1912584 (Refugee)
[2025] ARTA 750
•12 March 2025
1912584 (Refugee) [2025] ARTA 750 (12 March 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Andrew Rouyanian (MARN: 9359622)
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 1912584
Tribunal:Senior Member J Marquard
Date:12 March 2025
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.
Statement made on 12 March 2025 at 5:04pm
CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – political opinion – member of opposition party – meetings and rallies – threats of violence or arrest from government and supporters – refugee status in another country – political discussions in expat community and public demonstrations – harassed, threatened and robbed – consistent and credible evidence – short return to home country for party reunion – questioned but released, and unhindered departure – country information – new president a member of party, but election disputed and violence and human rights violations continue in all areas – refugee status ceased after unauthorised departure – treaty right to enter and reside in neighbouring countries limited in practice – application of former partner and daughter separated – decision under review remittedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (3), (4)(b), 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2CASES
AVQ15 v MIBP [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
Chen Ru Mei v MIEA (1995) 58 FCR 96
MIAC v Khadgi (2010) 190 FCR 248
MIEA v Wu Shan Liang (1996) 185 CLR 259
MIMAC v SZRHU [2013] FCAFC 91
Mok Gek Bouy v MILGEA (1993) 47 FCR 1
Nejad v MIMA [1999] FCA 1827
Sivalingam v MIMA [1998] FCA 1167
Sundararaj v MIMA [1999] FCA 76
Suntharajah v MIMA [2001] FCA 1391
SZRTC v MIBP (2014) 224 FCR 570
WAGH v MIMIA (2003) 131 FCR 269Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
The applicant is a citizen of the Democratic Republic of Congo (DRC). He has sought review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 7 May 2019 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant first arrived in Australia [in] October 2016 on a FA-600 (Tourist) visa, which was valid until [in] October 2016.
He applied for the protection visa the subject of this review on 11 November 2016. He claims to fear persecution based on political opinion.
He applied for the review along with his former partner and his daughter (now aged [Age]). Their applications for review were dealt with separately when the applicant and his former partner separated, at the request of his former partner.
The Department of Immigration and Multicultural Affairs (the Department), as delegate for the Minister, refused to grant the visa on the basis that there was not a real chance of serious harm or a real risk of significant harm.
The applicant applied for review of the decision with the Administrative Appeals Tribunal (AAT).
On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (the Tribunal).
If a proceeding commenced in the AAT but was not finalised before 14 October 2024, such as this one, it must be continued in the Tribunal in a manner that is efficient and fair. Under the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), applications for review that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The transitional provisions permit the Tribunal to continue and finalise the proceedings commenced under the AAT.
The DRC, located in central western Africa, is a country rich in natural resources, but it has suffered from political instability, lack of infrastructure, colonial exploitation, and war from 1996 to 2003, claiming up to six million lives.[1] Joseph Kabila assumed power in 2001 and held the presidency until 2019, when Felix Tshisekedi took over. President Tshisekedi won a second term in December 2023 in an election called a sham by opposition candidates. His nearest challenger was Moise Katumbe.[2] In January 2025 Rwandan-backed rebels, M23, violently took over key cities in eastern DRC. Thousands have been killed and over 500,000 people displaced.[3]
[1] BBC, ‘DR Congo country profile - BBC News’, < BBC, ‘DR Congo country profile - BBC News’, < ReliefWeb, 26 February 2025, The DRC Conflict Enters a Dangerous New Phase - Democratic Republic of the Congo | ReliefWeb CONSIDERED IN THE REVIEW
The Tribunal has taken into consideration the application for the visa and supporting documents, and new information provided to the Tribunal including submissions.
The applicant appeared before the Tribunal on 20 February 2025 and 4 March 2025 to give evidence and present arguments. The applicant’s representative was present by video.
The Tribunal has referred to the evidence where relevant in the findings and reasons below. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[4]
[4] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
FINDINGS AND REASONS
The Tribunal has determined that the decision under review should be remitted for reconsideration.
The reasons for this are set out below.
Relevant Law
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[5] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[5] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[6] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[7] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[8]
[6] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
[7] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[8] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
·are a refugee (the refugee criterion);[9] or
·qualify for complementary protection (the complementary protection criterion);[10] or
·are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[11]
[9] Section 36(2)(a) of the Act.
[10] Section 36(2)(aa) of the Act.
[11] Sections 36(2)(b) and (c) of the Act.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)), although there are exceptions to this, set out in the provision. Effective protection measures are defined in s 5LA of the Act.
The reason must be the essential and significant reason or one of the reasons for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct (s 5J(4)). Indicative examples of serious harm are set out in s 5J(5) of the Act.
Conduct engaged in by an applicant in Australia must be disregarded unless the applicant satisfies the Tribunal that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee (s 5J(6) of the Act).
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–5LA of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) of the Act refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant said that he is a citizen of DRC and not of any other country. He said that he does not have the right to enter and reside in any other country. He provided a copy of the front page of his DRC passport issued in 2014 and expiring in 2019. In submissions dated 27 February 2025 he said that he had lost the passport and although he had conducted a search, he could not find it.
The Tribunal is satisfied on the basis of the copy of the front page of his passport, as well as his testimony, that the applicant is a national of DRC, and that DRC is the receiving country for the purposes of the legislation.
Personal particulars
The Tribunal accepts the information provided by the applicant about his background and family, which is set out in these paragraphs. This information is not in contention and has been provided consistently.
The applicant stated in his application that he was born in [Year] in Mbuji Mayi, Kasai Oriental in DRC. Kasai Oriental is located in the centre of DRC. His parents, who have both passed away, came from this area. When he was growing up, his father was [an occupation 1] in a company and his mother worked in [work sector].
The applicant lived in Mbuji Mayi until 2000 when he moved to Kimbanseke, where he lived until 2011. Kimbanseke is a district of Kinshasa, the capital, in western DRC.
The applicant has a brother and a sister. He also has stepbrothers and sisters on his father’s side from his father’s previous marriage.
The applicant’s sister lives in Kinshasa, DRC, where she is studying and his brother lives in [Country 1].
His brothers and sisters from his father’s former marriage are living in different towns in DRC.
The applicant has uncles, aunts and cousins in DRC. They mainly live in Mbuji Mayi but some are in Kinshasa.
He had three children with his former partner in DRC.
The applicant went to school in Mbuji Mayi but then his father got a job in Kinshasa, they all moved there in 2000 and he completed his secondary school there.
From 2009 until 2011 he attended [University] studying [Subject]. He worked while he was there, doing student jobs and for [Company]. He was living in a student room at the university.
