-treatment, beatings and injuries of civil society activists (see Civil society, human rights defenders and the Church).

    2.4.20 Simply being a member of the Church, a human rights defender or of civil society group is not likely to result in the person being at risk of serious harm or persecution. The onus is on the person to show that their profile, activities and/or past treatment at the hands of the state are such that the authorities are likely to view them adversely and subject them to treatment amounting to persecution or serious harm.

    2.4.25 Therefore there are not very strong grounds supported by cogent evidence to depart from the UT’s finding’s in BM. Decision makers must consider each case on its facts to determine if there is a risk of persecution or serious harm. Factors to take into account include:

    • The profile, size, and organisation of the group / organisation the person belongs
    • its aims and activities and stance towards the new government;
    • whether it has a presence in the DRC as well as outside of the country and any evidence that it is monitored by the government
    • The person’s profile and political activities (including those online) and relevant documentary or other evidence
    • The profile and activities of family members
    • Past treatment – harassment, discrimination, arrest and ill treatment, release, and reason for release

    Summary of claims

1. In the application the applicant claimed to fear harm in DRC given her work with the non-government organization accredited with the United Nations named [NGO 1]. At [NGO 1] she worked as a [occupation 1], and her husband was the [Position 1]. Her attendance at [an international event] further imputed her with anti-government sentiments. She claimed that on [a day in] February 2014 she had been assaulted by government agents and hospitalised; previously her husband had been abducted and detained April to June 2012; subsequently her husband disappeared on returning to DRC [in] August 2014 and up to August 2016 he remained missing. She produced a letter from [NGO 1] dated [in] August 2016 to support the claim of his disappearance.

2. In the review she claimed that in February 2017 shortly after her application had been refused, she was contacted by a person who had worked at the NGO. She was told that her husband had been arrested when he returned to DRC, detained and tortured, but had been released. After release, the husband was scared to contact her directly in case he was being monitored, although subsequently he spoke to her using friends’ phones. Since his release he lives away from their home in fear, he keeps a low profile, and has not departed as he fears being re-arrested at the airport. She provided a copy of his old passport to support this claim.

3. She contacted a Human Rights organisation in DRC and sought their assistance in obtaining evidence about the husband’s problems with the authorities. In about 2019 the organisation forwarded a document “they believed to belong to the Ministry of Interior and DRC National Intelligence that signified a list of people who the Intelligence Agency had an interest in. This document states my husband is a subject they are interested in.” She provided a copy of the document to support this claim.

4. There is a police summons requiring she report to the police. She provided a copy of the document to support this claim.

5. She fears that on entering DRC she would be arrested and detained, sexually abused in prison and tortured.

6. At hearing she stated she last spoke to her husband five days before when he phoned using a friend’s phone; he is scared and wishes to leave DRC but has not sought a new passport. I put to the applicant that it seemed an unlikely coincidence that within days of her application being refused she had received news of her husband being freed. She agreed and responded that nonetheless that is what happened. I put to her my concerns that the copy I had sighted of the husband’s old passport did not have page numbers so I could not verify that all the pages were in the copy. She responded that she had provided all the pages, and she produced her old passport and pointed out the page numbers within the page background. She stated the passport copy had been mailed to her, and she would seek to get a better copy of the passport (in the event I did not delay my decision in order to sight another copy).

7. I put my concerns to her that it seemed unlikely a non-government organisation in DRC would be able to obtain a secret classified government document that showed a list of people that the DRC Intelligence Agency had an adverse interest in. She responded that she had reached out to the [named human rights organisation] and they sent the document to her in 2019. She did not know how they had obtained it; she was told someone had a contact there and perhaps was given a favour.

8. I asked whether she had a scar where she had been stabbed in the chest. She responded she did and went to show me, however, I indicated I did not need to see the scar and that I would accept she was scarred.

9. I queried whether anything-else had happened to her on the night she had been attacked and stabbed, and she remained mute for an extended time. Her facial expression and extended muteness led me to consider that she had been unable to talk further about the occurrence.

