1935343 (Refugee)

[2021] AATA 3282

1935343 (Refugee) [2021] AATA 3282 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935343

COUNTRY OF REFERENCE:                   Congo, Democratic Republic of

MEMBER:C. Packer

DATE:30 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2021 at 7:10pm

CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – race – Tutsi – imputed political opinion – relative and adopted son of known government agency worker – co-workers and family members killed – relative and other family members attacked – relative and surviving family members refugees in Australia or third country – applicant obtained Rwandan passport irregularly but not a citizen – country information – general socio-political conditions – targeted and general ethnic violence by state and non-state actors – status and documentation of Congolese refugees in Rwanda – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 November 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Democratic Republic of Congo applied for the visa on 28 August 2017. The delegate refused to grant the visa on the basis that the delegate found the applicant had become a Rwandan citizen and he had made no claims of having a well-founded fear of persecution if returned to Rwanda.

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

4. The applicant’s claims in the application had been centred on the applicant’s fear of the DRC authorities and the general community due to his Tutsi ethnicity, perceived political opinions and family affiliations. After considering his evidence and the material before the Tribunal, I accept that he has a well-founded fear of persecution in Democratic Republic of Congo arising from his ethnicity, family affiliations and imputed political opinion. My assessment follows.

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, 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.

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. 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).

8. 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.

9. 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

10. 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, FINDINGS

    Background

11. The applicant’s protection visa application provided some basic background information, and the applicant supplemented this with further details provided to the delegate, in the review and at the hearing. The applicant was born in Goma city, Northern Kivu, in DRC and he is a DRC national. His mother is a Congolese Tutsi and he considers himself to be a Tutsi. He indicated addresses in DRC and Rwanda until he entered Australia as a student [in] November 2016. He had largely lived in Kigali, Rwanda where he had schooling and attained [Qualification 1].

12. At hearing he stated his mother and sisters were still residing in [Country 1]. He stated he had no family members in DRC or Rwanda as they had all fled to other countries. In Australia he works in the [specified] industry.

    Country information

13. The Tribunal considered the reports and citations provided by the applicant and representatives, that included the US Department of State: 2020 Country Report on Human Rights Practices - Democratic Republic of the Congo, 30 March 2021. An overview from that report indicates:

    The Democratic Republic of the Congo is a centralized constitutional republic. Voters popularly elect
    the president and the lower house of parliament (National Assembly). Following a two-year delay,
    presidential, legislative, and provincial elections were held on December 30, 2018. On January 10,
    2019, the National Independent Electoral Commission declared Felix Tshisekedi the winner of the 2018 presidential election. The 2018 election was marred by irregularities and criticized by some observers, including the Council of Bishops, who stated the results did not match those of their observation mission. The 2019 inauguration of President Tshisekedi was the first peaceful transfer of power in the country’s history.
    The primary responsibility for law enforcement and public order lies with the Congolese National
    Police, which operates under the Ministry of the Interior. The National Intelligence Agency, overseen
    by the presidency, is responsible for internal and external intelligence. The Armed Forces of the
    Democratic Republic of the Congo and the military intelligence service operate under the control of the Ministry of Defense and are primarily responsible for external security but in reality focus almost
    exclusively on internal security. The presidency oversees the Republican Guard, and the Ministry of
    Interior oversees the Directorate General for Migration, which, together with the Congolese National
    Police, are responsible for border control. Civilian authorities did not always maintain control over the security forces. Members of the security forces committed numerous abuses.
    Significant human rights issues included: unlawful or arbitrary killings, including extrajudicial killings;
    forced disappearances; torture and cases of cruel, inhuman, or degrading treatment or punishment; harsh and life-threatening prison conditions; arbitrary detention; political prisoners or detainees;
    serious problems with the independence of the judiciary; arbitrary or unlawful interference with
    privacy; serious abuses in an internal conflict, including killing of civilians, enforced disappearances or
    abductions, and torture and physical abuses or punishment, unlawful recruitment or use of child
    soldiers by illegal armed groups, and other conflict-related abuses; serious restrictions on free
    expression and the press, including violence, threats of violence, or unjustified arrests of journalists,
    censorship, and criminal libel; interference with the rights of peaceful assembly and freedom of
    association; serious acts of official corruption; lack of investigation and accountability for violence
    against women; trafficking in persons; crimes involving violence or threats of violence targeting
    persons with disabilities, members of national, racial, and ethnic minority groups, and indigenous
    people; crimes involving violence or threat of violence targeting lesbian, gay, bisexual, transgender,
    and intersex persons; and existence of the worst forms of child labor.
    The government took some steps to identify, investigate, prosecute, and punish officials who
    committed human rights abuses, although there was impunity for many such abuses. Authorities often
    did not investigate, prosecute, or punish those who were responsible, particularly at higher levels. The
    government convicted some officials on counts of murder, rape, torture, arbitrary detention, and
    corruption, and sometimes punished security force officials who committed abuses.
    Government security forces, as well as illegal armed groups, continued to commit abuses, primarily in
    the restive eastern provinces and the Kasai region. These abuses included unlawful killings,
    disappearances, torture, destruction of government and private property, and sexual and genderbased violence. Illegal armed groups also recruited, abducted, and retained child soldiers and forced labor. The government took military action against some illegal armed groups and investigated and prosecuted some armed group members for human rights abuses

