1720116 (Refugee)
[2021] AATA 3502
•11 August 2021
1720116 (Refugee) [2021] AATA 3502 (11 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1720116
COUNTRY OF REFERENCE: Congo, Democratic Republic of
MEMBER:Nora Lamont
DATE:11 August 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa. The Tribunal refers the matter to the Minister for Ministerial intervention and requests a more favourable decision be substituted.
Statement made on 11 August 2021 at 12:46pm
CATCHWORDS
REFUGEE – protection visa – Congo, Democratic Republic of – political opinion – member of Union Pour la Democratie et le Progres Social (UDPS) – arrest and persecution – disappearance of husband and children – use of aliases – credibility issues – Australian citizen children – father incarcerated – best interest of children – referred for ministerial intervention – decision under review affirmedLEGISLATION
Administrative Appeals Tribunal Act 1975, s 18B
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 18 August 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Congo, Democratic Republic, applied for the visas on 9 August 2016.
On 21 May 2021 the Tribunal received the following from the applicant and her Representative.
PRESIDENT’S DIRECTION UNDER ITEM 16 – REFERRAL TO THE MINISTER the Applicant has advised that she does not wish to refute the decision made by the Department of Home Affairs to refuse the grant of a Protection (Class XA) visa application. The Applicant seeks to draw the Tribunal’s attention to the President’s Direction under section 18B of the Administrative Appeals Tribunal Act 1975, particularly item 16.6, which reads – 16.6 - In cases where an applicant concedes they do not meet the criteria for a visa and indicates that the purpose of the application is to seek referral to the Minister, the applicant should be asked whether they consent to the matter being determined on the papers in light of any written evidence or submissions the applicant wishes to make. The member will then assess the available material in deciding whether to refer a matter to the Minister.
The Applicant instructs that she understands that she does not meet the criteria to be granted an Onshore Protection (Class XA) visa and accepts the decision made by the Department of Home Affairs. In light of the new evidence obtained with respect to her two Australian-born children, the Applicant seeks to have the matter referred directly by the Tribunal to the Minister of Immigration, Migrant Services and Multicultural Affairs (hereby referred to as ‘the Minister’ or ‘the Minister of Immigration’) and request that a more favourable decision is substituted.
The Tribunal agreed to refer the matter directly to the Minister. Please see Ministerial Intervention below.
SECONDARY APPLICANTS
The Tribunal received DNA evidence and documentation showing that the secondary applicants the applicants children [Child 1] and [Child 2] are Australian citizens as their father is an Australian citizen. Therefore, the Tribunal has removed the secondary applicants from the decision and addresses their matters in the Ministerial Intervention section.
Ministerial Intervention
The applicant concedes that she does not meet the criteria for a Protection Visa and the Tribunal has affirmed the decision of the Department. The applicant asked the Tribunal to seek Ministerial Intervention on her behalf and the Tribunal having read the submissions provided on behalf of the applicant considers that this referral to the Minister is appropriate in this case.
The applicant is a single mother who has two (twin) Australian citizen children. The father of the children is not in their lives and is currently (or was at the beginning of this case) incarcerated. The father of the children has had no interactions with the children or their mother and is not considered to be any part of their lives. Therefore, the applicant is a single mother to two Australian citizen children who depend on her care. The children as Australian citizens would suffer greatly should their mother be removed from Australia as they depend on her as their sole provider and carer. With the father having no relationship with the children they could effectively become orphans.
It is in the best interest of the children that they remain with their mother in Australia and that they should not be moved to live with their mother in the DRC should she be removed from Australia.
The applicant suffers from depression and anxiety. In a letter from [a] Psychiatrist she describes the applicant as having chronic post-traumatic stress disorder and secondary depression. The Tribunal is aware that the mental health facilities in the DRC are inadequate and the applicant would be left to deal with her mental health issues whilst being separated from her children.
The Democratic Republic of Congo (DRC) was once renowned in Africa for its network of clinics, quality of physicians, and primary health care system. In the past three decades, the political and economic collapse of the country had a dramatic impact on this system. Hospitals and clinics lack personnel and equipment, and often run out of critical medicine and supplies. An estimated 70 percent of Congolese have little or no access to health care.[1]
[1] >
The Tribunal was given the following letters of support for the applicant and Ministerial Intervention:
• Letter of Support from [the] Founder and Execute Director of [Organisation 1]
• Letter of Support from [name deleted], volunteer at [Organisation 1] • Letter of Support from [name deleted], volunteer at [Organisation 1]
• Letter of Support from [name deleted], Children Services Business Partner at [Childcare Centre 1]
• Letter of Support from [name deleted], Campus Director at [Childcare Centre 1]
• Letter of Support from [name deleted], Execute Director and Chair of [Organisation 1]
• Letter of Support from [name deleted], Centre Director of [Centre 1] • School enrolment confirmation
The Tribunal has looked at the Ministerial Guidelines [2] and notes:
“Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident”.
[2] >
The applicant has integrated into Australian society and has a wide range of resources available to her in regard to not only her own health and mental well-being but for her children who are citizens. She has learnt English, contributed to society in many ways and been successful in raising her children as a single parent. No doubt, the number of support letters given are a testament to the applicant’s newfound life here in Australia.
The Tribunal is of the view that given the applicants children are Australian citizens dependent on her care there are strong compassionate circumstances that underpin this application. Therefore, the Tribunal refers the application to the Minister seeking a more favourable decision is made in the interest of the Australian citizen minor children.
Criteria for a protection visa
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, he or she 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.
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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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
Applicants
[Applicant name] (F) – D.O.B: [deleted] ([age] years old). The applicant claims to be a Congolese female born in Kinshasa, Democratic Republic of Congo (DRC) but travelled to [Country 1], [Country 2] and [Country 3] seeking protection before arriving in Australia. She identifies as being a Christian Catholic. She claims to speak, read and write in the French and Lingala languages.
