1703968 (Refugee)

[2021] AATA 1794

1703968 (Refugee) [2021] AATA 1794 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703968

COUNTRY OF REFERENCE:                   Congo, Democratic Republic of

MEMBER:Nora Lamont

DATE:7 April 2021

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 07 April 2021 at 11:31am

CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – imputed political opinion – journalist – particular social group – women in the Democratic Republic of Congo – NGO worker – religion – Christian – Bundu dia Kongo movement – victim of rape – detained by intelligence services –  decision under review remitted for reconsideration

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

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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Congo, Democratic Republic applied for the visa on 22 August 2014 and the delegate refused to grant the visa on 27 February 2017.

3. The applicant appeared before the Tribunal on 31 March 2021 to give evidence and present arguments. 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 her registered migration agent.

   Background

5. The applicant is a [age]-year-old female born in Kinshasa Democratic Republic of Congo who has a child born in Australia on [date]. The applicant’s race is YANSI and her religion is Christian. The applicant first arrived in Australia on a [temporary visa] to attend [Event 1] representing [Organisation 1] a non-government organisation based in the DRC. On 22 August 2014 the applicant lodged an application for a Protection Visa.

6. The issue in this case is whether the applicant is owed protection under Australian law as a refugee in respect of the Democratic Republic of Congo (DRC) by reason of her imputed political opinion as a journalist, as a member of a particular social group as a woman in the DRC and due to her religion as a Christian member of Bundu dia Kongo.

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

   RELEVANT LAW

8. 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

9. 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).

10. 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.

11. 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.

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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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’).

20. ‘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.

21. 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

22. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

23. The applicant came to Australia on a Democratic Republic of Congo (DRC) passport, copies of which she provided to the Department. The Delegate had no concerns as to her claimed nationality. The Tribunal accepts that the applicant is a national of DRC and has assessed her protection claims accordingly.

    Claims

24. The applicant’s claims as summarised by the Tribunal are as follows:[1]

    [1] [File number] PAGE 4 and 5 of 16

    ·She studied [journalism] in the DRC and was [working towards] obtaining a [qualification] when she travelled to Australia.

    ·In 2010 the applicant started working for [Media Outlet 1] as an [editor/journalist].  She also [produced] approximately 10-14 [pieces] during her time with [Media Outlet 1].

    ·In 2013 the applicant also jointed [Media Outlet 2]. She was involved in information collating and interviewing [occupation] and did not write for the [outlet].

    ·The applicant volunteers with [Organisation 1] since 2011. In her role as [Occupation 1], she worked with young single mothers between the ages of 12-20 and provided them with trainings on [specified] skills. The applicant attended conferences and training to impart knowledge to the young members.

    ·In August 2013 the applicant was abducted by a group of me on her way back home. She was gang raped and held captive for two days. She was rescued by passers-by and after receiving treatment from a dispensary, was returned to her family. The applicant was scared to report the attack to the police or to be treated at the hospital. She received additional medical treatment at home.

    ·Whist recovering from her injuries, the applicant continued to work from home for [Media Outlet 1, and produced] more work.

    ·On [date] 2014 the applicant was arrested and detained by intelligence officers. She was interrogated about her [journalism] and released two weeks later.

    ·Three or four months later the applicant was arrested again by the intelligence officers due to [her work] criticising the local authority’s inaction in dealing with [a specified issue]. As the applicant was subjected to inhuman conditions in detention, one officer took pity on her and released her after a week. The applicant ran away and went into hiding at a different part of Kinshasa.

    ·The applicant was then contacted by the President of [Organisation 1] about a business trip to Australia to attend [Event 1]. The applicant was reluctant to accept the offer but eventually decided to go because the President persisted and promised to organise her departure at the airport.

    ·Soon after her arrival in Australia, the applicant was advised by her family to stop telephoning home. As they believed the telephone line has been tapped. The applicant has not had any communication with her family.

    ·The applicant claims that she would be arrested, detained and sentenced to death by the DRC authorities due to her profile as a journalist and her profile as a NGO worker, and be subjected to rape and other forms of sexual violence due to her gender, if she were to return to the DRC now or in the reasonably foreseeable future. She claims that as she fears harm from the authorities and those affiliated with the authorities, she cannot seek protection from the state; nor can she relocate within the DRC to evade the feared harm.

    Findings on experiences in DRC

25. During the Tribunal hearing the applicant was forthcoming and her evidence did not vary from what she had in her written claims. The Tribunal found the applicant to be a very credible witness.

