2000283 (Refugee)

2000283 (Refugee) [2024] AATA 4294 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Patrick O'Connor (MARN: 1805789)
CASE NUMBER: 2000283

COUNTRY OF REFERENCE: Congo, Republic (Brazzaville)
MEMBER:Denis Dragovic
DATE:31 July 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 31 July 2024 at 8:32am
CATCHWORDS
REFUGEE – protection visa – Republic of Congo – political opinion – supporter of former president Lissouba – Pan-African Union for Social Democracy (UPADS) activist – arbitrary detention – Western education – community group leadership – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
S395/2002 v MIMA (2003) 216 CLR 473
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 December 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are citizens of the Republic of Congo. They applied for the visas on 5 October 2016.
The first and second named applicants appeared before the Tribunal on 19 July 2024 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicants and noting that they reside in [State 1]. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. Advance notice was provided to the applicants’ representative of the hearing being planned for via video conference. No objections were raised.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The first named applicant (‘the applicant’), [an age]-year-old man, was raised in a family of [number] children in the Republic of Congo (“Congo”). His father passed away in [specified year], his mother in 2010. [One sibling] passed away in 2018. [One] sister is alive, but he claims not to know her whereabouts. When I asked if he had engaged the Red Cross tracing services to help find her, he said that he hadn’t and that he wasn’t aware of it. His [other sibling] who works as a lawyer, moves around West Africa and does not return to Congo for what the applicant claimed to be security reasons.
The applicant said that [the sibling’s] family and children are staying in the border area between Congo and Gabon. [This sibling fears for their] security are claimed to be in part the same as [the applicant’s] own, namely their ethnicity.
The applicant was raised in [Town 1], a town about [distance] away from the birthplace of the former president, Pascal Lissouba. The applicant claims that people are tarnished by this geographical proximity. In addition, the applicant claims to be a supporter of Pascal Lassouba.
Relevantly, Pascal Lissouba was the former democratically elected president of the Republic of Congo. A brief summary of the political history at the time provides some relevant context:
In 1990, labor disputes and popular resentment of the regime empowered opposition leaders to demand democratic reforms. Sassou Nguesso consented to the convening of a National Conference, which elected a temporary government and gave the new multi-party state the name of the Democratic Republic of the Congo.
However, the new president, Pascal Lissouba, elected August 8, 1992, was quickly met with political trouble while forming his coalition government as Sassou Nguesso and defeated presidential candidate Bernard Kolelas attempted to undermine Lissouba with a power grab in the prime minister elections. Lissouba countered with a plan to dissolve parliament and stage new elections.
Loud opposition from Kolelas and Sassou Nguesso supporters led to violence as clashes between protesters and police turned into an ethnically-driven civil war. Although UN mediators attempted to bring stability to the country, Sassou Nguesso eventually seized power from Lissouba again in a 1997 coup d’état.[1]
[1] >
Ethnically, the applicant is of the Bakongo tribe and the [Sub-tribe 1]. He described everyone in the south of the country being of the Bakongo tribe and those in the north being part of the Mbochi tribe. According to the applicant, the dividing line between the norther and southern tribes runs through Brazzaville. The applicant said that he and his wife can be identified as coming from southern tribes by their names and language that they speak. The applicant gave an example, described below as the 1995 check point incident, in which the guards asked the applicant to speak some words of their tribal language to assess whether he was a northerner or southerner.
The applicant described [Town 1] as having had a population of a hundred thousand or more before, but many people were displaced and so the population now is between 10,000-20,000. He claims that none of his family live there anymore.
While still young and living in Congo, the applicant moved to the country’s economic centre, Pointe Noire, in approximately [year]. He said that he started carpentry in [Town 1] but didn’t like it. As [one] sister was living in Pointe Noire, she invited him to come. There he started ‘General School’. Upon completion he was accepted into university in the capital Brazzaville, where he studied [subject 1] [between specified years] having completed a [degree].
While at university the applicant was involved in local politics. He claimed to have been a member of UPADS (Pan-African Union for Social Democracy) [between specified years]. During the early years of this period, he claimed that some members were targeted by the Sassou government. He described UPADS as the main opposition party until the change of government in 1992. His role was a youth leader. He claimed to have participated in meetings, leadership coordination and campaigning.
The applicant claimed that he joined UPADS because he had a passion for politics. He joined UPADS, he opined, because he was born close to the village where Pascal Lissouba was born and so there was an ethnic bond.