14. The US Department of State: 2020 Country Report on Human Rights Practices - Democratic Republic of the Congo discusses human rights violations in conflicts across DRC:

    There were credible reports that the IAGs and SSF perpetrated serious human rights violations and
    abuses during internal conflicts. On June 30, the UNJHRO reported that IAGs in the country were
    responsible for a “staggering increase” in human rights abuses, noting that the number of abuses
    attributed to IAGs had increased by 91 percent during the same period in 2019. The United Nations
    reported that as of July 31, 41 members of armed groups were convicted of human rights abuses.
    Conflicts continued in some of the eastern and northern provinces, particularly North Kivu, South Kivu, Tanganyika, Ituri, Maniema, Upper Uele, and Lower Uele, as well as in the Central Kasai region. IAGs continued to perpetrate violence against civilians; these include: the Nduma Defense of Congo-
    Renewal (NDC-R), the Democratic Forces for the Liberation of Rwanda (FDLR), Allied Democratic Forces (ADF), Lord’s Resistance Army, former fighters from the March 23 Movement, various Mai Mai (local militia) groups, and ethnically aligned militia groups in the Djugu area of Ituri Province, including those tied to the Congolese Development Cooperation (CODECO). Many IAGs originated in foreign countries or were predominantly composed of noncitizens.
    Conflict among armed groups caused significant population displacement and led to many human
    rights abuses, especially in Ituri and North Kivu Provinces. In North Kivu Province, the NDC-R, Mai Mai Mazembe, ADF, FDLR, as well as a host of smaller armed groups fought among themselves and caused significant population displacements as they fought over territory. There were reports some elements within the FARDC collaborated with some factions of the NDC-R.

15. The applicant’s submission of 17 May 2021 also discussed discrimination faced by Tutsis in DRC, and this included excerpts from Furaha Umutoni Alida, ‘‘Where do we belong?’ Identity and autochthony discourse among Rwandophones Congolese’ (2016) 15(1) African Identities 41, 42, 45:

    The following excerpt sets out the ongoing discrimination faced by Tutsis in DRC:
    One of the groups that is often presented as not belonging to the Congolese nation state is the
    Congolese Kinyarwanda-speakers (hereafter Rwandophones). Rwandophones have been living in the DRC for a long time. Some lived in what are now the eastern parts of the DRC since before colonisation and found themselves part of the Belgian Congo after the demarcation of borders at the Berlin Conference in 1884–1885. Other Rwandophones were brought to the DRC from Rwanda in 1936 with the Mission d’Immigration de Banyarwanda (Vlassenroot & Raeymaekers, 2004, p. 83), which was organised by the Belgian colonial authorities. The influx of Rwandophones has also continued in the post-colonial era, particularly during and in the aftermath of the genocide in Rwanda.
    Yet, even if many Rwandophones have been living in the DRC for a long time, their belonging as citizens of the DRC has been questioned, particularly after the outbreak of the wars in 1996 and this forms part of the ongoing conflict dynamics (Sadiki, 2013; Stephen, 2006, 2007; Vlassenroot, 2002).
    The autochthony discourse and how it is used to deny the Rwandophone groups belonging to, as well
    their citizenship in, the Congolese nation state has received quite a lot of scholarly attention (Bøås & Dunn, 2013; Kennes, 1997; Stephen, 2006). However, the question of Rwandophones position towards this discourse and the discourses they resort to in order to claim their citizenship, has so far received scant attention.
    …
    As a discourse, autochthony is of course not a new phenomenon. In the situation of the Congo, the use (or the misuse) of the autochthony discourse against Rwandophones frames them as ‘foreigners’ and a source of conflict, while it qualifies other ethnic groups (especially in Kivu) as the sole ‘nationals’. In the Congolese autochthony discourse, the similarities between the Rwandophone communities and the Rwandans occupy a central role. Thus, since the Rwandophone communities constitute a group with many similarities to the Rwandan people – such as their language, culture, etc. – they are portrayed as foreigners/ strangers. Consequently, their status of being autochthonous to the Kivus and the DRC as a whole is contested. Hence, the autochthony discourse against Rwandophones works by highlighting similarities and downplaying differences between the Congolese Kinyarwandaspeakers and Rwandans. This occurs in ways that have shifted over time, partially reflecting the evolution of armed groups and their networks of support on the one hand (Stearns, 2012; Stephen, 2006) and the outcome of the Berlin Conference on the other. As Bøås and Dunn (2013) conclude, autochthony is not a fact but a strategy (Bøås & Dunn, 2013, p. 123). This is very evident in the DRC where the citizenship of Rwandophones was never stable and citizenship laws have been accepted and abrogated at the will of the ruling elite.
    Understanding Rwandophones’ identity in relation to the autochthony discourses in the DRC requires
    a brief presentation of exclusion of and denial of citizenship for Rwandophones. It is widely
    acknowledged that the various armed conflicts involving Rwandophone armed groups are reflecting a
    long-standing situation in which claims over socio-political and economic rights, among others, have
    not been addressed in a sustainable manner. As Kennes (1997) points out that the conflicts in Kivu is
    resulted from the inability of political elites to find an appropriate institutional framework for resolving
    conflicts arising from the crisis of political representation that raged in the Kivu for years (Kennes,
    1997). It goes without saying that through history the Congolese government have been threatening
    Rwandophones mainly in terms of citizenship (Stephen, 2007). As Mamdani observed: ‘the
    Banyarwanda were increasingly marginalized from political and public life’ (Mamdani, 2001, p.
    235).

16. Other reports include (excerpts below):

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

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

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

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

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

    ICNL International Center for Not-for-profit Law, Democratic Republic of the Congo, updated 12 June 2021
    [ society today continues to operate in a complex social, economic, cultural, and political environment and struggles to guard against manipulation by various political forces, including the governing majority on the one side and the opposing minority on the other. The government has increasingly cracked down on criticism, including through the forced “disappearance” of journalists and the blocking of opposition protests. The public authorities justify these crackdowns as necessary to preserve “public order” and have used the same justification when implementing COVID-19 measures, such as curfews and bans on demonstrations and public gatherings. Consequently, Congolese civil society has become increasingly divided into two political camps: some CSOs are aligned with opposition political parties that desire political change through new elections, while other CSOs support maintaining the status quo and the political parties in power.

    International rankings
    Ranking Body  Rank  Ranking Scale

    (best – worst possible)

    UN Human Development Index                   175 (2020)  1 - 187
    World Bank Rule of Law Index  126 (2020)  1 - 128
    Transparency International       165 (2020)  1 – 180
    Foreign Policy: Fragile States Index                 5 (2020)  178 - 1
    Freedom House: Freedom in the World        Status: Not Free     (Free/Partly Free/Not Free)

    Political Rights: 4                   40 - 1

    Civil Liberties: 14 (2020)        60 - 1

    Summary of claims

1. A concise chronology of the applicant’s claims follows:

His father left the family before the applicant was born and disowned the applicant as a Tutsi

Early [year]-1994

He and his mother/brother lived with his [relative, Mr A] in [Village 1, DRC] until Rwandans began killing Congolese Tutsis in 1994; brother [Master B] murdered

5/1994
Arrive late May

He and his mother fled from [Village 1] to [Location] in [Territory, DRC] where the applicant’s grandfather lived

6/1995

He and his mother and his grandfather fled to [Town 1, DRC], then [Country 1], and then to Rwanda after hearing that the Interahamwe (Rwanda genocidal criminals) were coming

Mid-1995

[Mr C], the husband of his mother’s cousin, found them and took them to his house in [City 1, Rwanda]. Then, his mother’s brother, [Mr D], took them/applicant to Kigali, Rwanda in mid-1995.