The applicant’s ethnicity is Baluba. This is one of the biggest ethnic groups in DRC. Many Baluba people come from Kasai Oriental. The applicant speaks [Languages] and Lingala.
From 2011 to 2016 the applicant lived in [City, Country 1]. His three children moved to [Country 1] when he was given refugee status in 2013, but his former partner remained behind in DRC. From 2011 to 2012 he attended language school. From 2012 to 2013 he worked as [an occupation 2]. From 2013 to 2016 he worked in his own [workplace]. He had another two children in [Country 1]. They are being cared for by his brother.
He was asked by the Tribunal why he applied for a visa for Australia. He said that in May or June 2016 he applied for a visa. He had the idea to come in 2015 to visit to see the country.
He came to Australia with a partner and his daughter, but his two other children from the Congolese partner, a son aged [Age] and a daughter aged [Age], stayed behind in [Country 1]. He speaks to them often.
Since the applicant has been in Australia, he has had three children, one boy and two girls with his former partner from [Country 1]. He said that currently he does not see them as much as before as they do not live close to each other.
In Australia he lives with a friend and works as [an occupation 3]. He sees his eldest daughter often.
He told the Tribunal that he is really depressed currently. He said that he is worried about his children in [Country 1], and it is important for him to settle in Australia. He wants his children to have a good education and live a quiet life.
Was the applicant a member of the opposition party, Union pour la démocratie et le progrès social (Union for Democracy and Social Progress (UDPS)), in DRC? Did the applicant leave DRC for political reasons?
The applicant claimed in his application that when he was living in DRC, he was a member of the opposition party, UDPS, which was hated by the then President, Kabila. He claimed that he left DRC for political reasons and was granted refugee status in [Country 1] in 2013. The applicant said at the Tribunal hearing that he did not finish university in Kinshasa as he had to stop studying for political reasons. He first became involved in 2009, but it but it was in 2011 when he had significant impact as the party asked him to help on campus during the campaign.
The Tribunal acknowledges that in light of cross-disciplinary research about refugee assessment[12] that it should take a reasonable approach to credibility assessment. Findings should be made clearly on evidence rather than assumptions, which may be founded in cultural or social bias. The Tribunal is cognisant of the particular complexities in presentation of evidence in asylum cases. The Full Federal Court in Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 referred to these difficulties as follows:
refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.
[12] M Holland, ‘Stories for Asylum: Narrative and Credibility in the United States’ Political Asylum Application’, Refuge: Canada’s Journal on Refugees, 10 December 2018; Hunter Dowd, Liddell, McAdam, Nickerson and Bryant, ‘Filling gaps and verifying facts: Assumptions and credibility assessment in the Australian Refugee Review Tribunal’ (2018) International Journal of Refugee Law, 30(1), 71–103, noting however that the authors acknowledged that the study ‘sets out assumptions in the abstract, rather than in the context of the full decision’ which ‘does not always allow comprehensive reflection of the full logic behind the Tribunal member’s reasoning, nor consideration of the totality of the evidence presented.’
Experiences in an applicant’s home country may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family.
The objective of taking a ‘reasonable approach’ to fact-finding, given the various impacts on presentation of evidence, is supported in numerous judgments.[13] Burchett J stated in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 that it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.
[13] See for example Full Federal Court case in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133.
Taking this reasonable approach to assessment of the evidence, the Tribunal is satisfied that the applicant was a member of UDPS. The applicant’s evidence was coherent, credible and consistent.
At the Tribunal hearing he was able to provide details about the party and his involvement, as well as demonstrating passion for the political issues of the time. The Tribunal has taken into consideration the applicant’s level of knowledge of matters about which the applicant would reasonably be expected to know if his claims were truthful (Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827). The Tribunal had a solid level of knowledge about events in DRC, and provided personal anecdotes which suggested direct experience.
For example, asked what attracted him to UDPS, as opposed to the government party, he said that there were ‘a lot of things’. He said that firstly, it was the democratic values of the party. He said that the President of DRC was a dictator killing people arbitrarily, using poison where needed, and using others to do his dirty work. He said that by contrast the leader of UDPS at the time was a democrat. Secondly, everyone knew that the previous president was killed by Kabila. Thirdly, other countries around DRC wanted to get hold of the resources in DRC, and UDPS wanted to retain them for DRC.
The applicant also referred to having a membership card, and if they went on a mission, they were given a letter. He said that the students held meetings and on weekends the Secretary General came to speak to them, and sometimes they would go to the headquarters as well.
He said that the issues included:
the people from the neighbouring countries had to be integrated in language, culture, business and government We could not talk about the human rights situation or we would be killed. We were fighting to get power back. The country is rich but there are no roads and no school and no food. The population were living in poverty and without food and people cannot think without food. This is why we have fought to eradicate Kabila’s people for so long.
He elaborated as follows:
When I arrived in 2011 it was the electoral campaign. At the time all the different political parties were having mass gatherings to present the ideology to the population. The presidential party and the opposition party came to the university to talk about their ideologies and get members. We were amongst the group leading a big group of students. At the time the presidential party and the opposition party came to us for help to get members and talk about their campaigns and try to convince students. Personally, as a student I was convinced by the opposition party. The opposition party were talking about the issues that were actually happening so I could not resist them. There were a lot of friends in the leadership who started being members of the presidential party. I was the president of the opposition party among the students.
He went on to say that the leadership of the opposition party said that they should spread the voice on campus of the opposition during the elections to get rid of the President.
He told the Tribunal that at the time there were ‘big meetings’ about their country being held, between the Europeans, Americans, Burundi, Rwanda and Uganda. He said that the General Secretary was giving them the message that they should try and elect a new government. He said that there was a plan by the presidential party to take the ore and resources out of the country and therefore they had to fight the elections to keep them in the DRC.
This evidence demonstrated knowledge of the issues, for example, keeping the ownership of minerals in the country, as well as political passion, for example, referring to the country being rich but having no roads, school or food. In the following evidence he also discussed personal issues, such as air conditioning at the university, which motivated him and other students to protest:
they said we should spread information to the students so they can speak to their families and we can try and find solutions. The Secretary General said that most of the state businesses were going to be made private companies for the President at the time, Joseph Kabila. He said it was time to rise or it would be too late. I really felt it because even at the university the conditions in which we were studying were not normal. At the time there were 4000 students and no air-conditioning. We were told that it is a rich country with many minerals, and this made us feel rebellious.