Country information indicates that as Congo unshackled itself from Marxism and the dominance of the prior political regime through the 1992 election of Lissouba the new democratic environment didn’t lead to competing political manifestos but rather a vote along ethnic lines.[2]
[2] ibid
The applicant’s political activities as a youth leader were limited to [his named faculty] where he claims to have become known as kojito (someone who can bring people together and give speeches). He was also involved in politics in the suburb where he lived by doorknocking and passing flyers around during the 1992 campaign. His political reporting line was through to the sectoral leader of the youth. I suggested that his description of his roles and responsibilities indicated that he was quite low level. He said that the role he played on campus was significant as universities in Africa are packed with students and mobilising people on them was an important role.
In 1992 Pascal Lissouba won democratic elections and became the president of the Republic of Congo, but a low intensity conflict began as some groups accused Lissouba of rigging the elections.[3]
[3] ibid
During this period, beginning in 1992 the applicant described having to move around to remain safe. He said that he would hear shootings at night and that once a bullet fell on his roof, piercing the roof. As a result, he moved to another suburb, where he stayed for about three months, and then moved again, moving from suburb to suburb, until he left Brazzaville. He said that he didn’t go to university regularly as the whole period that Loussaba was president there wasn’t calm. He said that this effectively began in 1993 and continued through to 1995 when he left Brazzaville. I asked how he could campaign if he was not at university regularly and was often moving. He said that he campaigned a lot in 1992, but then reduced his activities.
The applicant provided a detailed description of having his life threatened by militia at a checkpoint in 1995. He described it as a random event that was based on his ethnicity. The event involved the applicant and his friend wanting to move across the conflict lines during a lull in fighting but as they did, he and his friend were threatened and were about to be executed were it not for the intervention of an elderly man. I have not recalled this incident extensively for the reason that I accept that it occurred as described by the applicant but note its relevance only in so far as it emphasizes the deep fissures of ethnicity in society rather than it supporting any view of the applicant facing a well-founded fear of harm, into the reasonably foreseeable future arising from this past event.
In 1995 the applicant returned to Pointe Noire where he worked for five years with various companies. He described his life as good from a personal perspective, but the security situation was problematic. Denis Sassou Nguesso took power in 1997 following fighting between the government forces under Lissouba and Sassou’s militia. In October 1997 the intervention of Angolan forces in support of Sassou led to Lissouba fleeing the country. Lissouba remained living in exile until he passed away in 2020.
While in Pointe Noire the applicant claimed that he continued with politics by raising awareness and keeping the momentum going.
I asked whether he was offered a role in the government noting that he was claiming to have played a ‘significant’ role in the campaign. He said that he wasn’t offered a job. I note that country information indicates that clientelism is a ‘strong’ feature of the political party system in Congo.[4] He said that back then there was so much going on among the leadership trying to set the agenda for the president that there wasn’t an effort to bring in people from different sub-tribes. I suggested that this is unlikely and reminded him that he had earlier explained that the country was divided by tribalism and that as such it would be more likely that the new president would fill positions accordingly. He said that it probably happened, and that he thinks that being a part of UPADS and the president’s tribe helped him to get a job. I find that the applicant wasn’t offered a job is indicative that he hadn’t played as significant a role as he had claimed.
[4] >
I noted that the applicant remained in Congo for a few years after Sassou took power. He said that at that time the security situation wasn’t good, that he didn’t feel safe. He said that Sassou saw anyone who was against the ruling party as enemies. I noted that he wasn’t in hiding, he remained living in the same place and went regularly to work and yet he wasn’t targeted. The applicant claimed that Sassou used different structures to look for people and that it was 50:50 chance of survival for him. I also noted that he left for [Country 1] without any problems at the airport. He said that the situation on the ground was not 100% secure, but more or less safe for him to leave.
The applicant remained in Congo through to late 1999 or early 2000 when he was accepted into [an academic] program at [a named university] in [Country 1]. He claims that he left Congo not just because he wanted to pursue his studies but also because he felt that it wasn’t secure.
The applicant did not return as a permanent resident to Congo since, visiting only twice in the past twenty-four years.