9/[year] to [year]

He attends primary school in Rwanda

Mid-2002

His mother married * with whom she had two daughters, [Ms E]

[year] and [Ms F] [year]

[year] to [year]

He attends secondary school

·     During holidays he visited his [relative, Mr A], in the DRC

·     [Mr A] worked in the local administration for the National Congress for the Defence of the People (CNDP)

2/2010

He starts [post-secondary education]

2010

5/2011

6/2011

[Mr A]’s story:

• In 2010, Bosco NTAGANDA and his soldiers killed [Mr A]’s co-workers who were supporters of Chief General Laurent NKUNDA (NKUNDA).
• General Bosco NTAGANDA worked with the Congolese army in the Easter province of Congo and after he left, he joined the CNDP and was made the chief of staff.
• However, soon after it was found that General Bosco NTAGANDA was murdering innocent people.
• NTAGANDA later betrayed NKUNDA and wanted to kill everyone close to him, he targeted CNDP members including [Mr A].
• [Mr A] realised that his life was in danger and [fled] to [Country 1].
• [In] May 2011, two of his [Mr A]’s colleagues were murdered in [Country 1] on NTAGANDA’s orders.
• Realising he was not safe in [Country 1], [Mr A] fled to [Country 2] in June 2011.
• The applicant lost contact with [Mr A] during this time.
• [Mr A] was granted Australia’s protection 2013

[6]/2011

DRC electorate card issued [in] June 2011

2011

He doesn’t realise [Mr A] has fled DRC, he goes to [Village 2] DRC to see [Mr A], meets aunt [Ms G] who was visiting from Goma

·     Then they heard Ntaganda’s soldiers aware they in [Village 2] and they thought he was [Mr A]’s son

He and his aunt flee through bush to Goma (where aunt had a [shop]) and after a few days he crossed to Rwanda where the applicant continued his studies.

Early 4/2012

His stepfather [Mr H] murdered in [City 2, Rwanda]

·     Mother leaves [City 2] and joins him and grandfather

Early 11/2012
20/11/2012

He visits aunt in Goma during holidays;

·     learns on 20/11/2012 that NTAGANDA had taken Goma and people fled

[11]/2012

international driver licence issued (in DRC ?)

Arrive /[11/12]

He/aunt flees to [Town 1]
Then they cross into [Town 2, Country 1]where he found his relatives who had also escaped, who have since settled in Australia.

He then goes back to Rwanda where his grandfather/mother residing

2012 -11/2013

He continues [studies] in Rwanda

4/2013

NTAGANDA and M23 fighters were defeated in April 2013 and Rwanda gave Ntaganda refuge

[2013]

He illegally obtains a Rwandan passport

·     Issued, expired [2018]

·     Shows he born in DRC

[2]/2014

He graduates in Rwanda with [Qualification 1]

[4]/2014

11/2014

He gets job in a [company] in Rwanda [“I was outsourced from [Agency] to a job in a [company] called * where I worked as [an occupation] in Kigali, Rwanda.”]

·     He is promoted

2015

He speaks to [Mr A] who encourages him to study in Australia

[9]/2016

3 masked men attack him, his mother and grandfather at home at night

·     They say will kill him and family due to [Mr A]’s conflict with NTAGANDA

·     Grandfather killed, applicant hit head and loses consciousness, attackers flee

2-3 weeks later they move to a house in a different district

[10]/2016

He receives offer from an Australian University

He discovers attack was caused by [Mr A]’s co-operation with the
International Criminal Court (ICC) in relation to NTAGANDA’s alleged war crimes.