10. Submissions submit the applicant fears harm in DRC for Convention reasons:

    ·Political opinion (imputed) of being opposed to the DRC government

    ·Membership of a particular social group, of women in the DRC

    ·Membership of a particular social group, of NGO workers

    Evidence

11. The evidence before the Tribunal includes the following material:

    ·the applicants’ Protection visa application form lodged in August 2014, and statement concerning reasons for seeking protection in Australia

    ·passport pages (expired passports)

    ·a letter dated [in] August 2016 from [NGO 1] (in French and translated)

    ·the Protection visa decision record (‘delegate’s decision’) dated in February 2017, which is the subject of this review, and she provided a copy to the Tribunal

    ·the application for review

    ·a copy of the husband’s old passport

    ·a copy of an DRC Intelligence report

    ·a copy of a Police document/summons

12. On 30 April 2021 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an accredited interpreter in the French and English languages. The applicant stated she understood the interpreter, and during the hearing did not tell me of any particular difficulties with the interpretation.

13. Before the hearing a submission stated the applicant instructs she has difficulty remembering things.

14. At the start of the hearing I asked whether she was able to talk about her claims, and she indicated she was able to. During the hearing the applicant appeared to fully understand questions and gave coherent answers and explanations. Overall, I assess that she was competent to give evidence and had a full opportunity to put forward her claims and arguments.

    Assessment of claims

15. The applicant claims to be a national of Democratic Republic of Congo. I sighted a copy of her passport. All the available evidence, including the applicant’s oral evidence and familiarity with Democratic Republic of Congo, supports her claim to be a DRC national. DRC is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing her claims against the complementary protection grounds. Having considered the material before the Tribunal, I accept she has the claimed identity.

    Her residence in Democratic Republic of Congo

16. Having considered the applicant’s evidence at the hearing, and the supporting documents, I find the applicant is a credible witness. I accept she is a woman who lived in Kinshasa where she had a difficult life. I accept she had been employed as a [occupation 1] at [NGO 1] Kinshasa from [year] to the time she departed DRC. Her work is supported by her travel to Australia to attend an [international event] and the Australian visa that she was granted in order to attend.

17. Having heard her evidence at hearing, I accept that she was seriously assaulted and stabbed by the DRC authorities or their agents [in] February 2014. Her past evidence that her husband had been out of the country at the time, and that he returned home soon after the occurrence to be with her, is supported by stamps in his old passport (provided in the review) that showed the husband departed DRC on [a date in February] 2014 and returned on [a date in March] 2014, and this gives further weight to my assessment that she is a credible witness. That she was seriously injured is supported by her chest scar.

18. Because of her work for an NGO that had an international profile, I find it credible that the DRC authorities considered her to be an NGO worker for a small NGO that was active in the international community. I accept that her marriage to the [NGO 1] [Position 1], and travel to international conferences in [Country 1] in May-June 2013 and [Country 2] in July 2013, had elevated her profile in DRC before she had been assaulted and before she last departed. In light of her past profile in DRC, and the past adverse attention of the authorities/their agents, I find her claim that before she last departed she had been imputed with anti-government sentiments is credible. I accept that her attendance at an [international event] in Australia would have further imputed her with anti-government sentiments.

19. I accept that her overseas travel (before and after she departed in July 2014) would have elevated her profile in DRC. The claimed adverse attention of the DRC authorities and their agents is consistent with foregoing country information cited that shows NGO workers- and particularly those with a higher profile- have been targeted and harmed over a long period.

20. I accept the husband had been [Position 1] of [NGO 1] and he had attended related international conferences before they entered Australia. In light of my foregoing discussion I accept that this would have given him an imputed anti-government sentiment and would have brought him to the adverse attention of the DRC authorities and their agents. I accept that the husband’s profile in DRC would ostensibly add to the applicant’s profile in DRC.

21. The applicant also provided a DRC police document (and English translation) that showed she had been summonsed to attend the police station on [a date in] July 2014 for a reason “to be disclosed on site”. The Tribunal is not able to verify the document, and as I put to the applicant at hearing, country information shows the DRC is a country where corruption is high and false documents are easily obtainable. Nonetheless, the applicant’s explanation that the document had been provided to her neighbours in Kinshasa at the time is credible. As well, that the summons is dated at the time the applicant had just departed DRC, and not a more recent date, weighs against the document having been falsely made for the purposes of the review. For these reasons, and in light of my finding that the applicant is a credible witness, I accept that the applicant had been summonsed to attend the police in July 2014 for an undisclosed reason.