Her family consists of her father, mother[and siblings] who currently reside in DRC, as well as her two children (applicants 2 and 3) who were born in Australia. She lists her previous employment as consisting of home duties and being a student. She completed up to tertiary level studies in DRC.
Identity concerns
In her application, the applicant stated she had not been known by any other names. However, Departmental records show she arrived in Australia as an imposter using an Australian passport in the name of [Name 1] (DOB [deleted]).
The delegate noted that the Department has information that the applicant attempted to travel to Australia from [Country 3] [in] November 2015 using an Australian passport in the name of [Name 2] (DOB [deleted]). However, she was detained at the boarding gate and not allowed to board the plane. When questioned, she gave her name as [Name 3](DOB [deleted]). The Department also has information that the applicant was employed in 2015 under the name [Name 3] (DOB [different date]).
The applicant did not produce any original identity documents. Attached to her application was a certified copy of an electoral card from the Democratic Republic of Congo in the name of [applicant name] (DOB [different date]). At interview, the applicant stated her true identity was [applicant name] (DOB [different date]). Given this was the name also listed on her daughter’s Victorian Birth Certificates, the delegate accepted this was the applicant’s identity.
[Child 2] (F) – D.O.B: [deleted] ([age] years old) – No identity concerns. The applicant was born in Australia. She has been granted Australian citizenship and is no longer eligible to seek review.
[Child 1] (F) – D.O.B: [deleted] ([age] years old) – No identity concerns. The applicant was born in Australia. She has been granted Australia citizenship and is no longer eligible to seek review.
Migration History
Date Event [[April] 2016 Applicant 1 arrived in Australia as an imposter using an Australian passport in the name of [Name 1] 9 August 2016 Applicant 1 applied for an XA-866 Permanent Protection visa [date] Applicants 2 and 3 born in Australia Summary of Decision Record
At interview, the applicant hesitated before answering some questions and was unable to answer others. For example, she could not remember the dates of birth of her husband and three children in DRC. She said that, very often, her mind went completely blank. The delegate had concerns about the applicant’s credibility for the following reasons:
Political Opinion
In her written application, the applicant said she joined the Union Pour la Democratie et le Progres Social (UDPS). She said she became a group leader in 2015 and she planned meetings and demonstrations. When asked about the political situation in DRC, the applicant said that the current president didn’t want to bring new elections or give any opportunity for his mandate to be ended.
The applicant didn’t know how many seats UDPS won in the 2011 elections and she was vague when asked about UDPS’s political stance and support base, saying that UDPS wanted to change a lot of things about DRC that didn’t work properly. The applicant could not name the current leader of the UDPS, although she correctly identified the former leader as Etienne Tshisekedi. The delegate considered this to be significant as the UDPS had been led by Etienne Tshisekedi’s son, Felix Tshisekedi, since the former was hospitalised in August 2014. If the applicant was an active member of the UDPS until March 2015, it is reasonable to expect she would have known who was leading her party at that time. The applicant also did not know that Etienne Tshisekedi had died in February 2017, although the delegate accepted, she may have been pre-occupied with her newborn twins.
The applicant did not demonstrate a detailed knowledge of the UDPS and the delegate found that she was not an active party member and group leader who organised meetings and demonstrations at her university in 2015.
Prison Van
At interview, the applicant was asked how long the prison van took to travel from the court to the prison and she said about 10-15 minutes. She was then asked about her statement, which said that police put her in the back of the van and told her that ‘even if they wanted to kill me, it was not easy in the middle of the day in the middle of the city’. However, her statement also said it was dark when she was pushed out of the van.
The applicant’s explanation was that there were often traffic jams and during the peak periods at morning and night it took a long time to travel any distance. The delegate found it implausible that a 10-15-minute journey in the middle of the day could stretch into the evening and did not accept the applicant’s evidence in relation to this.
Jewellery
In the applicant’s statement, she stated that a police officer at the prison asked her to give him all of her jewellery, but she ‘begged him to let me keep it, and I said that if he did this, I would give him one of my rings. He allowed me to do this and I made a small hole in the belt of my underwear and hid the rest of my jewelry.’ At interview, she stated that when the police officer saw all her jewellery he wanted her to give it all to him, but she struck a bargain with him that he could have a couple of items if she could keep the rest. When the delegate asked when the police officer would agree with this, she sated that he agreed to keep just one piece and she kept the rest.
The delegate found it implausible that the applicant would be in the position to bargain with the police officer, and instead believed that a corrupt police officer would have taken all her jewellery, and did not accept her evidence in this area.
Activities in 2015
In her written application, the applicant stated that she was imprisoned in March 2015 and released in November 2015. She confirmed those dates in an identity interview on 20 October 2016 and her PV interview on 3 August 2017.
The delegate had concerns about these dates because:
·The Department located a Facebook account in the name of [Name 3]. A number of profile pictures of the applicant were uploaded to that account between March 2015 and September 2015. When asked about this at interview, the applicant stated that she previously had a Facebook account in the name of [Name 3] and the photos were of her, but said she did not know how to use the account properly and she didn’t know if someone else could get into it. She could not explain how her profile pictures were updated in 2015 because she was in prison at that time.
·At interview, the applicant said she did not arrive in [Country 3] until December 2015 or January 2016. Departmental records show the applicant attempted to board a plane to Australia from [Country 3] [in] November 2015. When asked about this at interview, the applicant confirmed she had attempted to travel to Australia but was unsuccessful and questioned at the airport. She said she could not remember when this occurred, but she was with [Mr A], and denied giving her name as [Name 3].