21/11/2016

Australian visa granted

[11]/2016

Arrives Australia, as a student

His mother and sisters stay in Kigali Rwanda

3/2017

Mother goes to Goma to renew her ID card, authorities harass her and detain 3 days (as Tutsi and as her [relative, Mr A] known to be part of CNDP)

·     Mother then goes to [Village 3] in Rwanda

[7]/2017

2017

6/2021

His mother and sisters were almost attacked in Rwanda but were helped by people of the neighbourhood watch

Mother had received threatening letters warning [Mr A] should stop making accusations against NTAGANDA.
The applicant’s mother and sisters flee to [Country 1] - apply for refugee status
At the time of the hearing they remain in [Country 1]

1. The applicant claims he fears persecution in Democratic Republic of Congo from the authorities and the general community because of his:

   ·Race: his ethnicity as a Tutsi

   ·Membership of a particular social group of family: immediate family relationship with his [relative]/adoptive father [Mr A]

   ·Political opinion: imputed supporter of the CNDP and M23 Tutsi rebellions

   Evidence

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

   ·the applicants’ Protection visa application form lodged 28 August 2017, and statement concerning reasons for seeking protection in Australia

   ·passport pages (Rwandan passport that he says is improperly obtained)

   ·birth certificate

   ·his Voters card issued [6]/2011 (Goma, North Kivu)

   ·father’s Voters card [3]/2017 (Goma, North Kivu)

   ·mother’s ID card

   ·counsellor’s letter of 18/7/2017

   ·photos of family, funeral, dead bodies

   ·country information- reports and articles

   ·ID card DRC [6]/2011

   ·statements and submissions

   ·uncle’s statement ([Mr A]) of 2/8/2017

   ·aunt’s statement ([Ms I]) of 2/8/2017

   ·the Protection visa decision record (‘delegate’s decision’) dated 21 November 2019, which is the subject of this review, and the applicant provided a copy to the Tribunal

   ·the application for review

3. On 30 June 2021 the applicant appeared before the Tribunal to give evidence and present arguments. The hearing was conducted with the assistance of an accredited interpreter in the French and English languages. The applicant stated he understood the interpreter. However, at the start of the hearing he indicated he understood English and did not require interpretation and he only used the interpreter at times during the hearing. The witness used the interpreter.

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

   Assessment of claims

   Identity

5. The applicant claims to be a national of Democratic Republic of Congo. He states he was born in Northern Kivu, but had lived for many years including his formative years in Rwanda. He provided identity documents including:

   ·Original DRC birth certificate issued [in] August 2015

   ·Original DRC electorate card issued [in] June 2011

   ·ID card for DRC issued [in] June 2011

   ·Original DRC international driver licence issued [November] 2012

   ·Rwandan passport [Number] (copy) issued [2013] that states the applicant was born in DRC

6. The delegate accepted the applicant’s identity and that he had been born in DRC, however, found that the applicant had acquired Rwandan citizenship and relinquished his DRC citizenship. The delegate stated in part:

   Asked how he obtained his Rwandan passport given that he was born in the DRC, the applicant explained that he lived in Rwanda for a long time and as such, the chief of his village provided him with a supporting letter that allowed him to obtain a Rwandan passport. Country information supports the applicant’s testimony. According to Information published by the Rwanda Directorate General of Immigration and Emigration (RDGIE), to be issued with an ordinary Rwandan passport, an applicant must present with a recommendation letter issued at the administrative cell level, a valid identity card and pay an application fee.

   More generally, country information indicates that the Tutsi ethnic minority from the DRC are
   perceived as being ‘Rwandan’ by virtue to their ethnicity and their historical ties to Rwanda. A person may obtain Rwandan nationality through naturalisation. All applicants for nationality by naturalisation must be "resident in Rwanda for at least the past five (5) years" and must be at least eighteen years of age. Applicants must "present a receipt of payment to the Public Treasury of a non-refundable fee" (ibid.) of 80,000 Rwandan francs (RWF). A chancellery fee of 500,000 RWF is also required when nationality is granted.