26. The applicant explained that being a journalist in the DRC is not the same as being a journalist in Australia. She would [produce work] when issues arose or if there was some event for [Media Outlet 1]. When she sent in [samples of her work] to the Department an issue, they had was the different dates on the [work]. The applicant explained she sent in a mix of different [work] she had [produced] therefore the dates were different. She stated she got paid $[amount per piece]. It was the same with [Media Outlet 2] she made about $[amount]. She had just enough to make ends meet and was living with her parents. The Tribunal has seen the [samples] and accepts the applicant’s explanation about how she [produced work] when issues arose.

27. The applicant spoke about going to school to learn journalism and how it was a passion of hers. She felt bitter about it as there is no freedom of expression in the media in the DRC. One day in 2013 as she was walking home, she was abducted by a group of men, gang raped and beat. After two days they dumped her onto the street. They told her to stop [producing new work]. When she was dumped on the street people did not want to help her, they did not want to get involved. The applicant spoke of how it is not like living in Australia. The police do not assist people and people do not want to get involved in these types of issues.

28. The applicant was not able to avail herself to the police for assistance as in the DRC the bribery rate for police is the highest in Africa with 75 percent of people who had engaged the police having paid a bribe within the previous 12 months. [2]

    [2] Voices.transparency.org/turning-the-tide-of-corruption-in-the-drc

29. Further, World Report 2019: Democratic Republic of Congo reports that “Throughout 2018, government officials and security forces banned peaceful demonstrations; used teargas and in some cases live ammunition to disperse protesters; restricted the movement of opposition leaders; and arbitrarily detained hundreds of pro-democracy and human rights activists opposition supporters, journalists, peaceful protesters, and others. [3]

    [3] Hrw.org/world-report/2019/country-chapters/democratic-republic-congo

30. She [produced a piece] about [a prominent person] which made him angry. After the [piece] was [completed], she started getting threatening phone calls. Then members of the intelligence took her away for two weeks to a “journalist” jail. A jailer took pity on her and she was able to get away. Her parents were receiving calls and when she was in Australia her parents were worried their phone was tapped so they asked her to stop calling them.

31. Since she has left the DRC her sister has reported that authorities were still interested in her and have harassed the family. Authorities came to the family home and the applicant’s cousin [named] was killed as she tried to intervene. The applicant has since found out her sister has gone missing.

32. The Tribunal has regard for country information and contends that the country information backs up the evidence that the applicant has given to the Tribunal. The following country information indicates that being a journalist in the DRC is a dangerous position to have.

33. In its annual report published on 2 November, JED said it has so far registered a total of 85 press freedom violations in the DRC in 2019, including 18 acts of aggression, torture or mistreatment of journalists. Last weekend’s murder brings the number of Congolese journalists murdered in the DRC in the past two decades to 15. [4] The DRC is currently ranked 154th out of 180 countries in RSF’s World Press Freedom Index.

    [4] >

    “Journalists working in the DRC- and in particular local journalists, face a number of challenges, from threats and intimidation, to the confiscation of equipment, to violent attacks. Government crackdowns have also increased in the past few months, likely in anticipation of the 2016 elections,” says Kerry Paterson, Africa Research Associate from the Committee to Protect Journalists.[5]

    [5] >

    “What with threats, intimidation attempts, kidnappings and an execution-style murder, we have logged at least 13 Mai-Mai abuses against journalists and media outlets in the eastern DRC since 2019," said Arnaud Froger, the head of RSF's Africa desk. "It is unacceptable that journalists who are doing the absolutely vital work of covering difficult subjects in the eastern provinces are among the victims of violence, which is taking place with complete impunity and without any steps being taken to protect them. Inaction cannot be a response to this serious situation. We call for firm measures, such as the dedicated mechanism for protecting and securing journalists that RSF has been proposing." [6]

    [6] >

    The Tribunal accepts based on the evidence, documentation, the applicant’s oral testimony and correlating country information that she was a journalist in the Democratic Republic of Congo.

34. Further, country information backs up the applicant’s evidence on being raped and beaten and it shows that authorities have no control over violent rapes and there are so many they do not investigate or pursue suspects.