The applicant’s first return to Congo was in 2006 when he stayed in Pointe Noire and Brazzaville. He said that the reason he returned was to renew a passport as Congo did not have the option of obtaining new passports overseas. He said that he stayed for less than eight weeks and that the conditions were stable at the time. I asked why he thought that he didn’t face any problems despite believing that he has a political profile. He said that it is because the situation was less severe then than it is now.
In May 2010 the applicant arrived in Australia to study a doctorate on a scholarship with [University 1].
The applicant returned, again, to Congo in 2014. He passed through immigration without encountering any problems. When this was put to the applicant, he said that he had an arrangement with a friend whom he and his wife had met while studying in [Country 1]. She was claimed to be the partner of a general in the police force and according to the applicant she had arranged for their travel to be unimpeded and for them to access a passport without problems. The applicant claims that this woman met them at the airport and facilitated their passports including having the identification office open on a weekend so as to allow them to access the necessary documents without facing any additional scrutiny.
The applicant had written in his submissions that he was required to pay a bribe, when we discussed this he initially said that they didn’t pay any bribes and that the woman had facilitated the process through her contacts but later he clarified that he did pay money but that he saw this more as an opportunistic shake down that everyone encounters as there is corruption at every level. I place no weight on this apparent inconsistency as I find it reasonable that the applicant’s perceptions of what is a routine shakedown as opposed to a targeted bribe would be different.
Since in Australia the applicant has been involved in multicultural activities and the African and Congolese diaspora.
The applicant is [an official] of the [Community Organisation 1] which was incorporated in 2018. [Details deleted].
The applicant is [an official] of the [Community Organisation 2].
He is [an official] of the [Community Organisation 3].
He claims to be an advisor to the [Community Organisation 4] and a general member of the [Community Organisation 5].
Regarding the [Community Organisation 1] group, the applicant described it as having a diverse membership with [the majority] being from the south and [a minority] from the north or mixed heritage. He said that most took the path of coming to Australia via Gabon and then onto New Zealand where they became citizens before moving to Australia.
The applicant believes that his role as the head of the organisation will cause him problems as some of the members are ex-military officers who served under Lissoubu while others who have a mixed parentage and have served under the current President. The applicant believes that the latter group joined because of his leadership style which is focused on unity within the diaspora. He said that the concept of unity is not promoted by the current President.
The applicant provided a speech he gave in 2019 to showcase his political views and what he believes will lead to him facing trouble. I described the speech as being neutral and asked for his comments. The applicant said that when someone with political activities goes overseas, they are perceived to become a threat if they are to return. People believe that when others with political histories go overseas, particularly to the West, they gain political knowledge that can be applied to bring down a government. He said that in Africa there is a long record of people who go overseas and come back with such ideas.
Not only does the applicant believe that his speech is known to the government of Congo but that his actions to expand the [Community Organisation 1] to New Zealand are also known. He believes that it is known only because of the nature of the organisation’s membership and that someone would have passed it along. The applicant does not have any evidence to support these claims.

The applicant said that educated people are targeted by the current government in Congo because the leaders are afraid of educated people. I noted that there are educated people who work for various national and international organisations and corporations, particularly the oil companies. He distinguished people with an education and those who are perceived to be political leaders. He said that some people arrive from overseas and are arrested. He noted that most university professors are forbidden from exercising freedom of speech or to criticise the government or raise issues such as corruption. He believes this to be the case because such people are more educated than the leader or the head of a political party and as such would be listened to. He believes that when someone wants to voice up or speak out, the government will track them down.
The applicant provided to the Department three summonses which name the applicant. The first was dated August 2019. I asked how he had obtained them. He said his [nephew] was given it. He believes that the authorities are looking for him. He said that Congo is a small country, and it was easy for the authorities to find his nephew. He said that he has now lost contact with his nephew but at the time he was living in Pointe Noire. The applicant believes that the summons were for reasons of him being a person of interest. He said that in Congo they go after family members to give them a hard time when the targeted person is out of reach. But I noted that they hadn’t gone after him when he was in Congo at any time in his past. He concurred but added that it was a form of intimidation.
I asked why the authorities, who he is claiming know of his activities in Australia and hence his presence in Australia, would expend the resources to seek out his nephew to give the summons. The applicant said that he has been thinking about the same questions for months and years. He said that that nephew once lived with him suggesting that this may be a factor.