·The Department received information which indicated that the applicant was employed by a [workplace] in Kinshasa, DRC, in 2015. When questioned at interview, the applicant denied this stating that a lot of people had the same name in DRC even if they were not from the same family. When she was asked about her brother being listed as the emergency contact in the personnel form provided by the [workplace], she said she could not explain this.
The delegate did not accept the applicant’s claims that she was imprisoned at [a] prison from March to November 2015 and did not find the applicant to be credible. The delegate found that the applicant was not imprisoned in DRC in 2015 because of her political beliefs.
Findings
The applicant does not have a right to enter of reside in any other country than the Democratic Republic of Congo. S36(3) does not apply to the applicant.
The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(a).
The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa).
Claims for Protection from Decision Record
·She married [Mr B] in a cultural marriage in 2004 and they subsequently had three children
·[Mr B] was interested in politics. His father was a political activist who was killed when [Mr B] was young.
·In 2011, the applicant started going to public meetings arranged by the Union Pour la Democratie et le Progres Social (UDPS). In 2015, she became a group leader.
·One day in 2015, the applicant’s husband and children disappeared. A neighbour said that police had visited the house and spoken to [Mr B].
·The following day, the applicant was arrested and imprisoned. She was detained for eight months and was raped and starved because she was a political prisoner.
·In November 2015, she was being transported from the court to the prison when the van slowed down and she was pushed out. She was told someone had paid to have her released,
·She made her way to [Country 1], where she was befriended by a man called [Mr A]. They travelled to [Country 2] then [Country 3] and lived together for three months. During that time, [Mr A] raped her and kept her locked in the house. However, he was also kind to her so long as she did not resist him.
·[Mr A] sent the applicant to Australia to work in one of his modelling agencies. She travelled on a passport provided by [Mr A]. When the applicant arrived in Australia, she was offered work in a brothel and realised she had been trafficked.
·If she returns to Democratic Republic of Condo, she will be killed.
Form 866C
I am seeking protection in Australia so that I do not have to return to
THE DEMOCRATIC REPUBLIC OF CONGOWhy did you leave that country(s)?
I FLED BECAUSE I HAD ESCAPED FROM PRISON AFTER BEING HELD THERE WITHOUT CHARGE BECAUSE OF MY POLITICAL ACTIVISM AT UNIVERSITY. PLEASE SEE ATTACHED STATEMENT.What do you think will happen to you if you return to that country(s)?
I WILL BE ARRESTED, HURT AND LIKELY KILLED. PLEASE SEE ATTACHED STATEMENT.
Did you experience harm in that country(s)?
Yes
I WAS ARRESTED BY THE POLICE IN THE DRC. I WAS HELD WITHOUT ACCESS TO A LAWYER. I DO NOT KNOW WHETHER I WAS PROPERLY CHARGED OR WHETHER I HAVE A CRIMINAL RECORD. I FEAR WHAT WILL HAPPEN TO ME IF I RETURN. PLEASE SEE ATTACHED STATEMENT.Did you seek help within the country(s) after the harm?
No
IT WAS THE GOVERNMENT OFFICIALS THAT HAD ORDERED BY ARREST AND DETENTION. PLEASE SEE ATTACHED STATEMENT.Did you move, or try to move, to another part of that country(s) to seek safety?
No
I HAD ESCAPED FROM PIRSON. PLEASE SEE ATTACHED STATEMENT.Do you think you will be harmed or mistreated if you return to that country(s)?
Yes
YES, I WILL BE HARMED BECAUSE OF MY POLITICAL OPINION AND MY ACTIVISM. PLEASE SEE ATTACHED STATEMENT.Do you think the authorities of that country(s) can and will protect you if you go back?
No
NO. IT WAS THE GOVERNMENT OFFICIALS THAT HAD ORDERED BY ARREST AND DETENTION. PLEASE SEE ATTACHED STATEMENT.Do you think you would be able to relocate within that country(s)?
No
GIVEN THAT IT WAS GOVERNMENT OFFICIALS THAT HAD ORDERED MY ARREST AND DETENTION, I DO NOT FEEL ABLE TO RETURN TO THE DRC. PLEASE SEE ATTACHED STATEMENT.Statutory Declaration – 11/07/2016
·I arrived in Australia [in] April 2016.
·I was trafficked into Australia. I had no idea that I had been trafficked until I came to Melbourne.
·I will now explain how I came to be in Australia.
·I was born in Kinshasa, Democratic Republic of Congo (DRC).
·My parents were not interested at all in politics at all. As a result, I had no political ideas and concepts of political life.
·I became politically aware through my husband, [Mr B], because he was so aware of political ideas. We never had a religious or civil marriage, because we could not afford it. But in the eyes of my family and our community, we were married and that was what was important.
·[Mr B] was interested in politics and very politically aware. He had studied and had a degree in political sciences but was not employed in this area. I would say to him, “why are you so interested in politics when there is nothing to eat?” He told me that politics was the most important thing and his father had died in his fight for human rights.
·[Mr B] told me that his father was an activist in DRC and that he was killed because of his activism.
·[Mr B]’s father died when [Mr B] was young. But [Mr B] refused to even say his father’s name, or to talk about his father’s story. He would get troubled and upset when any conversation started about his father.
·My own interest in politics started through my relationship with [Mr B].
·When he would come home, he would insist on just watching the news.
·He worked [but] also sold political [newspapers] . He would loudly proclaim what was going on in Parliament, denouncing politicians.
·He was arrested quite a few time, sometimes detained for a few days, sometimes for weeks.
·[Mr B] inspired me. His passion for human rights and democracy were amazing. Politics became a part of my life as well. I became passionate about human rights in DRC.
·[Mr B] was a member of the Parti Lumumbiste Unifie or PALU. He was a great admirer of Antoine Gizenga until the 2011 elections, when Antoine Gizenga formed a coalition with Joseph Kaliba. [Mr B] was disgusted with the naivety of Antoine Gizenga.