   According to a January 2016 report published by international NGO Open Society Foundations, dual nationality is permitted in Rwanda but not in the DRC.5 Department of Foreign Affairs Smartraveller advice as of 31 July 2018 confirmed that the DRC ‘doesn’t recognise dual nationality’.6 A 2005 article by IRIN News reported that ‘hundreds of Congolese who [had] recently returned from Rwanda to the east of the Democratic Republic of Congo (DRC) to register as voters ha[d] been disqualified because they h[eld] dual citizenship’.

   Having considered the above country information, documentary evidence, length of residence in Rwanda and the applicant’s testimony regarding how he obtained his Rwandan passport, I am of the mind the applicant obtained his Rwandan citizenship legally through naturalisation rather than illegally as he claims. I also find the applicant has relinquished his DRC citizenship once he acquired his Rwandan citizenship.

   The applicant has provided sufficient evidence of his identity which is consistent with his narrative and biometrics. A check of relevant systems has revealed no information that raises concern that the applicant has given a false identity.

7. Key points in the applicant’s submission of 17 May 2021 are:

   • He has consistently claimed that he is not a citizen of Rwanda and that he obtained his Rwandan passport (now expired) through irregular means (with the help of a third party, [Mr J]), and these claims are plausible and supported by country information
   • He continues to hold a valid DRC electorate card issued [in] June 2011
   • The reason for obtaining the passport was to enable him to utilise it as a travel document if he was to have to leave Rwanda as returning to DRC was unsafe and he was unable to obtain a DRC passport due to practical barriers in the ineffective DRC bureaucracy
   • He has never held a Rwandan National Identity card and so would not be able to renew the passport

8. The applicant’s submission of 17 May 2021 produced country information concerning identity documents in Rwanda:

   The Immigration and Refugee Board of Canada states that the method for applying for a National ID card in Rwanda changed in 2007:

   The Official at the Embassy of the Republic of Rwanda in Washington, DC also clarified that Rwandan
   identity cards are light blue and that text on the card appears in both French and Kinyarwanda
   languages. The Official explained that the authority to issue an identity card lies with the local
   administrative division known as the commune (Rwanda 18 May 2007).
   The Official at the Embassy of the Republic of Rwanda in Washington, DC also explained that
   following the genocide, the government began to issue new identity cards in 1996 (Rwanda 18 May
   2007). These post-genocide identity cards, which are described above as "new" identity cards, were
   issued until 2006 (ibid.). The government stopped issuing this identity card in 2006 so that it could
   introduce a brand new identity card (ibid.). This newest card will reflect Rwanda's new administrative
   structure and include more comprehensive information about the bearer (ibid.). The Official indicated
   that there was, as yet, no set date when the government would begin to issue the new cards, but indicated that they were "in the pipeline" (ibid.).
   With respect to the "attestation d'identité" signed by the burgomaster, the Official explained that
   while the burgomaster's signature was previously necessary in order to apply for an identification card, this is no longer the case (Rwanda 18 May 2007). In order to obtain an identity card, an individual must now have their application signed by a local government administrator, known as a local sector leader (ibid.). This paper then goes in a file, which is transferred through the government's administrative hierarchy in order to have the card issued (ibid.). A description of the burgomaster's attestation and a description of the document signed by a sector leader could not be found by the Research Directorate within the time constraints of this Response.

   The Republic of Rwanda IREMBO website outlines how Rwandan citizens can obtain National ID:

   This eservice enables Rwanda citizens to apply for a national ID. In order to apply for an ID a citizen
   must have an Application number provided to the parents at the sector office at the time of
   registration. You shall be required to visit a sector office to provide biometric data, before you can
   receive a National ID. A citizen who does not have the application number should carry any form of
   Identification such as school ID or baptism card and reach out to the nearest sector office to request
   application number from the Civil Registration officer (CRO) before applying for the National ID.
   Who can apply?
   A Rwandan citizens living in Rwanda
   Note: Rwandans living outside Rwanda will have to visit the NIDA Headquarters in Rwanda for ID
   application.
   Citizen Journey
   1. If you know your application number:
   a. Apply online or dial *909#, to begin your application.
   b. Select a date, district and a sector of your choice where you shall want to provide your data
   biometric data
   c. Once you submit your application, you shall receive an SMS confirming your application and
   directing you to pay. Pay using Mobile Money on MTN (*182#), Airtel (*182#) or Tigo (*310#) or Mobicash, or visit a BK branch or agent close to you; you will receive a payment confirmation via SMS and/or email.
   d. After successful payment your application will be submitted to NIDA. Ensure that you do not miss to go to the sector for bio metric data capture on the date you selected, as you shall not receive a National ID unless you have provided biometric data.
   e. After capturing your biometric data, NIDA shall produce the ID card within a period of 1 month.
   Note: You can check the status of your ID production by dialing *909*1#.
   2.If you do not know your application number
   a. Go to your sector with any identification such as a student’s ID or baptism card and ask the
   civil registration Officer to give you the application number.
   b. If you are not found in the system or are not registered, proceed to apply for registration of
   citizens above 16 click here
   c. Once you have been given your application number follow steps (a)-(e) above to apply for
   your national ID card.