The Tribunal was also persuaded of his involvement given that his family also supported UDPS. When the Tribunal asked the applicant if anyone in his family was interested in politics, he said that his father and his uncles were involved in UDPS. His father was a ‘bit’ active and as he came from a ‘big business’ so he had some influence. Asked if his father suffered any repercussions from being involved in UDPS, he said that there was a suspicion his father was poisoned by politicians. He was told that when he died, his father’s blood vessels ‘had holes in them’. However, they have no proof of this.
The Tribunal is satisfied also that the applicant left DRC because there were threats of arrests or violence from the government following a rally. His evidence about this contained the kind of detail commensurate with direct experience, for example, recalling the room he was given at the university, and conversations he had, as set out in the evidence below. Furthermore, his experience accords with country sources about the 2011 election. Amnesty in 2011 referred to increasing violence and harassment of opposition supporters, including police beating and arresting UDPS supporters at rallies.[14]
[14] Amnesty International, Freedom in the World 2011 - Congo, Democratic Republic of (Kinshasa) | Refworld <>
He said that:
In 2011 it was the beginning of the electoral campaign and we had to organise a few meetings at the university. So we went to organise them and we were warmly welcomed by the leadership committee at the town where the university was, and were given a room there. The next day we were supposed to go to a public place to start the meeting. Students brought more and more people. The patriotism message was spread to them to try and wake this part of the country up (Kasai). We had the authorisation from the university to be in town for the gathering. But the police arrived, and they used real bullets. The police fired and we had to run away. When we fled, we went back to the place we were staying at, not knowing that we were followed. When we went to the room, I received a call from a colleague to tell us to be careful and if we could leave the room, we should do so. I fled and went to a place, and the next day got a call from a family member, an old man who used to work as a policeman. He said that I was in danger. He said that there were instructions to kill me as I was ‘bothering the presidential party’. He said that I should leave the country. I never thought that I would be in this position. I said to him that I have no money or a passport and where will I go? I was very scared and I had to leave. He gave me instructions and told me to get to the port, and he would make arrangements for me. So I negotiated with retailers to take me from the province I was at to the port. The old man said I should do whatever the people at the port tell me to do. I met another man there who said I should go. He said that my life was threatened. They took me to someone to get a boat. I hid with the luggage and two and a half months later I arrived in [Country 1]. I got out and people said not to worry that I would not be removed, even though I had no documents, except my student card and voting card. I found a spot to sleep. The next day around 9am I met a black man hanging around the port. I tried to communicate but did not speak [Language 1]. He said he would take me to a place where they spoke [Language 2]. He took me to [City].
The Tribunal accepts that the applicant was eventually granted refugee status in [Country 1]. The evidence about this is discussed later in the decision.
The Tribunal accepts the applicant’s evidence that in [City] he was taken to the [Organisation] office, where a person called [Mr A] found him an interpreter, and then a person called [Ms B] took him to a house for asylum seekers, where he was ‘taught how to integrate’. The Tribunal accepts that a psychologist helped him as he was ‘lost at the time’. He got some ‘small jobs’ and he learnt to be [an occupation 2]. He then started his own business. The Tribunal accept that he had a [business 1], frequented by many Congolese and [Country 2] people, and that it was very successful and at some point, he started a [workplace 1] as well. As referred to earlier, the Tribunal found the applicant to be a credible and consistent witness.
Did the applicant suffer harm in [Country 1] because he was a political activist?
The Tribunal accepts the applicant’s evidence, which has been provided consistently, that when he first he arrived in [Country 1] he did not get involved in any political activity.
The Tribunal accepts that from 2014 the applicant was part of a group that met in his [business 1] and on the streets and held discussions and protests about the Congolese government. On the weekend Congolese people came to the [business 1] and the discussions and protests ‘evolved spontaneously’. The Tribunal accepts that the group got together most Saturdays, with ‘a lot of discussion about the illegality of the President, who had got into power without being elected’. The Tribunal accepts the applicant’s evidence that they met mostly in the [business 1], but about three times they took placards and microphones and marched to the town hall. When they arrived at the town hall there were a few members of the media.
The Tribunal accepts this evidence because overall the Tribunal has found the applicant to be a credible witness who has provided consistent evidence. The applicant has provided a reasonable explanation for his decision to re-enter politics – he decided to get involved because he was a victim of discrimination in [Country 1], and because of ‘what was happening’ in his country and he wanted to ‘change DRC to a democracy’. He said that at the time the President and all the members of the Cabinet and Ministry ‘were people coming from other countries’. He said that he held nationalist views and wanted the leaders to be Congolese.
The Tribunal has accepted earlier in this decision that the applicant fled from DRC to [Country 1] in November 2011 following threats of arrest and physical harm from government forces, so it is reasonable that he would continue to take an interest in the affairs of DRC. The applicant has also provided photographs to corroborate his claims. The photographs depict the applicant along with other men holding the flag, and in a crowd of protestors holding the flag. He is also shown at a table with other men and the flag behind him. In another photograph he is speaking into a microphone and in another it appears that he is being interviewed.
The Tribunal also accepts the applicant’s evidence about being threatened and harassed in [Country 1]. This evidence is set out below.
The applicant said that the first occasion was in February 2016 when six people came to his [business 1] pretending to be clients. They took out guns and demanded money which they took from the cash register. They warned him saying ‘things will end up badly for you’. Although he lodged a police report, the police could not help him without having the exact information before them about the people who had robbed him.
He claimed that the same Congolese group in [Country 1] attacked him on other occasions. The next occasion was again in February 2016, and they came again in March 2016. He asked why they were harassing him, and they said that he was ‘meddling with their business’, and because their boss said that the meetings he attended ‘bothered him’. He was told that they were sent by the ambassador to stop the movement he had started and if he did not stop then he would be killed.
He said that he did contact police many times. The police asked him to call when the offenders came to the [business 1], but it was difficult because the offenders were armed so he could only call when they were not there.
He said that on 10 October 2016 the Congolese group came to his [business 2] with guns, demanded $3,000 and took his mobile phones. He said that he reported the thefts to the police twice, however they did nothing.
His evidence is consistent with sources which suggest that many Congolese face violence and racism in [Country 1].[15] The applicant referred to the Congolese [occupation 4] [Mr C] who described the constant fear and violence that Congolese refugees face in [Country 1].
[15] [References]
The refugee criterion
Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[16]
[16] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
· the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
· 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 above; and
· the real chance of persecution relates to all areas of a receiving country.
Is there a real chance of serious harm if the applicant were to return to DRC?
