2014360 (Refugee)

2014360 (Refugee) [2024] AATA 4482 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Nabeel Lang (MARN: 0601921)
CASE NUMBER:  2014360
COUNTRY OF REFERENCE:                   Democratic Republic of Congo
MEMBER:Samira Kamandi
DATE:9 October 2024
PLACE OF DECISION:  Perth
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 applicant satisfies 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 09 October 2024 at 2:56pm

CATCHWORDS
REFUGEE – Protection Visa – Democratic Republic of Congo – religion – Christian – anti-government political opinion – political opinion against the atrocities committed by the authorities – past torture and trauma – unresolved mental health condition – applicant has a well-founded fear of persecution – membership of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THE REVIEW

The applicants are a husband (the applicant) and his wife who are citizens of the Democratic Republic of Congo (DRC).
The applicant was born in [year] in Bukavu/South Kivu in the east of DRC and his wife was born in [year]. They met in 1969 and married on 18 July 1970 in [City 1]. They have 3 children: a son who is an Australian citizen and 2 daughters who remain in the DRC.
The applicant was consecrated as a pastor in 1987 and served as a pastor at the [Churches] in Central Africa, [from] 1987 to 1998, and at [a location] from 1998 to 2016, located in Bukavu, South Kivu.
The applicants arrived in Australia in October 2016 and lodged an application for protection visas on 6 April 2017.
On 16 September 2020, their application for protection visas was refused by a delegate of the Minister for Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of the delegate’s decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
The applicant’s wife does not raise her own claims for protection and relies on her membership of the applicant’s family unit.
The applicants’ protection visa application includes a statement by the applicant dated 1 April 2017, outlining his claims for protection. In summary, the applicant claims:
·As a pastor, the applicant advocated on behalf of his church members and local community in the city of Bukavu. He saw it as his duty to support, empower, and defend the interests of his local community.
·The applicant denounced the local civil and military authorities’ various atrocities and abuse. He did this in many ways, including organising marches to protest the government recruiting children in the army by force and exploiting them; lobbying against the government’s illegal detention of people; and writing letters to the authorities denouncing unlawful killings, including the murder of several journalists.
·The applicant helped former child soldiers to find and reconnect with their families and provided them with shelter. He also counselled victims of rape at [a] Hospital in Bukavu.
·In November 2006, the applicant wrote a letter to the [senior officials], condemning the use of child soldiers by the Congolese Government. About 3 weeks later, he was arrested and taken to [a] Prison for 3 weeks. He was beaten, threatened, and tortured every day and was accused of involving himself in state security matters.
·As a result, he was forced to go to the battlefront near the city of Goma where government forces were fighting against the Rassemblement Congolais Pour La Democratie (Rally for Congolese Democracy) (RCD), Forces Democratiques de Liberation du Rwanda (Democratic Forces for the Liberation of Rwanda)(FDLR), Nyatura, and Mai-Mai.
·The applicant was forced to carry military loads on foot to different locations as the government fought rebels including the RCD. He spent eight years with the Congolese soldiers without contact with his family.
·In March 2014, FDLR forces ambushed the army and took him with them. He was forced to carry baggage and was kept for six months.
·The applicant managed to escape to Goma from where he returned to Bukavu and returned to his family after assurance that the General who had him arrested had been replaced. He returned to pastoring and resumed his advocacy work.
·On 15 May 2016, the applicant was arrested by soldiers from the Congolese security forces and imprisoned. He was beaten and tortured for 3 weeks. He was released after human rights organisations campaigned for his release.
·On 24 August 2016, the applicant was arrested by the Agence Nationale de Renseignements (National Intelligence Agency) for denouncing then-Congolese President Joseph Kabila. He was beaten and tortured and taken to [a hospital] where he was hospitalised for 3 days due to his injuries.
·In September 2016, the local police left arrest warrants at the applicant’s home which accused him of being part of the ‘Lucha insurgents’.
·From 28 September to 3 October 2016 the applicant received further medical treatment in hospital [in] Bukavu. From 3 October 2016 the applicant hid at his brother’s house in Bukavu. Soldiers went to his house looking for him in this period.
·On [date] October 2016, the applicants travelled to [two countries], arriving in [a city] on [date] October 2016 . They travelled to Australia [on] 10 October 2016 lawfully using their passports. The bus driver took their passports to border offices to be stamped.
·The applicants’ daughter and 2 grandchildren continue to live in the applicants’ home in Bukavu. The applicant has been advised that soldiers regularly come to the house looking for him.