   In 2016, the Rwandan government cracked down on Congolese refugees in possession of Rwandan
   identification:

   Rwanda is planning a major crackdown on Congolese nationals, who have illegally acquired Rwandan national identification, an act that jeopardises their privilege as refugees.
   Under the United Nations High Commissioner for Refugees (UNHCR) guidelines, refugees are
   supposed to get registered and acquire a refugee identity card that offers them refugee status in
   order to get full benefits which include shelter, food and protection, as “stateless persons” in need.
   The Minister of Disaster Management and Refugee Affairs (Midimar), Seraphine Mukantabana,
   recently told parliament that the ministry has asked the refugees to hand in the Rwandan
   identification, but none has done so claiming to have lost them.
   Ms Mukantabana said “They (refugees) acquired these identifications illegally. We are going to start
   an investigation into those possessing the IDs and their refugee status will be revoked and we will
   send them back to their countries.”
   The minister also said that this will be the same case with those who still possess Democratic Republic of Congo (DRC) national identification, which undermines the efforts of government to treat them as stateless people in need.
   A report by the Rwandan parliament on refugees status 2014/15 shows that some Congolese refugees managed to illegally acquire Rwandan IDs and while some still hold on to their Congolese National IDs which they use to benefit from government services and even travel back and forth respectively.
   These cases have been cited among Congolese refugees especially those living in Kigeme camp,
   Nyamagabe district in the Southern province, part of the over 74,000 Congolese refugees who live in
   the camps of Kigeme, Gihembe, Nyabiheke, Kiziba and Nkamira.
   Kigeme camp is one of the oldest camps holding Congolese refugees located on the highway between
   Butare and Cyangugu.
   It is believed that the Congolese refugees got access to the Rwandan IDs using some their extended
   families in the Rwandan community, who were part of former Rwandan refugees returning to
   Rwanda and had settled in.

9. In sum, I give great weight to the hearing and find the applicant is a credible witness. I give him the benefit of the doubt and accept his claim that he obtained the genuine Rwandan passport improperly. I accept that he had not acquired Rwandan nationality and citizenship and that he had never been issued a Rwandan National Identity Dard card. I accept that he had not been entitled to a Rwandan passport and he would not be able to renew the expired passport. I accept that he has not relinquished his DRC citizenship. I find he does not have a right to enter and reside in Rwanda, and so I have not assessed him against Rwanda.

10. DRC is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing his claims against the complementary protection grounds. Having considered the material before the Tribunal, I accept he has the claimed identity.

    Family relationship with his [relative]/adoptive father [Mr A]

11. I accept, as did the delegate, that the applicant’s [relative] is [Mr A] and that when the applicant was born [Mr A] had taken on the responsibility of looking after the applicant in the absence of the biological father.

12. I accept, as did the delegate, that the applicant’s [relative, Mr A] held an administrative position under General Nkunda, but had been forced to flee once Ntaganda took over the CNDP. [Mr A] has subsequently been given Australia’s protection, and he gave evidence at the hearing. I accept that [Mr A] has a medium to high anti-government profile in DRC, the adverse attention of the DRC authorities, and the ongoing enmity of non-state actors.

13. I accept that the applicant’s familial relationship with [Mr A] is widely known amongst those in the DRC who have an adverse interest in [Mr A].