I noted to the applicant that he had responded to a Departmental request for information on 27 November 2019 and had not mentioned the summonses. He said that he didn’t have them at that time and only received them in January 2020. He said that he had to have them translated and as such they weren’t passed on to his lawyer until April 2020. I noted that the protection visa decision is dated 16 December 2019 and as such the timing of the claimed summonses is suspicious considering that there had not been any interest in the applicant for over a decade and even when living in Congo, he did not face any harassment or harm.
The applicant believes that the timing of the receipt of the summonses is related to his activities in Australia as he incorporated the [Community Organisation 1] body in 2018. He believes that some people in his group would have leaked the information. I put to him that were that the case then the authorities would have known that he was in Australia, and again wondered aloud as to why they would seek out the nephew and send him the summonses. He said that it is the norm.
I find that the applicant’s narration of his past is credible and as such accept the events and occurrences as he has described.
I do not accept that the summonses are legitimate. It is improbable that the authorities would be interested in the applicant some twenty years after he left the country, and it is highly improbable that the interest would arise a month after the rejection of his protection visa application while his activities with the [Community Organisation 1] group had already begun two years earlier. That the authorities would on the one hand know of the applicant’s activities in Australia but at the same time seek out the nephew and leave a summons for the applicant in Pointe Noire adds to my concerns. When considered as a whole I find that the applicant has provide false documents to the Tribunal.
Country information
I noted to the applicant that the presidential election held on March 21, 2021, was reportedly peaceful and as such this was indicative of a situation in which the political landscape was not hostile.[5] The applicant said that when there is an election, the authorities cut off the internet and turn off television broadcasts to prevent the spread of news of arbitrary arrests and detentions. He disagreed that it was peaceful. He said that it was a rigged election and a lot happened. The applicant’s claims of the internet and media being shut down align with reporting on the election.[6]
[5] ibid
I noted to the applicant that in reviewing the news and in particular the Africa News website under the Congo Brazzaville section there is no reporting of any conflict for as far back as I could go. He said that the government uses micro-strategies to suppress the opposition and so they avoid large scale conflicts. In addition, he said that a lot goes unreported. He claimed that during the 1992 to 1997 troubles 10,000 people were reported killed but he believes the figure to be triple that figure.
I put to the applicant that research undertaken by the Australian government found in 2019 that there was no evidence of supporters of former president Lissouba facing harm. I asked if he had any evidence to support a claim that they are being targeted. He said that he has names of people who were tracked down because of their support for the opposition.
Country information on Congo that was submitted by the applicant detailing shortcomings in the political and human rights environment are detailed in the United States’ State Department Human Rights Report on the Republic of Congo. In its executive summary, the report notes that there were ‘credible reports’ of:
unlawful or arbitrary killings, including extrajudicial killings; torture or cruel, inhuman, or degrading treatment or punishment by the government; harsh and life-threatening prison conditions; arbitrary arrest or detention; political prisoners or detainees; serious problems with the independence of the judiciary; arbitrary or unlawful interference with privacy; serious restrictions on free expression and media, including unjustified arrests or prosecutions of journalists and censorship; substantial interference with the freedom of peaceful assembly and freedom of association; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government corruption; serious government restrictions on or harassment of domestic and international human rights organizations.
…
The government took limited steps to prosecute or punish officials who committed human rights abuses or acts of corruption, and official impunity was a problem.
While this summary presents an indictment on the situation in Congo, the nuances of the report suggest that due to the limited insight into the workings of the authorities there are questions over the extent of these violations and whether they are investigated. For example, with regards to the arbitrary deprivation of life, the report states that there is ‘uncertainty regarding the frequency of the incidents and the number of persons arbitrarily deprived of life.’ Similarly, with the number of political prisoners, ‘There were reports of political prisoners and detainees, although verifiable estimates of their total number were not available.’ With regards to government actions to punish those officials responsible for human rights violations, there is some evidence that action is taken: ‘In February the court convicted five police officers of torture that led to the death of one detainee and left a second detainee disabled. The officers were sentenced to five years of forced labor.’ But there isn’t an insight into what extent such investigations occur and are conducted at arm’s length from political interference.
In reviewing the country information submitted by the applicant, of which the above is a representative sample, I find that there is limited insight into the operations of the Sassou government. It is not clear whether opposition to the government is a deeply rooted movement and the counter crackdown widespread or that for whatever reason the tensions that have in the past caused low level civil conflict have dissipated and what remains is a strong government that doesn’t sense a threat from low level political opposition. If it is the latter, then the repercussions to those imputed to be opposition figures, such as the applicant, may not be great but were it the former then he would be at risk.