The Tribunal has considered first whether there is a real chance that if the applicant returned to DRC he would be persecuted. Section 5J(4)(b) of the Act provides that the persecution must involve serious harm. The Tribunal must assess whether there is a real chance of serious harm in the reasonably foreseeable future.[17]
[17] Mok Gek Bouy v MILGEA (1993) 47 FCR 1 at 66; and MIEA v Wu Shan Liang (1996) 185 CLR 259 at 279 where the High Court referred with approval to the test that the Tribunal had applied in Chen Ru Mei v MIEA (1995) 58 FCR 96.
The applicant claimed in his application and in his interview with the Department that if he returns to Congo he will be killed because he was a member of the opposition party UDPS. He claimed at the Department interview that Congolese intelligence agents would kill him. At the Tribunal hearing he claimed that he could not help himself but to speak out against injustice and this would lead to his arrest or death.
The Tribunal had some concerns about whether the applicant in fact fears being persecuted and whether there is a real chance of serious harm, given that he returned to DRC voluntarily in 2016 for a three-month period.
However, after considering his evidence to the Tribunal, the Tribunal accepts that there were valid reasons for his return, and that the fact that he was unharmed then does not mean that he will not be harmed if he were to return in the reasonably foreseeable future. This is explained below.
It was put to the applicant at the Tribunal hearing that as he returned voluntarily to the country where he claims to fear persecution, and stayed there for three months, this is a strong indication that he does not have a fear of returning, and that there is not a real chance of serious harm there as he suffered no harm.
The applicant told the Tribunal that he returned to DRC from July to September 2016 as he had been harassed, robbed and threatened in [Country 1] by compatriots, and the Secretary General of UDPS organised a reunion for some of the members in DRC. He said that he was under significant pressure in [Country 1] from the people who were frightening him. The Secretary General said that it was safe to return, and there was an agreement with the government. At the time the government encouraged members of the diaspora to return. He was hoping there had been change.
He said that at the airport in DRC he was taken to a room and asked why he lived in [Country 1]. He was also asked for his address in DRC. He said that he provided the officials with the wrong address. He said that he stayed in a hotel far from the address he gave.
He said that he later discovered that people had gone to the address he had provided, which was his old address. The people who were renting it, and neighbours, told his brother that people had come to the address asking where he was. They were people dressed as civilians and they had a photocopy of his passport.
He was asked whom he met with for the three months he was in DRC. He said that he went to the reunion of the party and the Secretary General was there. Asked if he saw his family, he said that he saw his older brother and sister at the university, but not other family members as he was afraid.
He said that he realised while he was there that it was not secure. He said that he got news from a family friend in the police who told his older brother that he should not stay in DRC because he was in danger. He heard there was an order to arrest him. One of the people who came from [Country 1] was kidnapped in Kinshasa. The second one was later poisoned in [Country 3].
He said that he acknowledged that he was in DRC for three months and nothing happened to him. He said that he left the hotel and was in hiding and went to a friend’s place. This was an old man who worked at the airport, and he did the check-in at the airport for him when he left.
Information from the Canadian Immigration and Refugee Board of Canada in 2017 suggested that if asylum seekers returned to DRC, they would be met by the Migration Directorate and interviewed by the National Intelligence Agency.[18] The Canadian Immigration and Refugee Board report indicated that at the time the state was not interested in low‑level activists but only in combatants from the diaspora.[19] The fact that there was some interest in him suggests the authorities regarded him of some concern, although perhaps not regarded as high level, since he was allowed to leave the airport, and not located during his three-month trip or arrested on departure.
[18] Immigration and Refugee Board of Canada, ‘Situation of people returning to the country after they either spent time abroad, claimed refugee status or were seeing asylum (2015-July 2017), 10 July 2017.
[19] Immigration and Refugee Board of Canada, ‘Situation of people returning to the country after they either spent time abroad, claimed refugee status or were seeing asylum (2015-July 2017), 10 July 2017.
On consideration of this evidence, the Tribunal accepts that the applicant returned to DRC believing that there was some change in the country, at a time when he was distressed by the violent encounters in his [business 1] in [Country 1]. The Tribunal accepts that he was disavowed of the perception that DRC had changed for the better once in the country, and he realised that there was some adverse interest in him, and he had to keep a low profile. The Tribunal is of the view that he was not of significant interest, otherwise he would have been located, but does accept that he was of some interest to the authorities.
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept[20] – not only must a person fear persecution, there must also be a prospect of that fear being realised.
[20] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[21]
[21] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.
The Tribunal is satisfied that there is a real chance of serious harm, in the sense of a non‑remote chance, even if below 50%, if the applicant were to return to DRC in the reasonably foreseeable future for the following reasons.
Firstly, the applicant has a history which may be of interest to the authorities. He fled DRC because of his opposition to Kabila’s government. He had been involved in campaigning for UDPS from 2009 to 2011 and had come to the attention of the authorities. He was granted refugee status in [Country 1] on the basis of his political activity in DRC.
He also participated in Congolese anti-government activities in [Country 1]. Although not at a high level, these activities included rallies, and may well have drawn attention to him.
Although he was not located on his trip to DRC in 2016, he was sought out by authorities, indicating some interest in him, even though his name was not on an airport list, as he was able to depart freely.
Secondly, although the applicant was a UDPS supporter, and President Tshisekedi came to power as a UDPS member, the party has had divisions since then due to Tshisekedi’s alliance with Kabila, and the applicant’s motives appear to be to work towards justice and democracy in DRC rather than allegiance to a political party.
The Tribunal accepts the submissions provided by the applicant to the Department dated 12 March 2019 that the (then) new President Tshisekedi, although a member of the applicant’s party, had colluded with Kabila to pacify protests in DRC. Felix Tshisekedi was declared president on 10 January 2019. His party, the UDPS, won only 32 seats in the National Assembly. 342 out of 500 seats went to the Common Front for Congo party of the former leader, Joseph Kabila.[22] Martin Fayulu refused to accept the results, insisting that Tshisekedi and Kabila had a backroom deal.[23] The Common Front also had a majority in the Senate.[24]
[22] Africa News, ‘DRC: one police officer dead during violent protest as ruling party fail to win senate seat’, 17 March 2019; Aljazeera, ‘DRC's Bemba seeks $77m in compensation from ICC’, 12 March 2019; Aljazeera, ‘DRC President Tshisekedi pardons about 700 political prisoners’, 14 March 2019.
[23] Deutsche Welle, ‘DR Congo: Ruling coalition wins legislative majority’, 17 January 2019; Aljazeera, ‘DRC President Tshisekedi pardons about 700 political prisoners’, 14 March 2019.