·Around 2011, I started going to the public meetings arranged by Union Pour la Democratie et le Proges Social (UDPS). I didn’t follow the same party as [Mr B] because I really liked the leader of the UDPS at that time, Etienne Tshisekedi. I like him because he spoke about the things that were wrong with our country and spoke of his vision for change. He inspired me and I decided to find out more about the UDPS myself.
·In 2011, there were presidential elections and Etienne Tshisekedi should have been President, but the election was rigged. Joseph Kaliba became President and Etienne Tshisekedi was put under house arrest after the elections.
·I went to a few public meetings and demonstrations before and after the elections. Sometimes, the police would show up and fire their guns into the air. Sometimes they would fire tear gas into the crowd. All of this was to disperse the crowds.
·I was so upset and angry about the elections results of the elections. I joined UDPS. I got my formal confirmation of this after the elections.
·I went to university in [year]. I was studying for an undergraduate [degree].
·All my three children were in primary school, so I had a little bit of time and I wanted to go to study.
·When I went to university, I got involved with other students who were members of the in the student branch of the UDPS at the university.
·In early 2015, Kabila wanted to change the Constitution to continue his presidency without having to go to an election.
·This was so outrageous to me! This went against our rights, our freedoms and our Constitution.
·I became more active in the UDPS and was one of the leaders in my group. I was not a passive member of the group.
·We started planning some meetings and demonstrations. We were handing out pamphlets encouraging other students to join the demonstrations. I was involved in the actual planning of the demonstrations.
·During the last UDPS meeting that I went to, we noticed some people that we had not seen at the meetings. We thought maybe they were new members, but we found out that they were supports of Kaliba. I am pretty sure that they informed the authorities about or organisation, and this led to our arrest.
·When I got back from university, [Mr B] and our three children were not home. The children’s clothes were a bit messed up, but there was nothing else amiss. A neighbour told me that the police had visited my house at about 5 or 6 pm and that my husband had spoken to them.
·My neighbour couldn’t tell me anything else.
·There was no note or anything from [Mr B] to say what had happened.
·I tried to call [Mr B]. There was no answer. I had thought that either his phone wasn’t charged or her had turned it off.
·I called [Mr B]’s business partner. He said that he had not heard from [Mr B] since they finished work. He had not seen the children. There was no question of calling the police. My neighbour had already told me that the police had come and questioned [Mr B]. The police were the ones that would carry out politically motivated arrests. I could not seek their help. Even if I was not mistrusting of police, in they never got involved in these issues, or if they did, it was only if they were bribed.
·At about 10pm, a friend called me and said that some of our UDPS members had been arrested. I was shocked. I said “…but what did we do to be arrested?” I could not believe that this could be the reaction to our meetings by the authorities.
·[Mr B] still had not contacted me. I was incredibly agitated. It was late, but my plan was to wait till morning and go to [Mr B]’s sister and see whether she knew anything.
·At around 5 am the next day, there was knocking on the front door. I checked and saw there were police at the front door. I quickly got dressed.
·I remember that I looked up on the wall and saw that it was 5 am.
·I asked what they wanted. They said, “you will find out when we got to the stations”.
·I was very afraid. I was put into a jeep. I asked them if they had a warrant for my arrest. Two of the police started hitting me with batons. When I arrived, I was put into a cell. It was dark and filthy. There were many people in there.
·I was told that I had been arrested because they knew that I was against Kabila and that the country as his. They told me that they knew I had been involved in meetings to organize demonstrations to protest about Kabila’s constitutional reforms.
·At the police station, a police officer asked me to give him all my jewellery. I begged him to let me keep it, and I said that if he did this, I would give him one of my rings.
·He allowed me to do this, and I made a small hole in belt of my underwear and hid the rest of my jewellery. They kept me for two days in the cells. No one came to talk to me. I was not given any food. Sometimes the police gave me water.
·I was then taken to a prison. They removed my belt. They did a very superficial search to see if I was carrying weapons, but they did not search closely for anything else, so my jewellery remained hidden. In DRC, prisoners can keep their clothes, but we have to wear a prison overall. There was no charge, no appearance in a court before a judge. I had no money for a lawyer. Nothing. I was just taken to prison.
·I was not permitted to call anyone. When I was taken to prison, there were many women in the same cell. There were toilets but they were filthy. They were never cleaned. If we were thirst, we would have to ask, and a guard would accompany us to a tap where we could drink.
·There was a toilet in the cell, but it blocked every day. It would overflow. Every morning, we all had to get a bucket and scoop out the contents of the blocked toilet and take this bucket to a hole that the guards had dug to empty it.
·When I had to empty the toilet bucket, sometimes I vomited. Sometimes I was weak and sick because I was not given enough food to eat. They guards beat me and raped me if I said anything, or showed any emotion or disgust at emptying the bucket.
·The guards would come every day and chose women to rape.
·The guards would come in and choose a woman. Sometimes they would drag a woman outside, sometimes they would rape her in front of all the other cell mates. Sometimes there was only one guard; sometimes more than one guard. They never used a condom.
·I was raped like this as well. Many times. Sometimes there was more than one person who would rape me. I learnt not to resist. I had to survive. It was the only way.
·Every week or so, religious groups would visit. They would give us soap, hygiene products, food, because nothing was given in prison. We were totally dependent on what the religious groups would give us.
·Because I was in there for political reason, I was treated worse than all the other prisoners, who were there for crimes or for other reasons. For example, the non-political prisoners had access to more visitors; they were allowed to make telephone calls. They had access to basic food and water.
·I and other people who were political prisoners, had nothing. When we lined up for food, the guards did not allow us to have any food.
·The religious visitors kept us alive.