    The applicant’s claims of harm in DRC

14. Having considered the material before the Tribunal, including the applicant’s and [Mr A]’s evidence at hearing, and in light of my finding that the applicant is a credible witness, I accept that the applicant has faced harm in DRC:

    ·Early [Year 1]-1994   He and his mother/brother lived with [Mr A] in [Village 1] until Rwandans began killing Congolese Tutsis in 1994; brother [Master B] murdered

    ·5/1994   He and his mother fled from [Village 1] to [Location] in [Territory] where the applicant’s grandfather lived

    ·6/1995   He and his mother and his grandfather fled to [Town 1], then [Country 1], and then to Rwanda after hearing that the Interahamwe (Rwanda genocidal criminals) were coming

    ·2011    He doesn’t realise [Mr A] has fled DRC, he goes to [Village 2] DRC to see [Mr A], meets aunt [Ms G] who was visiting from Goma. Then they heard Ntaganda’s soldiers aware they in [Village 2] and they thought he was [Mr A]’s son. He and his aunt flee through bush to Goma (where aunt had a [shop]) and after a few days he crossed to Rwanda where the applicant continued his studies

    ·20/11/2012     He visits aunt in Goma during holidays; learns on 20/11/2012 that Ntaganda had taken Goma and people fled. He and the aunt flee to [Town 1], then they cross into [Town 2]

    ·[9]/2016   Three masked men attack him, his mother and grandfather at home at night; they say will kill him and family due to [Mr A]’s conflict with Ntaganda; grandfather killed, applicant hit head and loses consciousness, attackers flee

1. I accept that other close family have fled including that his mother and sisters have fled to [Country 1]. 

   Conclusion

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

3. Having considered the claims and evidence I find that the applicant is a DRC national. He is a mature man, of Tutsi ethnicity. I accept that he has faced harm in DRC that caused him and his family to flee their home area and the country. His brother was killed in 1994 and the family fled from [Village 1] to [Location]; in June 1995 the family fled to [Town 1], then [Country 1], and then to Rwanda. I accept that on two occasions the applicant fled from DRC during family visits: in 2011 when he fled [Village 2] to Goma and then to Rwanda; in November 2012 when he fled from Goma to [Town 1] and then to [Country 1].

4. I accept that in DRC he faces ongoing adverse attention because of his familial links with [Mr A]. He is perceived to be [Mr A]’s son and this has led to him being targeted on two occasions, in 2011 when he fled [Village 2], and [in] September 2016 when he was attacked and the grandfather killed. 

5. In light of his Tutsi ethnicity and his strong and widely known familial link to [Mr A], I find there is a real chance the applicant would be imputed with an anti-government political opinion in DRC and face the adverse attention of the DRC authorities. The adverse attention of the DRC authorities and their agents is consistent with foregoing country information cited that shows nationals with an anti-government profile and particularly those with a higher profile- have been targeted and harmed over a long period in DRC.

6. I find because of his Tutsi ethnicity, his family link with his [relative, Mr A], and his past and ongoing political profile, actual or imputed, the applicant has faced violence in DRC in the past and there is a real chance that on return to DRC the applicant would be detained on arrival, interrogated, and harmed in prison. Having considered his personal circumstances and in light of country information I find there is a real chance he will face serious harm from DRC authorities and their agents when he enters DRC, or after he leaves the airport and enters the community.

7. For the purposes of s.5J(1), I find the applicant fears being persecuted for reasons of race, membership of a particular social group and political opinion. I find there is a real chance that if he returns to DRC he would be persecuted for one or more of the reasons. I find the real chance of persecution relates to all areas of DRC including Kinshasa, and there are no effective protection measures available to him as the persecution would be perpetrated by the DRC authorities, as well as other non-state actors (s.5J(2)). The real chance of harm to the applicant amounts to serious harm in that he faces a threat to his life or liberty, significant physical harassment and/or ill-treatment, and a threat to his capacity to subsist, denial of basic services and/or denial of capacity to earn a livelihood (s.5J(5)). The s.5(1)(a) reasons I have outlined are the essential and significant reasons for the persecution that would involve systematic and discriminatory conduct.

8. 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

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

   C. Packer
   Member

   
   

   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.

   …

   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.

   …