35. In 2014, there is still a place in the world where rape against women is so common that the perpetrators are not pursued by the authorities. The victims of sexual violence are considered worthless after the act, and the abusers can carry on with their lives without consequence. It is the most dangerous place on Earth to be a woman today, where it is more risky to be a female than it is to be a soldier. This is the reality of life in the Democratic Republic of Congo (DRC). Released for the International Day for the Elimination of Violence Against Women, Caritas Australia’s report highlights the scourge of rape and sexual violence in the central African nation, which has a long and bloody history of war. It is a country of more than 67 million people, 87 per cent of whom live on less than $1.45 a day. But the report reveals another shocking statistic that makes the reality of life in the DRC unthinkable: An estimated 48 women are raped in the country every hour. [7]

    [7] type="1">

36. Survivors of sexual violence in the DRC often have no one to turn to for help. Many displaced women and girls live in remote areas, unable to access medical or legal support, and forced to hide their suffering due to stigma and shame.[8]

    [8] >

    The Tribunal accepts that the applicant was abducted two times and raped and beaten for being a journalist. The above country information confirms that rape and abductions in the DRC is a serious confronting issue which authorities have no control or care over. 

37. The applicant was a volunteer for [Organisation 1]. The applicant was a volunteer [Occupation 1] who worked with single mothers between the ages of 12-20. She regularly attended conferences and when [Event 1] was to be held in [Australia], the applicant was assisted by people she worked with to come to Australia and to get out of the DRC. She was frightened to go to the airport and to leave fearing she would be taken away by the authorities. She was able to get out with the help of her organisation and once in Australia was told not to return. Once she was in Australia, she was homeless and had no one for support. The Tribunal accepts that the applicant was a volunteer for [Organisation 1] and that the organisation helped her to get to Australia.

38. At the hearing the Tribunal asked the applicant about her religion.  The applicant said she is a member of the Bundu dia Kongo movement. The Bundu dia Kongo Movement is a Christian religious/political organisation. When the applicant left the DRC, she did not fear harm due to her religion but there has been an escalation in violence with the movement. The Tribunal has noted that there has been a crackdown on the religious movement and in April 2020 fifty-five people were killed with many more injured in several provinces and in the capitol of Kinshasa.[9] Additionally the leader of the movement was arrested in 2020.

    [9] >

    The applicant is a single mother with a small child born in [Australia]. The applicant advises that her family would reject her for having a child out of wedlock and that it is not socially acceptable to have a baby outside of marriage in the DRC. Indeed, the applicant herself worked with single mothers in the DRC.

    Well-founded fear of persecution in the future

39. Given these findings the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution for a refugee reason on return to her home area in Kinshasa. Having regard to the above country information and what the Tribunal accepts of the applicant’s past experiences in the DRC and profile, the Tribunal is satisfied that she faces more than a remote chance of serious harm on return to her home area in Kinshasa as a person who is a journalist in the DRC and imputed political opinion, and because of her work with an NGO working with single mothers in the past.

40. Although some time has passed since these incidences occurred, the Tribunal accepts she was abducted, raped and beaten on more than one occasion and if she was to return, she would wish to continue to be a journalist and work in NGO’s. In such circumstances the Tribunal is satisfied that the applicant faces a real chance of being threatened, raped, abducted and assaulted upon return to the DRC.

41. Whilst the Tribunal has regard for the applicant’s religion and her membership of particular social groups, the Tribunal is satisfied that the applicant’s work as a journalist and her work at the NGO  and therefore her imputed political opinion is the essential and significant reason for the harm and that the harm is systemic and discriminatory.

42. With respect to state protection, the Tribunal  According to REFWORLD: The OGN for the DRC of May 2012 recognizes that there are specific categories of DRC national who may be able to demonstrate a risk on return to the DRC, such as those of Banyamulenge / Tutsi ethnicity, journalists, human rights activists and political opponents, subject to their level of profile. There is no evidence that all returnees are at risk of ill treatment on return.[10] Having regard for the country information on the murder and torture of journalists above, and that state actors carry out much of this violence, and given the applicant would be a failed asylum seeker returning as a single woman and mother, the Tribunal is satisfied that state protection is not available to the applicant.

    [10] >

    The Tribunal is also not satisfied that the applicant can safely relocate to another part of the DRC to avoid the harm she fears in her home area as the agents of harm are aligned to and authorised by the state. Furthermore, the Tribunal is not satisfied that relocation is not reasonable in the applicant’s case given she would be returning as a single woman, and a single mother.

43. 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 Refugees Convention. Therefore, the applicant satisfies the criterion set out in s.36(2)(a).

44. DECISION

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

    Nora Lamont

    
    

    Member