·I did not even have any space to sleep. In the prison, people who had family that could pay where given a specific space to sleep, or even a mattress. I had nothing. I had to sleep sitting down.I never found out whether my husband and children ever went back home. To this day, I do not know.
·Three times I was taken from the prison to court. The first time I went to court was when I had been in prison for about five or six months.
·I had to wait for hours until the Judge addressed me directly.
·The Judge told me that I had been imprisoned because I was influencing the youth and young students against the President. He suggested to me that maybe I had political leaders that pushed me to act this way. I told him that we were not children. We were organizing meetings at the university.
·I was desperate though, after such a long time and such brutal treatment in prison, and I told the judge that the meetings were not about Kabila, just so I had a chance to be released. But it made no difference. The judge then turned to the police officers who told the Judge that I was lying, and that the meetings I was I involved in were against Kabila.
·The judge dismissed me and said he would see met at the next court session.
·One month later I was again taken to court. It was the same judge.
·He repeated to me that perhaps I had been influenced and that perhaps I now wanted to tell him who else was involved. He told me that if I did not tell him or the police who was responsible, that I may die instead of this person, or these people.
·I refused to give in. I knew that even if I had given a name, they would kill me anyway.
·Again, the police officers would speak, and the judge listened to them.
·I complained about the conditions in prison. I said that I wanted bail.
·Again, the judge said he had to think about this and dismissed me and sent me back to prison. I cannot remember when the third time was that I was taken to court.
·It was the same judge.
·He again pushed me to accept the version given by police. He again asked me to give a name. I repeated there was no one that influenced me. I told him again about what I was going through in prison. I told him that I had been raped. I told him I wanted to see a doctor.
·I asked about bail application. He said I could have bail, but I had to pay surety.
·I didn’t say anything. There was no point. I knew I had no money. I couldn’t contact my family. I just stayed quiet. Again, the judge dismissed me and said that he would see me at the next court hearing.
·After this court session, the police put me into a different section of the van that was supposed to take me back to the prison. Usually, they put prisoners in the middle of the van, but this time, the police officer pulled me towards the back of the van, which really terrified me. I resisted. I thought that this was the time they would take me away to kill me. One of the police officers yelled at me, saying that even if they wanted to kill me, it was not easy in the middle of the day in the middle of the city. He told me just to sit quietly and not to be silly. He appeared to be nervous.
·There were two other prisoners (a woman and a man) put into the back with me and with two police officers. We were sitting in the back of the van while the two police were standing. There were little windows, just enough to let some air in. There was no glass in these windows. The police were armed, and they had the tip or the front of their guns pointing outside the windows. Suddenly, the van slowed down. One of the policemen told me that someone had paid to get me released. I am not sure whether this was just me or the other two prisoners. The policeman also said that once we had been released, that we should get away from DRC. He said if we came back or we were caught, we would be killed.
·A policeman opened the door the door and literally kicked the three of us out of the van, while the van was still slowly moving. We fell on the road. It was dark by this time. There were many cars on the road. The police shut the door again and the van moved on. I went to the side of the road. I took off the prisoner overalls and was left with normal clothes underneath. I didn’t even speak to the other prisoners. We all went in different directions.
·After a little bit of time, I could work out where I was in Kinshasa. I knew that I was at [a particular location]. I walked to a bus stop.
·I was planning to find a friend, [Mr C], that I knew. We had grown up together in the same neighbourhood, and he had moved away from my old neighbourhood when he was married, However, we still had kept a connection. In fact, in the past, when he was newly married and before all the problems, he had come to collect me to show me his new home with his new wife.
·I did not go to my home or to father’s home (my mother had passed away by then), or any of my siblings, because I was thought that these would be the first places the authorities would look for me, even though the two police man in the van had let me go. I had thought that the police in the van who let me go would have to give some story to the prison as to why I was missing, and that someone would come to get me. I could not risk putting any of my family at risk. I had to think of someone and somewhere that the authorities would not know to come to look for me.
·That is why I thought of [Mr C] and I remembered the address of his home.
·I didn’t pay for the bus. I asked the conductor to help me, that I had no money and to just let me take a bus trip without paying. I got to [Mr C]’s home and he was not home, but his wife was.
·It was about 8.00 or 8.30 in the evening. [Mr C]’s wife invited me inside.
·I didn’t know her, so I could not tell her what had happened. I could not take the risk that she would inform the authorities that I had escaped.
·We talked and I pretended I was fine. I think she could sense my distress, even though I was under control. But our relationship and our custom did not allow her to question me further. It would have been very rude.
·After a while I asked where [Mr C] was and [Mr C]’s wife called him and told him that I was at the house.
·[Mr C]’s wife gave me a space to wash up while I waited for [Mr C].
·After this, I asked to use [Mr C]’s wife’s mobile phone to call [Mr B]. It went straight to a voice message saying the phone I was trying to call was not able to be connected. I erased the phone number from her phone. I was so scared and so cautious after everything I had been through.
·When he arrived, [Mr C] had said that I looked different and that I had lost a lot of weight. I said I had been sick.
·We had some food.
·During the meal, [Mr C]’s wife asked why I had not called or come around. She asked [Mr C] why he had not contacted me, and he said that he has tried, but I had not answered my phone.
·[Mr C] did not ask anymore, because it would have been impolite according to our culture to do so.
·I asked to speak privately with [Mr C] after finishing our meal.
·I told him that I had been in jail for a while, and that I had been released illegally.
·[Mr C] said that he had no idea that I had been in prison. He asked why, but I did not go into too many details. I told him that there had been a huge misunderstanding at university, and I had been arrested. He accepted this, saying that this is what happens in our country, that things said are twisted and people get into trouble so easily.
·I told him I needed to leave Kinshasha for a while and get to Bandudu.