In resolving this dilemma, I note that the State Department report appears to show a government that is quick to react when there is any sign of opposition, examples in the 2022 reporting period being:
A television station being shut down when it broadcast the opposition leader calling for the release of political prisoners.
Limitations being placed on international human rights and humanitarian organisations from access to political prisoners.
The government refusing to acknowledge that they held any political prisoners.
The arrest of Alexandre Dzabana Ibacka who was a human rights campaigner
Based on the opacity of the government and the available evidence suggesting that it is quick to react to any high-profile criticism, I find that the government’s stance towards someone of the applicant’s profile does pose a risk and that the reported actions of the Congolese government are relevant to the applicant’s case.
Considerations
Any harm arising from past political activities
The applicant fears harm arising from his past activities in Congo, his immutable characteristics such as his ethnicity and his actual and imputed current and future political activities.
With regards to the applicant’s past political activities, he claimed that his contributions to the Lissouba campaign were substantial, but I note that the evidence he provided indicates that they were far more minor. He acknowledged that his campaigning was limited to the period during the election as afterwards he wasn’t regularly on campus and moved around from suburb to suburb. He then moved to Pointe Noire where he remained for over two years under the presidency of Sassou but was not harmed nor sought out. The applicant was not offered a role in the Lissouba government, which again indicates that he did not play a significant role. He left Congo under his own name to travel to [Country 1] in 2000, without facing any challenges, and returned in 2006, remaining for about eight weeks and was not sought out or harmed.
While the applicant claims to have required protection in the form of arrangements made by his friend as he returned in 2014, the impact of this intervention will never be known. That the applicant was not of interest to the same authorities closer to the period when he was politically active is strongly indicative that he would not have been of interest as more time had passed. Based on the applicant not having experienced any harm when his actions would have been more known, now, some twenty-four years after his campaigning, I find that he would not be known for his past activities and as such he does not face a real chance of serious harm or a real risk of significant harm arising from his past political activities while in Congo.
Harm arising from future political activities
There is evidence that the Sassou government detains opposition supporters, human rights defenders and activists.
Parfait Mabiala, supporter of the opposition movement “Incarner l’espoir” has been in jail since his arrest on 23 November 2019 in Pointe-Noire.
Three others, Franck Donald Saboukoulou Loubaki, Guil Miangué Ossebi and Meldry Rolf Dissavoulou were later arrested between 13 and 17 December 2019 in Brazzaville.
Celeste Nlemvo Makela, an activist with the citizen movement Ras-Le-Bol was arrested on 22 December 2019.[7]
[7] >
Since the last conflict in 2016 through to 2018 it is reported that tensions have ‘cooled as President Denis Sassou Nguesso and his regime have solidified their reign and consistently repressed or co-opted opposition figures.’ Reports indicate that two senior opposition leaders Marie Michel Mokoko and Andre Okombi Salissa were sentenced in 2018 and 2019 respectively, for threatening state security and remain imprisoned, but their profiles are substantially different to the applicant’s.
An Amnesty International Central Africa researcher stated in 2020:
In a country where the authorities claim to promote human rights and deny the existence of political prisoners and prisoners of conscience, what we have seen in the last years and what we are now witnessing clearly shows an ongoing detention of opposition supporters, human rights defenders and activists. This is a sign that the authorities are intensifying the onslaught on dissenting voices,” said Fabien Offner, Amnesty International’s Central Africa Researcher…These politically motivated arrests are especially alarming because several opposition candidates, human rights defenders and activists that have been arbitrarily arrested since the 2016 election are still in prison. The Congolese authorities are again attempting to use harassment and prosecution as tools to silence opposition. [8]
[8] ibid
Another Amnesty International report notes the arrests of ‘senior campaign officials’ of opposition parties after the 2021 presidential elections and that ‘In Pointe Noire at least 10 young activists have been arrested since the elections.’[9]
[9] >
Freedom House notes that ‘The Sassou Nguesso government routinely uses military and police forces to intimidate citizens. Employers engage in widespread discrimination in hiring and regarding other decisions, based on political beliefs.’[10] I asked the applicant what type of discrimination he would face in Pointe Noire considering that it is the economic hub of the south where he has worked before, and he now has far greater experience and would be an attractive hire.