·If he returns to the DRC, the applicant will be arrested on arrival, tortured and killed by the Congolese government. His family will be killed. The authorities will not protect him, and he cannot relocate within the DRC.
In a submission dated 6 November 2017 and prepared in support of the applicants’ protection visa application, the applicants’ representative submits that:
·The applicant is a pastor and a devout Christian who served in the ministry for almost 30 years in the [Churches] in Central Africa, helping victims of human rights abuses.
·The applicant was unlawfully arrested and detained on 3 occasions by the authorities, enduring persistent and multiple accounts of torture, beatings, and forced labour, resulting in injuries that required hospitalisation.
·The applicant was issued with multiple notices and arrest warrants by the Congolese authorities. His family faced harassment, intimidation, and threats for over a decade, and his daughter in the DRC continues to suffer such treatment.
·The applicant was persecuted by the Congolese police, military, and National Intelligence Agency, for reasons of political opinion against the atrocities committed by the authorities.
·The applicant faces a real chance of persecution if returned to the DRC due to the past incidents of persecution and the authorities’ continued interest in him after his departure supported by his daughters’ recent testimonies that he is of continued interest to the authorities.
·As a returnee to the DRC, the applicant will face mistreatment due to his past profile with the authorities, unexecuted arrest warrants, and the authorities’ continued interest in him.
The following documents were also provided in support of the applicants’ protection visa application:
·Copies, and accredited English translations, of the applicants’ certificate of marriage issued in 1970 and an extract of the Register of Declaration of Marriage, dated 22 August 1970.
·Copies and accredited English translations of the applicants’ birth certificates.
·Copies of the applicants’ daughters’ statutory declarations dated 3 August 2017.
·A copy, and an accredited English translation, of a medical certificate from [a hospital], dated 3 September 2016.
·A copy, and an accredited English translation, of an invitation from the National Intelligence Agency, dated 5 September 2016.
·A copy, and an accredited English translation, of an invitation from the National Intelligence Agency, dated 9 September 2016.
·A copy, and an accredited English translation, of a ‘wanted notice’ from the National Intelligence Agency, dated 13 September 2016.
·A copy, and an accredited English translation, of a Bench Warrant [No], dated 14 September 2016.
·A copy, and an accredited English translation of a Bench Warrant [No], 16 September 2016.
·A copy, and an accredited English translation of a letter from [Mr A] of the [an organisation], dated 26 September 2016.
·A copy, and an accredited English translation of a [letter], dated 27 September 2016.
·A copy, and an accredited English translation of a letter from [Mr A] of the [an organisation], dated 28 September 2016.
·A copy, and an accredited English translation of a medical certificated from [a named doctor], Bukavu, dated 4 October 2016.
Delegate’s decision
The Tribunal has been provided with a copy of the delegate’s decision to refuse the applicants protection visas. The applicant was interviewed by the delegate on 22 June 2020, and I have listened to the recording of that interview.
The delegate accepted that the applicant was a [Christian] pastor in Bukavu and the DRC and that his pastoral care extended to helping youth, including former child soldiers, and providing counselling and support to female victims of sexual assault. The delegate did not accept that the applicant was politically active as claimed and did not accept it as plausible that he was arrested on multiple occasions, threatened with death, or that he had to receive medical care due to having been tortured by the authorities. In addition, the delegate indicated that he had not placed little weight on the documents which were provided in support of the applicant’s claims, noting that the Department’s Document Examination Unit (DEU) was unable to determine conclusively whether the documents were genuine or not.
The delegate was not satisfied that the applicant faced a real chance of serious harm or was at a real risk of significant harm if returned to the DRC.
Further evidence provided to the Tribunal
Review application and supporting evidence
On 23 September 2020, the applicants applied for review of the delegate’s decision to refuse them protection visas with the Tribunal.
On 20 November 2023, the applicants’ representative provided the Tribunal with a further submission and supporting documents.
The submission reiterates the applicant’s claims regrading his opposition to the government of the DRC, and his past activities which resulted in his arrest, detention, and torture. The submission set out the following additional information and arguments in support of the applicant’s claims:
·The applicants undertook a medical examination by a panel of doctors in [Country 1] on 13 September 2016, for the purposes of the visa application for Australia, and returned to the DRC on 16 September 2016. While they travelled to [Country 1] by bus, they did not alight from the bus at any border crossing nor personally go through any departure or arrival formalities. They paid the bus driver to facilitate their travel to and from [Country 1].