    The husband’s residence in Democratic Republic of Congo

22. While I considered the applicant to be a credible witness when she spoke about her personal circumstances, I nonetheless have residual concerns with some of her claims concerning her husband. Her claims that the husband had been abducted and held captive by government agents from April to June 2012, and then from August 2014 to February 2017 is entirely consistent with country evidence about the treatment of NGO workers/officials in DRC by the DRC authorities. But, as I put to the applicant at hearing, it seemed an unlikely coincidence that within days of her application being refused she had received news of her husband being freed. She agreed and responded that nonetheless that is what happened.

23. While the applicant’s narrative is supported by a secret classified DRC government document that showed a list of people that the DRC Intelligence Agency had an adverse interest in and the husband’s name appeared on the list, as I put to her at hearing, it seemed unlikely a non-government organisation in DRC would be able to obtain such a secret classified government document. She merely responded that she had not been told how the document had been obtained: she had reached out to the [named human rights organisation] and they sent the document to her in 2019.

24. Her claim that the NGO sent the husband’s name to international conferences but he did not in fact attend, is ostensibly supported by the letter from [NGO 1] dated [in] August 2016 that explained the [Position 1] had been missing for two years. While her claim is not implausible, the actions of the NGO in providing the name of the [Position 1] to international conferences over several years, and using his electronically-stored signature on documents, raises concerns with the NGO’s credibility. Nonetheless, the Tribunal searched the internet for references to [NGO 1] and noted that while the NGO had been accredited with the UN in [2018], the available references show scant actual activity over several years.  

25. While the husband’s old passport valid to [2018] appears to support her claims that he had not departed DRC since returning in August 2014 (at least up to [2018]), the poor quality of the copy of the passport means the passport cannot be verified.

    Conclusion

26. I have assessed whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if she returns to Democratic Republic of Congo, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future.

27. Having considered the claims and evidence I find that the applicant is a DRC national. She is a mature woman, and she has a husband in hiding in the DRC and several dependants and extended family. Kinshasa, the capital of DRC, is where she last resided and so I find it is most likely that if she returns to DRC she would return to Kinshasa. 

28. I accept that her past employment as an NGO worker, her travel outside DRC to attend international conferences related to her NGO work, and her husband’s position as a [Position 1] of an NGO, have in the past brought her to the adverse attention of the DRC authorities and their agents. I accept that she has been seriously harmed by the DRC authorities/their agents in February 2014. I accept she departed DRC within months of that attack and has not returned. I accept the police had searched for her for unspecified reasons at the time she departed. I accept that her travel to Australia to attend an [international event] would have added to the adverse interest of the DRC authorities. I find her claim that before she last departed she had been imputed with anti-government sentiments is credible, and that her attendance at an [international event] in Australia would have further imputed her with anti-government sentiments.

29. The adverse attention of the DRC authorities and their agents is consistent with foregoing country information cited that shows NGO workers- and particularly those with a higher profile- have been targeted and harmed over a long period in DRC.

30. I find because of her past and ongoing political profile, actual or imputed, there is a real chance that on return to DRC the applicant would be detained, interrogated, and harmed in prison. As well, she is a mature woman, and country information shows that women in DRC are generally at high risk of harm and in particular a high risk of harm if they come to the adverse attention of the DRC authorities and their agents. I accept that the applicant has faced violence in DRC in the past and I find that as a woman she remains particularly vulnerable, either in prison or in the community. 

31. Having considered her personal circumstances and in light of country information I find there is a real chance she will face serious harm from DRC authorities and their agents when she enters DRC, or after she leaves the airport and enters the community. I find this is because she is a woman with a past and ongoing anti-government political profile, actual or imputed.

32. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

33. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the daughter is a member of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

34. The Tribunal remits the matter for reconsideration with the following directions:

    (i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

    (ii) that the other applicant satisfies s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

    C. Packer
    Member