[10] >
In reviewing the country information, I accept that the political situation is tightly controlled by the Sassou government and that opposition figures are targeted and detained arbitrarily.
The applicant is not an opposition figure, he has not provided any evidence of support of the opposition since leaving Congo in 1999/2000. While he has led a diaspora group based on his own evidence it includes people from northern tribes and those of mixed heritage. While this is a small number, it is not an exclusive movement. The applicant explained that his voice of unity would not be welcomed and that it would be perceived as being in opposition to the government but there is no evidence to support this.
Quite on the contrary, country information indicates that Sassou has sought to co-opt opposition figures in an ethno-regional political environment and that he has at least voiced an intention and developed plans that ostensible seek national unity.[11] I also note that Sassou appointed Clement Mouamba as Prime Minister in 2017 and he remained in the role through to 2021. Of note Mouamba was formerly a Vice President of UPADS.[12]
[11] >
While the applicant hasn’t shown an interest in becoming an opposition figure, would he have an imputed political opinion as a perceived opposition voice? The applicant noted how his profile as an educated and specifically Western educated member of the [Sub-tribe 1] would automatically impute him with an anti-government political opinion and identify him as a possible leader and hence threat to the authorities. He fears that this would be amplified by the long history of African leaders studying abroad and bringing back revolutionary ideas.
I accept that there is a foundation of truth to all of these claims. Country information supports the view that political parties are aligned according to ethnoregional lines, that clientelism is a strong feature of the political party system[13] and that the government prioritises people from the north and advances the interests of the north over those of the south.[14] It also supports the claim that Western education is and has been tied to the concept of African elites.[15]
[13] ibid
[15] >
The country information indicates that some political figures are being targeted but it doesn’t appear to be widespread. It appears to be focused on the opposition leaders and those close to them. The applicant is neither. But this could be the case because junior political opponents are dealt with earlier in their career trajectories before they become political leaders or alternatively because the fate of other political leaders is not reported. The situation in Congo is opaque, there is little granular reporting on such questions.
I find that the applicant’s voice would be respected among his tribe and the wider populace for the reasons of being a Western educated [degree] holder. I accept that, free from fear the applicant would be politically active. This would manifest itself through political leadership or some role in the community/tribe. The applicant has shown an aptitude for community leadership and as such I find that it is likely that he would find some success. I find that such actions and success would elevate him into a position that would garner attention by the authorities.
Free from fear the applicant would be critical of the government and particularly the President in views that would largely align with Western international NGO criticisms of the President. He has expressed such views more candidly in his speech to the [Community Organisation 1].
I find that this would lead to the applicant being targeted and harmed. I find that the harm the applicant faces amounts to a real chance of serious harm for reasons of his political opinion.
I find that his political opinion is the essential and significant reason for the harm (s 5J(4)(a)).
In considering whether the harm he faces would be systematic and discriminatory (s 5J(4)(c)) I find that it would be because the government is targeting political opposition as detailed in the country information reproduced above.
For the same reasons the applicant cannot seek protection from the state as the state is the persecutor (5J(2)).
While the applicant could minimise the chance of him facing harm by not becoming involved in politics, this requires consideration of the reasonableness of a change of behaviour. Section 5J(3) defines the relevant law when considering the reasonableness of a modification of behaviour:
(3)  A person does not have a well - founded fear of persecutionif 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.

The modification that would be required for the applicant to face less than a real chance of serious harm would be for him to not become politically active. The applicant could redirect his leadership skills to non-political areas, he could find fulfillment in other community activities both of which would lead to minimising the risk of harm, but this line of reasoning is explicitly identified in the Act as not being reasonable (s5J(3)(c)(iii)).
In S395/2002 v MIMA (2003) 216 CLR 473 Justices McHugh and Kirby noted at [40] that, ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment.’ They then explain in the same paragraph that, ‘persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.’
For this reason, I find that a modification of behaviour is not reasonable.
I find that the applicant cannot relocate as the entire state of Congo is controlled by the same authorities (s 5J(1)(c)).
I have also considered whether according to s 36(3) the applicant has ‘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.’ There is no evidence before me that citizens of the Republic of Congo such as the applicants have a right to enter and reside in another country apart from Australia. As such I find that the exception to Australia’s protection obligations under s 36(3) is not met.
For the reasons given above I am satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Denis Dragovic
Deputy President

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.
…

[2024] AATA 4294

31 July 2024

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