[24] Africa News, ‘DRC ruling party fails to get Senate seat, Kabila coalition dominates’, 16 March 2019.
100. This arrangement was referred to in the following article from the Washington Post:
Mr. Kabila, leaving office after nearly 18 years, had handpicked his former interior minister Emmanuel Ramazani Shadary as his successor, hoping he would be a useful marionette. But Mr. Shadary polled poorly and came in third. The count was delayed, during which time Mr. Kabila and his cronies clearly attempted to sort out what to do next. Then the election commission announced that the winner of the presidential vote was opposition candidate Felix Tshisekedi. The head of the commission, Corneille Nangaa, declared Mr. Tshisekedi the winner with 38.57 percent of the vote, just ahead of another opposition candidate, Martin Fayulu, with 34.percent, and Mr. Shadary with 23.8 percent.
Strong evidence has emerged that these numbers were fixed. The Financial Times reported Jan. 15 that it had examined two sets of voting data that showed Mr. Fayulu was “the clear winner.” The newspaper said the data represented 86 percent of the total votes cast and Mr. Fayulu was the victor with 59.4 percent, while Mr. Tshisekedi received 19 percent. Separately, the paper said it conducted an analysis of voting results collected by the Catholic Church, which deployed 40,000 observers. This data covered 43 percent of the votes cast and showed Mr. Fayulu won with 62.8 percent. The paper said the first data set was drawn from the original electronic tallies across the country, as transmitted before the results were announced.
Adding to suspicion about the outcome have been odd statements by Mr. Tshisekedi about some kind of power sharing arrangement with Mr. Kabila. It sounds an awful lot like a backroom deal to subvert the will of million[s] of voters. Mr. Kabila, who dragged his feet on the election for nearly two years after his term ended and who ruled the resource-rich land as a personal kleptocracy, seems intent on staying in power behind the scenes and has hinted he may attempt a return. Nothing could be worse for Congo, scene of two wars that took millions of lives and now of a festering outbreak of Ebola.[25]
[25] Washington Post, ‘Congo’s Presidential Election looks to be an enormous fraud’, 3 November 2019.
101. Sources confirm that the former regime’s officials and ambassadors retained their positions and some retained influence.[26] Furthermore, the new government continued to act violently towards protestors as the Kabila government had done.[27]
[26] Atlantic Council, 14 January 2020, Congo, one year later - Atlantic Council < Amnesty International, 24 January 2020, DRC: One year since Tshisekedi took office, insecurity and impunity still imperil human rights - Amnesty International < Tshisekedi initially formed an alliance with Kabila, but he eventually dissolved this alliance and formed a new one in December 2020, the Sacred Union, which formed a new government in April 2021 and continues to rule.[28]
[28] UK Home Office, ‘Country Policy and Information Notes DRC: Opposition to the government’, November 2023.
103. The applicant has confirmed that he still supports UDPS but not the current government with its leader Felix Tshisekedi, who entered into a coalition with Kabila. He explained that UDPS has been divided since 2018 when the President entered into this alliance. He said that there are still people dying across the country and the voices of the people are not being heard. He was not currently involved in any political group in Australia because of the misery it had caused him. He was also afraid of DRC operatives operating in Australia. Asked why he is afraid of returning if UDPS are in power, he said that UDPS do not have the power and it is still controlled by the former government. He said that the majority of people from the diaspora who have returned have been poisoned and killed, even people who worked closely with the President.
104. He provided an article from Human Rights Watch referring to supporters of opposition political parties protesting against the electoral process in Kinshasa in 2023.[29] The article reported that the authorities had targeted leaders of opposition political parties, and arrested party officials. This included preventing the convoy of Moïse Katumbi, leader of the opposition party Ensemble pour la Republique (Together for the Republic), from entering a province where he was holding meetings. Katumbi and opposition leader Martin Fayulu attended the protests.[30]
[29] Human Rights Watch, 25 May 2023, < DR Congo Crackdown on Opposition ahead of elections>.
[30] Human Rights Watch, 25 May 2023, < DR Congo Crackdown on Opposition ahead of elections>.
105. In submissions to the Tribunal dated 29 August 2024 it was submitted that the political climate remains dangerous for democratic activists such as the applicant. It was submitted that although there has been a change in leadership, evidence indicates that former President Joseph Kabila retains control over the government through the new president Felix Tshisekedi, who is regarded as a puppet leader.
106. The Tribunal accepts that the applicant would face serious harm if he returned. He may well be remembered or noticed because of his prior involvement in DRC and [Country 1], and for the fact that he fled the country. Even if he is not, the applicant has strong political views. When asked by the Tribunal what he fears now if he returns to DRC, he said that he will die, because when he sees something that will upset him, he will not be able to keep his mouth shut. He said that until now the country has been controlled by foreigners and if you speak out in opposition to government policies you just disappear. He told the Tribunal that the voices of the people are not being heard. Asked whether he would be safer now, as his party is in power, he said that it is more dangerous than before, and dissent is suppressed. He said that the country is insecure due to the war and infiltration from foreigners. There is kidnapping, crime and easy availability of weapons.
107. He said that the Secretary General, Jean-Marc Kabund, has been in prison for two years with little information about his welfare. The Tribunal notes that Kabund has recently been freed but was in prison since 2022 until earlier this year.[31]
[31] Reuters, ‘Congo frees opposition leader and former president's ally Kabund’, 21 February 2025, The UK Home Office in 2023 concluded that in general, rank and file members of political parties in opposition to the government are unlikely to be at risk of persecution.[32] They also said that in general members of the diaspora in the UK are not monitored and are not of significant interest on return.[33] This was put to the applicant at the Tribunal hearing. He said that it is not true; in fact, the ‘people at the top’ are protected and have guards and security, but the people of lower rank disappear, and a lot of people from the diaspora have disappeared.
[32] UK Home Office, ‘Country Policy and Information Notes DRC: Opposition to the government’, November 2023.
[33] UK Home Office, ‘Country Policy and Information Notes DRC: Opposition to the government’, November 2023.
109. The Tribunal notes that the UK Home Office said that each case may be different and should be assessed on its facts.[34] The Tribunal has considered more recent information which refers to ‘critics’, protestors and party members being harmed.
[34] UK Home Office, ‘Country Policy and Information Notes DRC: Opposition to the government’, November 2023.
110. Human Rights Watch reported in March 2024 that:
The government has also significantly repressed the rights to free expression, media freedom, and peaceful assembly. The authorities have over the past four years increasingly cracked down—including online—on journalists, human rights and democracy activists, critics of the government, and opposition party members and officials. Security forces have repeatedly used unnecessary or excessive force, including lethal force, to block or disperse peaceful demonstrations.