·I had already thought of getting to Bandudu because then I could take a boat to Ilebo, and then a train from Ilebo to Lubumbashi, and from there cross the border into [Country 1], where I knew that an old friend of my father lived. I thought that I would be safe there and I could then take steps to find [Mr B] and my children.
·But I did not tell [Mr C] this, only that I needed to get to Bandudu.
·I could not take the chance to tell [Mr C] my plans to cross the border. It was too dangerous, and I could not take the chance of telling him too much.
·[Mr C] said there was a bus leaving every evening for Bandudu, but that I had missed it for that evening.
·[Mr C] encouraged me to stay over, which I was OK with this.
·I asked [Mr C] whether he could go to my house and see whether [Mr B] had left already. It was understood that I could not go myself, since I told him that I had been released illegally.
·About 6am, [Mr C] went to see if [Mr B] was there. I told him that if [Mr B] was there, to tell him to get he children and all come to [Mr C]’s place.
·When he returned, he said he had knocked on the door, but there was no answer. He went to a small cabin on the same property to where we lived. The man who lived in this cabin told him that no one had lived in the house for a long time, and they knew that the wife had been arrested. He said he had not seen the husband or children for a long time, and that the landlord had told him that he was waiting for either the husband or the wife to reappear, but that if they did not, he would eventually put their possessions in storage in a room of the house, and rent the house out again.
·I was so worried. But I did not show anything.
·I told [Mr C], maybe they are already in Bandundu.
·I gave [Mr C] my jewellery. I just kept 2 rings. I asked him to sell this for me. I got US$600 from this.
·I asked [Mr C] to change US$100 to current money and asked him to buy the bus ticket to Bandudu. I asked him to buy me some clothes and a bag for me. I made him keep the rest of that US$100 that I had changed, equivalent to about US$50, as thanks for his help. With this, I was able to board a bus that evening to Bandudu, and to fund the rest of my journey to the border.
·I took the bus to Bandudu, then a boat to Ilebo, and then a train from Ilebo to Lubumbashi, and from there I took a bus to the [Country 1] border.
·I got off the bus before the border. At the checkpoint, there was a special line for traders that crossed the border by foot to trade. You just need to buy a daily pass. buy a daily pass without being asked for a passport.
·When I got to the [Country 1]n side of the border, I took a taxi to the bus terminal to try to get a bus to [Country 2]. I spent 2 days at the bus station. I was trying to figure out which bus to take.
·On the second day, a man came up to me, but spoke in English. I cannot speak English, except for a few words, so I turned away from him. I did not know what he was saying.
·I managed to order cake and water at a kiosk and sat down to have them.
·The man came up to me again and spoke to me. I was really uncomfortable and wanted to leave, so I asked the kiosk people for my bill.
·The man heard I said a few words in French, and he approached me again and said that he spoke some French.
·He asked me in French what my name was, and I told him.
·He told me his name was [Mr A]. I call him [Mr A].
·I did fell uncomfortable, whilst he spoke in English. Once I heard him speak in French, I was relieved.
·He asked if I would have a cake while we chatted, and I said yes.
·I was still hungry, so I was pleased to accept.
·[Mr A] asked where I was going, and I said to [Country 2]. I asked him which bus I needed to take to get to [Country 2].
·He told me that I could get on a bus to [Country 2] that goes through to [Country 3], where he was going.
·He took me to the ticket office and showed me where to buy the ticket, and I did.
·He got on the same bus as me and sat in a seat close by.
·[Mr A] asked me a lot of questions.
·I told him that there had been issues at home, and that I could not stay. I told him that if I went back, I would be killed.
·He asked me what I done to have people want to kill me. I told him that I had been caught at university organizing a protest against the current leader in the DRC, and that I was sent to prison for this.
·[Mr A] said that at least now I had done my prison time, I could continue my life in peace, but I told him that was not possible. I told him that I had left prison without permission.
·[Mr A] said that in [Country 2], people spoke English and he said he was worried about how I would get to where I wanted to go.
·He said that he would help me get to my father’s friend’s house in [Country 2] if I showed him the address.
·I was so desperate, and he was kind and patient, so I agreed. To be honest, at that stage I was relieved and grateful to have someone to help me.
·When we arrived in [Country 2], we both got off the bus and went to the address.
·I knocked on the door and a man answered. I asked for my father’s friend and the man said that he used to live at this house, but that he passed away 2 years ago.
·I just started to cry. I fell to the ground. I had no idea of what I could do next. All my focus had been on getting to my father’s friend’s house. I had made no plans after this, and all the horror and despair crashed on me.
·[Mr A] comforted me and told me to stop crying. He said that he wouldn’t leave me there, all alone.
·I cried and said, “how can I find my husband and children?”
·When I had stopped crying, [Mr A] suggested that I come with him to South Afirca.
·At this point I really thought that I would die in [Country 2].
·I could not think. I had just come out of prison where I had been raped multiple times; I did not know where my children or husband were; the place I thought I could find safety did not exist anymore.
·I agreed to go with him to [Country 3].
·When we got to Pretoria, he said I could stay with him for a few days until I figured out what to do.
·When we got to his flat, there was only one bedroom.
·I told him I would sleep on the floor, but he told me not to be silly and he wouldn’t hurt me.
·I slept in the same bed as [Mr A].
·He started to touch me, but initially stopped when I said no., I was uncomfortable. He persisted. I said “why did you bring me here? Was I t so you could have sex with me?” He said no, but that I was pretty, and he had fallen in love with me.
·After a few days, he got angry with me for resisting his sexual advances. He was shouting at me. He tore my clothes off. He raped me. I did not resist. I was paralysed. I had nothing. No one.
·I had learnt in prison that if I did not struggle, it would be over soon and that I would not be hurt.
·My mind went back to this place of survival. I did not resist.
·I did not go to the police. It was not something that was a potential source of safety for me, given my experiences with the police in the DRC. And in any case, I did not know where to evens start looking for safety or in which direction to go.