Tshisekedi recently described the country’s justice system as “ill.” His administration should act to reform the justice system and address corruption, which significantly reduces the government’s capacity to deliver on its obligations to provide quality education, health care, and social security.
Widespread impunity for serious abuses remains the norm. The president should commit to take concrete measures to address recurring cycles of violence fueled by a lack of criminal accountability for grave crimes. Concrete steps are also needed to restore the Congolese people’s trust in democratic institutions.
“President Tshisekedi promised to address recurring violence, to end repression, and to improve the daily lives of all Congolese,” Fessy said. “The president should devote his second term to fulfilling these goals by working for, rather than against, human rights, the rule of law, and democratic principles.”[35]
[35] Human Rights Watch, ‘DR Congo: Second Term Should Focus on Rights’, March 2024, A detailed report published in August 2024 by various human rights organisations drew on interviews conducted between April and June 2024 with various Congolese and international civil society actors working in the country as well as other reports.[36] The report found that opposition and civil society actors were ‘muzzled’ during the elections. It found that ‘many of the hopes for greater protection of human rights that were placed in the president when he was first elected in 2019 have now been shattered.’ The report noted that some of the promises made by President Tshisekedi in 2018 had been fulfilled, including the pardoning of over 700 political prisoners. However, other promises were not kept, such as the end of incommunicado detention, and there has been ongoing force and repression against human rights defenders, journalists, representatives of citizen movements and ‘any voices that criticise its governance’.[37] The report states that the freedoms of peaceful assembly, demonstration, expression and press are under severe pressure, with disproportionate force being used against peaceful demonstrators, causing many deaths and serious injuries.[38]
[36] The Observatory, Groupe Lotus, Asadho and others, ‘Human Rights Defenders on the Front Line’, August 2024, The Observatory, Groupe Lotus, Asadho and others, ‘Human Rights Defenders on the Front Line’, August 2024, The Observatory, Groupe Lotus, Asadho and others, ‘Human Rights Defenders on the Front Line’, August 2024, Freedom House reports that the political system in DRC is ‘paralyzed due to the manipulation of the electoral process by political elites’. It states that citizens are unable to freely exercise basic civil liberties. The report states that ‘opposition leaders and supporters are often intimidated, journalists attacked or arrested, and citizens face restrictions on movement and rights to campaign or organise public events.’[39]
[39] Freedom House, ‘Freedom in the world 2024 – Democratic Republic of the Congo’, 2025.
113. An article from The Africa Report in 2024 provided by the applicant details a surge in political repression under Tshisekedi’s rule, including crackdowns on protests, arrest of political opponents and human rights abuses.[40] The article refers to four activists from the youth civil society movement Lutte pour le Changement (LUCHA) and three others being arrested in Kinshasa. They had been protesting M23’s occupation in North Kivu.
[40] Africa Report, ‘Democratic Backsliding Tshisekedi 2.0 era opens with wave of repression in DRG’, 16 February 2024.
114. Amnesty has also reported on the crackdown on dissenting voices in DRC, including new laws to curtail freedom of expression and the banning or violent dispersion of protests.[41] Members of the opposition L’Envol party have been arrested and abducted.[42]
[41] Amnesty International, ‘Human rights in Democratic Republic of the Congo’, 2024, < Amnesty International, ‘Human rights in Democratic Republic of the Congo’, 2024, < The Tribunal accepts that these sources highlight a government that has used force and repression against all types of critics.
116. Furthermore, the dangers of speaking out are likely to be exacerbated in the current environment in DRC. Human Rights Watch reports that the human rights situation is poor, with internal conflicts and poor governance contributing to a severe food crisis and internal displacement of 5.8 million people.[43] The report states that there are over 100 armed groups active in eastern DRC. Imposition of martial law in North Kivu and Ituri provinces had facilitated abuse by security forces. According to the report, ‘armed groups and often abusive security forces continue to carry out massacres, abductions, rape and sexual violence, recruitment of children and other attacks on civilians with near total impunity.’[44]
[43] Human Rights Watch, ‘World Report Democratic Republic of Congo’, 2025.
[44] Human Rights Watch, ‘World Report Democratic Republic of Congo’, 2025.
117. There is also ongoing inter‑communal violence in Western DRC between the Suki, Mbala, Yansi, Songe, Luba, Kongo, Yaka and Teke ethnic communities.[45] Smart Traveller Australia reports that armed conflict between militia groups and government forces continues in Kasai Oriental. Violent protests and civil unrest are also taking place in Kinshasa.[46]
[45] United Nations, ‘UN Special Adviser on the Prevention of Genocide condemns the escalation in fighting in DRC’, Africa Renewal, December 2022, < Smartraveller, ‘Democratic Republic of the Congo Travel Advice & Safety’, 20 February 2025, < Currently, M23, a Rwanda‑backed militia, has seized vast tracts of eastern DRC, including Goma and Bukavu. Ensuing violence has killed thousands and displaced hundreds of thousands.[47] The east is mineral rich and has been subject to conflict since the 1994 Rwandan genocide.[48] Numerous armed groups have tried to gain control in the area. M23 has previously threatened to take over Kinshasa but some analysts say this is unlikely as it is 2,600 km away.[49] M23 are led by ethnic Tutsis who say they need to take up arms to protect their minority rights, following what they say is lack of compliance with a peace agreement on 23 March 2009.[50] They took up arms again in 2021. M23’s leader is Sultani Makenga, who is a Congolese Tutsi who previously fought in the Rwandan army. Rwanda has denied supplying weapons, but UN experts say it has provided weapons, logistical support and command.[51] The applicant said that he had lost three family members to this war already. Two were living and working in the area and the third was killed in action. He said that the militants tried to rape the wife and the husband intervened and was killed, as was she.
[47] News.com.au; ‘Burundi, Uganda manoeuvre as DR Congo violence spreads’, 20 February 2025, | < ‘DR Congo conflict: What is the fighting in Goma about?’, 17 February 2025, < BBC, ‘DR Congo conflict: What is the fighting in Goma about?’, 17 February 2025, < BBC, ‘DR Congo conflict: What is the fighting in Goma about?’, 17 February 2025, < BBC, ‘DR Congo conflict: What is the fighting in Goma about?’, 17 February 2025, < Reports refer to rights activists and environmentalists being targeted.[52] An extensive human rights report in 2024 found that the conflict with M23 had led to a further tightening of existing restrictions on civic space.[53] The Tribunal is satisfied that in this environment there is a heightened chance of harm.
[52] Mongabay, ‘Environmental & rights activists flee and hide as M23 captures DRC’s cities’, 18 February 2025, < The Observatory, Groupe Lotus, Asadho and others, ‘Human Rights Defenders on the Front Line’, August 2024, For all the reasons set out above considered cumulatively, the Tribunal is satisfied that there is a real chance of serious harm, in the sense of a substantial, non-remote chance of harm[54] for reasons of the applicant’s political opinion. The Tribunal is satisfied that the applicant is a person who speaks out against injustice and attends protests and demonstrations. The reports referred to above suggest that it is not just leaders who are targeted, but also supporters and individuals.[55] The applicant has demonstrated that he is a person of conviction, in both DRC and [Country 1], and the Tribunal is satisfied that he will express his opinion and protest the perceived wrongs in his country, and that consequently there is a real chance of arrest or physical ill-treatment.
[54] Chan v MIEA (1989) 169 CLR 379.
[55] See the examples in The Observatory, Groupe Lotus, Asadho and others, ‘Human Rights Defenders on the Front Line’, August 2024, < the real chance of persecution relate to all areas of the receiving country?
121. Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.
122. The Tribunal is satisfied that the real chance of persecution relates to all areas of DRC given that the harm he fears is from the state or its agents.
Does the persecution involve systematic and discriminatory conduct?
123. Under the legislation, persecution must involve systematic and discriminatory conduct.[56] The Tribunal is satisfied, on the basis of country sources referred to earlier in this decision, that the persecution would involve systematic and discriminatory conduct in that the applicant would be selectively targeted in a non-random way for harm by the state or its agents.
[56] Section 5J(4) of the Act.
Is effective protection available to the applicant?
124. A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act.
125. The Tribunal is not satisfied that effective protection measures would be available as the harm feared is from the state itself.
Could the applicant modify his behaviour to avoid harm?
126. Section 5J(3) of the Act provides that a person does not have a well-founded fear of persecution if he or she could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country. However, this does not apply to a modification that would alter his or her political beliefs or conceal his or her true political beliefs, which would be the case here.
Does the applicant have the right to enter and reside in a third country?
127. Having found that the applicant meets the criteria set out in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant has not taken all possible steps to avail himself of a right to enter and reside in a country apart from Australia.
128. Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who had not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
129. The applicant claimed that he was granted refugee status in [Country 1] in 2013. He said that he applied for refugee status through lawyers from [Organisation]. He said that he was a temporary resident but after a year and a half, when his daughter was born, he was given permanent residency.
130. He claimed that his refugee visa for [Country 1] expired in 2024 and he knows this because it was stated on the visa on his passport. At the first Tribunal hearing, he told the Tribunal that he did not have evidence of his refugee status. The Tribunal requested that he provide evidence of the refugee grant. In submissions dated 27 February 2025, his representative said that he had contacted the [Country 1] Justice Ministry on 21 February 2025 and the visa information would take two to three weeks to arrive. This is information that, in the Tribunal’s view, should have been provided by the representative at an earlier stage. At the second hearing, the Tribunal requested evidence of this email. The Tribunal also asked the applicant to provide a copy of an email he said was in possession of which referred to the expiry of his visa. He said that these documents would be provided by 5 March 2024. On 9 March 2025 the applicant provided a copy of a document from the [Country 1] Ministry confirming the cessation of his refugee status.
131. The UNHCR explains that a person is considered a refugee in [Country 1] if that person leaves his/her country of origin because of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, or due to a situation of grave and widespread human rights violation in his/her country of origin.[57]
[57] UNHCR, ‘Help – [Country 1]’, < 1]/en/asylum-claim/>
132. [Country 1 Law] provides for the procedure for the determination, suspension or loss of refugee status and the rights and duties of asylum seekers and refugees.[58] [Section 1] establishes a national body responsible for [Country 1]’s refugee programme, known as the [Country 1 authority].
[58] UNHCR, ‘UNHCR - Resettlement Handbook - [Country 1], [Reference]
133. The Tribunal is satisfied that the applicant was granted refugee status, even without citing a copy of the visa, as it has not cited the document relating to the expiry of his visa. Furthermore, he explained how a lawyer from [Organisation] helped him apply for the visa shortly after arrival. [Organisation] is an organisation which works with asylum seekers and refugees in [Country 1].[59] The applicant has consistently provided evidence of the refugee status and the fact that family members were later able to join him in [Country 1] under family reunion policies. He claimed that in 2013 his application for refugee status was granted. After that, he applied for family reunion and his family (son, two daughters, their mother and his brother) were able to go to [Country 1]. All of them are still living in [Country 1].
[59] [Organisation] website, [Country 1] – [Reference]
134. The Tribunal notes that pursuant to [Section 2] of the [Country 1 Law], loss of refugee status occurs where the refugee departs without prior authorisation from the [Country 1] government.[60]
[60] United States Library of Congress Law website, Refugee Law and Policy: [Country 1] < 1]>
135. He said that he did not get authorisation when he went to DRC and when he returned to [Country 1] he was rejected at the airport, and it was only through the assistance of a lawyer from [Organisation] that he was able to re-enter [Country 1]. He did not apply for authorisation to travel to Australia.
136. UNHCR reports that it is mandatory for refugees in [Country 1] to obtain authorisation from CONARE to travel abroad and warns refugees that travelling abroad without authorisation from CONARE may result in the loss of their refugee status with [Country 1].[61]
[61] UNHCR, ‘UNHCR - Resettlement Handbook - [Country 1], [Reference].
137. The Tribunal is satisfied on the basis of this evidence that the applicant is not a citizen of [Country 1] and does not have the right to enter and reside in [Country 1].
138. The applicant claimed at the Department interview that he could not live in [Country 2] although his former wife was a [Country 2] national. His representative said that [Country 2] law makes it clear that [Country 2] does not allow permanent residency to spouses. The applicant and his wife are now separated. The Tribunal is satisfied that the applicant is not a citizen and does not have a right to enter and reside in [Country 2].
139. The Tribunal notes that DRC is a member of the East African Community (EAC),[62] comprising the Republic of Burundi, the Democratic Republic of the Congo, the Republic of Kenya, the Republic of Rwanda, the Federal Republic of Somalia, the Republic of South Sudan, the Republic of Uganda and the United Republic of Tanzania. The treaty guarantees that persons who are citizens of other partner states have freedom of movement.[63] The Treaty for the Establishment of the EAC provides for the partner states to agree to adopt measures to achieve the free movement of persons and to agree to conclude a protocol on the free movement of persons, labour, services and right of establishment and residence at a time to be determined by the council.[64] This Treaty only entered into force on 7 July 2022.