·[Mr A] had told me that it was not safe in [Country 3], especially for Congolese women. He said that if I was caught by the [Country 3]n authorities, I would be deported to the DRC. He told me that he would look after me.
·I any case, I could not even leave the flat. Every time [Mr A] left the flat, he would lock the door. He had told me that this was for my safety because I had no documents. He told me that I was in great danger.
·[Mr A] was kind to me. He was kind as long as I did not resist him. He told me that I was beautiful, and that he could not resist me. He was giving me compliments all the time.
·He told me that he knew about beautiful women, because he worked for a company in Australia that provided jobs to girls. He told me that I was extraordinary, and that he could make me a star.
·He asked if I would like to work in one of his Australian companies.
·He told me that he ran agencies for modelling. Basically, he had women in his agency that modelled clothes. This existed in the DRC, so I thought it was plausible.
·He told me that he would employ me in his modelling agencies in Australia.
·I said “how could this be? I have no money or papers”. He told me not worry and that he would organize my trip and my visa, even a passport that I could travel on. He told me that he knew people and that no one would even question me.
·There was nothing I could do. I was locked in the flat. And I was terrified of what he told me would happen to me if I stayed in [Country 3], not just by the existing Congolese people there, but what would happen if I was caught by the [Country 3]n authorities. This meant death for me either way.
·I was desperate. I thought that when I got to Australia, I could be safe. It was all I could think about.
·My mind had gone to a place of survival. I was just focus on getting to safety.
·After this, [Mr A] was so kind to me. He spoke to me gently. He looked after me. He brought me clothes and shoes. There was always good food. He brought me a necklace once. I had it with me until it was stolen here in Australia.
·He told me he was Australian, and that he had to travel for his work.
·He was very busy with his work. He had two telephone and would speak often to his work people in English.
·He was kind and gentle to me. When I would cry for my family, he would comfort me, and say that maybe they are alive or maybe they are dead. He said I should pray and maybe I would see them again one day.
·[Mr A] told me that the most important thing was to get me to a safe place. It seemed to met that he really was looking after me.
·He said that he had travelled to the Congo for his job and that he knew how it was there. He told me that once we got to Australia, when he went back to the Congo for his work, he promised me that he would try to find my family.
·I was relieved and comforted. I believed him.
·I felt safe with [Mr A] at that time. I felt that God had sent [Mr A] to me to assist me.
·I was fond of him. I cared about him.
·One day, [Mr A] took me to the airport. He told me this is where I would be leaving for Australia. He introduced me to his friend. This man could not speak French. [Mr A] translated for me. He said that the man asked whether this was the girl travelling today, and [Mr A] said that this was not the girl. The man said that I looked like the girl that was travelling today.
·[Mr A] told me to stay in a seated place at the airport, as he had some things to talk about with his friend. He and his friend moved a distance away. They could still see me.
·I stayed. I was too scared of being caught by the police.
·[Mr A] came back. He took me back to the flat.
·Then one day in the evening, he told me that everything had been arranged and that I was leaving tomorrow. He told me that he could not come with me, but would after he finished some jobs two weeks later.
·I was scared and worried. I had never travelled by plane alone before. I asked him whether I could stay with him for two more weeks and then we could fly out together.
·He said that everything had been arranged and that I would be fine. He promised that he would be with me in Australian in two weeks.
·He gave me a mobile phone and told me that the manager of his company in Australia would get me a local sim card, and that I should call him then. He gave me his [Country 3] phone number.
·He also gave me some money and the address of this company in Melbourne.
·He told me to take a taxi, as the Manager could not come to collect me when I got to Melbourne, and to show them the address. He told me to tell the people at the address that I had come from [Mr A]. He told me that everything would be fine.
·He gave me a booklet which he told me was a passport, and told me to keep it safe because when he came to Australia, he would need the passport to registered me in his company in Australia. He also gave me photocopy of the passport. I still have this with me.
·He wrote his telephone number and the address I had to go to when I got to Australia on the back of the photocopy of the passport.
·I travelled [in] April 2016.
·I noticed that the passport had another name on it, but [Mr A] said it was alright, and that this was the only way I could be safe.
·I arrived in Sydney and then I took a transit flight to Melbourne.
·When I got to Melbourne and took a taxi. I gave the address to the taxi driver.
·It was evening.
·A man was coming out of the building of the address.
·I introduced myself to the person in the building.
·I told him that I was from [Mr A]. The man said he did not know any [Mr A]. I said it again in case I mispronounced it, but the man repeated that he did not know any [Mr A].
·I was so tired. I got another taxi. I indicated to the cab driver that I had money and I wanted to sleep. He took me to a hostel where I slept in a room with 4 beds in it.
·The next day I went back there, but it was closed. I waited for the whole day and about 4 pm another man arrived. I introduced myself again and again this man said he did not know any [Mr A]. He asked me if I was looking for a job and I said yes. He took me inside I saw naked women inside, and women kissing men. I asked him whether this was the job, and he said what did I think it would be? I said that I would not do this. I took my luggage and caught another taxi to the hostel.
·I stayed at the hostel until I ran out of money.
·I spent 5 days sleeping rough on the street.
·During this time, one of my bags was stolen and I was raped.
·In this attack, the original passport and other documents were in the bag that was stolen. I just managed to keep one bag and the photocopy of the passport was in that bag.
·On the fifth day I approached a woman and asked her if should find me a place to sleep.
·She drove me to the Red Cross and the Red Cross sent me to the Salvation Army. They didn’t have a place either, but they paid for a hotel for me.
·The next morning, the Red Cross sent a taxi which took me to [Organisation 2].
·[Organisation 2] got me accommodation at a hotel and then find me a place to stay with the sisters, where I am now.
·I recently found out that I have fallen pregnant with twins as a result of the rape in Melbourne. I am Catholic. I have to keep the pregnancy.
·My life is not what it was two years ago. It turned into a living hell when I was arrested in 2015.
·I lost my family, my home, my country, my life. I lost hope.
·If I am returned to DRC, I will be killed.
·Please grant me protection.
The Applicant has advised that she does not wish to refute the decision made by the Department of Home Affairs to refuse the grant of a Protection (Class XA) visa application. The Tribunal has however, gone onto make findings on the applicants claims as follows.
The Tribunal accepts that the applicant was born in Kinshasa Democratic Republic of Congo (DRC) and accepts that she was in a relationship yet not married to [Mr B]. Without any evidence to refute it, the Tribunal accepts that she has three children in the DRC and that [Mr B] and her children disappeared.
The Tribunal after reading the Departmental file and attached documents and after listening to the Departmental interview make the following findings:
·The Tribunal finds the applicant was not involved in the Union Pour la Democratie et le Progres Social (UDPS) and that she planned meetings and demonstrations. The applicant did not have much knowledge of the party and the elections and did not demonstrate that she was an active member.
·The Tribunal found that the applicant’s evidence of the prison van and her escape was contradictory in that she said she was taken from prison to court in 15 minutes yet it was during the day, then when she was pushed out of the van it was evening and dark. It is implausible that the trip which tool 15 minutes would last for hours until dark.
·The applicant’s claims that she made an agreement with the prison guard to keep some of her jewellery seems implausible as she was a prisoner and it would have been difficult for her to be bargaining with guards.
·The applicant had a Facebook account under the name [Name 3] and uploaded pictures to the account throughout 2015 which was when she claimed she was in prison. When asked at the interview about this she said she didn’t know how this could happen as she was in prison at the time. In addition, the Department found the applicant was employed at a [workplace] in 2015 which she denied. She stated that there were many people with her name and therefore it was probably someone else. However, the applicant’s brother was listed as a contact on her employee personnel form. The Tribunal does not accept that the applicant was imprisoned in 2015 based on the above evidence before it.
Given the above findings both individually and cumulatively considered the Tribunal does jot accept that the applicant has any genuinely held fears of persecution for any of the claimed nexus reasons outlined in s.5J(1)(a) or any other reason, written or oral, in returning to the applicant’s country of nationality and reference, as the Tribunal does not accept her claims.
Accordingly, the applicant does not have a well-founded fear of persecution if she returns to her country for any reasons mentioned in s.5J(1) as required by s.36(2)(a).
The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the Democratic Republic of Congo (DRC) there is a real risk of significant harm, including that the applicant will suffer harm by way of being arbitrarily deprived of her life; the death penalty will be carried out on her; she will be subjected to torture; she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment as required by s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa. The Tribunal refers the matter to the Minister for Ministerial intervention and requests a more favourable decision be substituted.
Nora Lamont
Member
DOCUMENT LIST: Documents lodged by applicant Folio PV Decision Record and Notification letter Appointment of Rep – MR5 form Pre-hearing submissions:
· Legal Submission
· Letter of Support from [an official] dated 19/5/2021
· Support letter – [name deleted] (Associate Nurse Unit Manager) dated 19/5/2021
· Victorian Birth Certificate of [Child 2] born [date]
· Australian Citizenship certificate of [Child 2] dated [date]/4/2021
· Victorian Birth Certificate of [Child 1] born [date]
· Australian Certificate of [Child 1] dated [date]/4/2021
· Offer of enrolment for [Child 1] and [Child 2] at [a primary school] dated 3/5/2021
· Support letter – [Organisation 1] dated 20/5/2021
· Support letter – [Organisation 1] – [name deleted] dated 18/5/2021
· Support letter –[Early Learning Centre 1] – [name deleted] undated
· Support letter – [Childcare Centre 1] – [name deleted] dated 11/5/2021
· Support letter – [name deleted] dated 15/5/2021
· Support letter – [Childcare Centre 1] – [name deleted] undated
Department documents Folio Form 866B Form 866C Election Card – in the name of [applicant name] [Airline] Ticket – in the name of [Name 1] – flight [April] – Sydney to Melbourne [Airline] Ticket – in the name of [Name 1] – flight [April] – Johannesburg to Sydney Copy of Australian Passport – [Name 1] Statutory Declaration – [applicant name]– 11 July 2016 Victorian Birth Certificate – [Child 2] born [date] Victorian Birth Certificate – [Child 1] born [date] Statutory Declaration – [name deleted] – 9/11/2016 Statutory Declaration – [name deleted] ([Organisation 2]) – 07/11/2016 Email from Rep to DHA – Request for postponement of Interview – 9/11/2016
· Medical letter – [named hospital] (undated)
· Medical letter – [named organization] – 9/11/2016
Letter from Rep to DHA – 9/8/2016
· Form 956
· Form 866
· Certified copy of election card of [applicant name] dated 2 June 2011
· Certified Passport photos
· Copy of statutory declaration of [applicant name] dated 11 July 2016
· Copy of photocopy of passport [the applicant] used to enter Australia
· Photocopy of information written on the back of the passport photocopy
Request to attend Interview - 24/7/2017 Screenshots of Facebook profile belonging to ‘[Name 3]’ Protection Visa Decision Record – 18/8/2017 Notification of Decision – 18/8/2017 Information Report – Detection of Air Smuggling attempt with fraudulently obtained Australian passport [deleted] airport, Johannesburg [November] 2015
· Copy of the Republic of [Country 2] Visa in the named of ‘[Name 2]’
· [Workplace name] – ‘[deleted]’ in the name of ‘[Name 3]’
· Photographs for comparison
· DRC Passport for [Name 2]
· Australia Passport for [Name 2]
· Documents as listed above under Ministerial Intervention
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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