[62] East African Community website, East African Community < East African Community website, East African Community < East African Community website at < The Full Federal Court in MIMAC v SZRHU [2013] FCAFC 91 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question. The right must be a right to both enter and reside: WAGH v MIMIA (2003) 131 FCR 269 per Hill J. The right must be existing, and not a past or lapsed right, or a potential right or expectancy: Suntharajah v MIMA [2001] FCA 1391.
141. The Free Movement of Persons Regulations sets out five categories of persons eligible to enter and remain temporarily in a partner state, those categories being visitors, persons seeking to enter for the purposes of medical treatment, persons in transit through the partner state, persons admitted as students in training establishments of the member state and persons entering a partner state for any other lawful purpose, other than as a worker or self‑employed person (such persons being dealt with separately in a different annexure to the regulations).[65] The Tribunal accepts that the applicant may enter any of the EAC partner states as a visitor, subject to documentation.
[65] Regulation 5, Protocol for Establishment of the East African Community Common Market on 1 July 2010, East African Community website, < Regulation 5 provides that a citizen of a partner state who seeks to enter or exit the territory of another partner state will be issued with a pass to enter the territory of the host partner state for a period of up to six months.
143. EAC regulations allow citizens of Partner States to enter, transit or exit the territory of another Partner State with a pass that allows them to stay up to six months[66] (assuming production of specified identity documents, which includes a national passport of the partner states[67]). Section 36(3) makes it clear that the right can be temporary or permanent. In SZRTC v MIBP (2014) 224 FCR 570 at [31], Justices Tracey and Griffith considered that EAC provisions permitting six months’ residence were a right to reside temporarily in those countries.
[66] The East African Community Common Market (Free Movement of Persons) Regulations – Annex1, East African Common Market, 1 November 2009.
[67] See the East African Community website, ‘Travelling in East Africa’ webpage, < According to information from the EAC, possession of a valid passport with at least six months’ validity is required for an EAC citizen to enter another member state.[68] Some states also currently allow citizens of each country to enter on the basis of holding a national ID card (or voter card in the case of Ugandans who do not yet have national ID cards). However, to take advantage of this permission the citizen has to be in their country of nationality at the time of travel.[69] An East African passport can also be used. Considering that the applicant does not have these documents, the Tribunal is not satisfied that there is a presently existing right to enter and reside in the other EAC countries.
[68] See the East African Community website, ‘Travelling in East Africa’ webpage, < See e.g. The New Times, ‘EAC Citizens thrilled to use IDs at border, 2 January 2014, < and New Vision, “The Experience of Cross Border Travel using National ID”, 11 January 2017,< A number of progressive steps are noted on the EAC website to implement the Common Market Protocol.[70] However, there are also a number of barriers. EAC has been straddled with infighting.[71] The EAC Deputy Secretary General said that the laws included those relating to movement of persons. However, he noted that significant progress had been made in terms of promoting cross-border skilled labour, through Mutual Recognition Agreements among professionals. He went on to say that the main barriers to the free movement of people in Africa were the mindsets based on the geographical boundaries drawn by the colonial powers and regulations put in place by countries concerning immigration, customs and other cross-border procedures.[72] While the right of movement of people is one of the pillars of regional integration of the EAC[73] and efforts have been made to promote the free movement of people in the EAC, there is a ‘lack of proper institutional frameworks and coordination mechanism, and an absence of complaints mechanisms or information about migration and trade processes’.[74] Some members have had split loyalties with other communities, and there are not clearly defined national policies governing different forms of migration.[75]
[70] East African Community website, CSIS, 7 May 2024, Expansion versus Cohesion: The East African Community’s Turbulent Journey to Greater Unity < EAC Website, ‘EAC Partner States need to harmonise 100 laws to conform to the Common Market Protocol’, 17 July 2018, < See East African Community, ‘Pillars of EAC Regional Integration’, < East African Community, ‘A Simplified Guide for Micro and Small-Scale Women Cross Border Traders and Service Providers within the East African Community (EAC)’, (December 2016); International Organisation for Migration, ‘Comparative Study on the Free Movement of Workers in Select East African Community Countries: Burundi, Kenya, Rwanda and the United Republic of Tanzania’ (2018), available at < Migration Policy Institute, 21 January 20221, Article: Africa Moves Towards Intracontinental Free Movement | migrationpolicy.org < Given these obstacles, the Tribunal is not satisfied that the applicant has a presently existing right to enter and reside in other EAC countries.
147. The Democratic Republic of Congo is also a member of the Economic Community of Central African States (ECCAS). ECCAS comprises Angola, Burundi, Cameroon, Central African Republic, Chad, Congo and Cameroon.[76] ECCAS states adopted a Protocol relating to the Freedom of Movement and Right of Establishment of Nationals of Member States within the Economic Community of Central African States (ECCAS Protocol) in 1983, which was further endorsed by a 1990 ECCAS Decision.[77] Although ECCAS has a policy of free movement for citizens of its member states, actual measures to enable this reportedly are absent. While some measures are reportedly in place, free movement and establishment has not been a priority for ECCAS member states.[78]
[76] The East African Community Common Market (Free Movement of Persons) Regulations, Annex I to the EAC Protocol (EAC Secretariat, November 2009).
[77] The East African Community Common Market (Free Movement of Persons) Regulations, Annex I to the EAC Protocol (EAC Secretariat, November 2009).
[78] OM, 11 January 2019, ‘West and Central Africa: The regional migration context’.
148. In general, implementation is regarded as negligible, impacted by security concerns, regional conflict and concerns about the spread of disease.[79]
[79] T Woods, ‘The role of free persons agreements in disaster management in addressing disaster placement – a study of Africa’, May 2019.
149. Given this country information, and the fact that the applicant’s passport has expired, the Tribunal is not satisfied that DRC’s membership of ECCAS gives rise to a presently existing right to enter and reside in any other member state.
150. The applicant is therefore not excluded from Australia’s protection by s 36(3) of the Act.
Findings on refugee criteria
151. The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion were he to return to DRC in the reasonably foreseeable future.
CONCLUDING PARAGRAPHS
152. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
153. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
ATTACHMENT A - 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.
…
36 Protection visas – criteria provided for by this Act
…
(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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Citations1912584 (Refugee) [2025] ARTA 750
Cases Citing This Decision0
Cases Cited10
Statutory Material Cited0
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827