·The applicants are not able to relocate to [specified countries] to escape persecution. They have no legal right to remain in those countries nor have any support networks or the ability to work and support themselves away from the DRC.
·The applicants speak Swahili and have had to rely on the services of interpreters to communicate in English, mainly family due to the high cost of interpretation services. This has had a negative impact on their ability to verify the accuracy of information in their statements and other documents provided in support of their application.
·The letter received from Kenya about the applicant’s disappearance in 1996 could not have been verified by the applicant’s wife who is illiterate and accepted the letter on face value with no intention of providing a false document to her son to provide to the Australian authorities.
·The applicants’ daughter disappeared in December 2020. The applicant’s family have made inquiries about her whereabouts with the police and security agencies and have not been able to obtain any information in this regard.
·In January 2022, the applicant was informed that one of his neighbours had been killed, which has caused the applicants distress and fear about returning to the DRC.
·The applicants have been attending counselling for torture and trauma in Australia.
·The applicants’ age would make it difficult for them to survive in the DRC.
·The applicant has suffered persecution in the past, has provided a credible account of his experiences, and is unlikely to survive any further periods of imprisonment and torture.
The Tribunal was provided with reports from a senior counsellor of the [organisation] dated 24 February 2023 and 11 April 2023. The reports indicate that the applicants were referred for trauma counselling by a case worker at the [Organisation 1] and assessed eligible for trauma and torture counselling in January 2021. They have attended face to face and telephone sessions and have been diagnosed with anxiety and depression.
The reports indicate that the applicants continue to suffer from the trauma and torture that they have experienced in the past. It is noted that the applicant’s presentation and expression of his trauma clearly indicates that he has experienced prolonged torture in the past, his experiences of torture and trauma has remained unresolved, and that he has managed his trauma symptoms by avoidance. It is further noted that the applicant can be easily retraumatised when his trauma memory is activated by speaking about his past torture and trauma experiences and life in the DRC, which also exacerbates his anxiety.
In addition, the Tribunal was provided with a letter from the [Organisation 1] addressed to the applicant’s son, dated 27 October 2023. The letter indicates that a tracing request case was opened on behalf of the applicants’ family, to search for their daughter, and has been sent to the International Committee of [Organisation 1] in the DRC, Rwanda, and Uganda.
Non-disclosure certificate
As noted in the delegate’s decision, the Department’s DEU provided a report indicating that their examination of the documents provided in support of the applicants’ protection visa application was inconclusive and it could not be determined whether these documents were genuine or not.
On 20 August 2024, the applicants were advised that s 438 of the Act permits the Minister, or their delegate, to issue a certificate (a non-disclosure certificate) which restricts the disclosure of some information or documents which had been provided to the Department.
The applicants were informed that such a certificate, dated 16 September 2020, exists in relation to a report obtained by the Department from their DEU. The certificate indicates that except for the ‘Summary of Outcomes’ section of the document examination report, disclosure of the report would be contrary to the public interest because it provides details of techniques used to detect instances of document fraud and its disclosure could affect the Department’s future ability to detect, and act upon, instances of document fraud.
The applicants were advised of the Tribunal’s task to determine the validity of the certificate and to consider the exercise of its discretion to disclose the information covered by the certificate. The applicants were invited to provide submissions regarding these matters.
In noting that several years have passed since the delegate’s assessment of the applicants’ claims and circumstances, the applicants were also provided with an opportunity to provide further submissions in response to the delegate’s findings and any additional information in support of the applicant’s claims for protection.
On 6 September 2024, the applicants’ representative provided the Tribunal with submissions about the non-disclosure certificate and responses to the delegate’s concerns and findings that led to the refusal of the applicants’ protection visa application.
While the submission in response to the existence of the non-disclosure certificate did not expressly address the validity of the certificate, it argued that the documents submitted in support of the applicant’s past experiences is essential/material to the establishment of the applicant’s past claims of persecution and that their materiality should be considered in exercising the Tribunal’s discretion to disclose the information the subject of the non-disclosure certificate.
It is also argued that the Department’s DEU’s inconclusive determination has irretrievably tainted the authenticity of these documents and that an inconclusive finding does not mean that the documents are fake but rather that it cannot be proved that they are either genuine or fake. In addition, the submission indicates that it is relevant to note that Australia has no Embassy or Consulate in the DRC, and therefore it is clear that no Australian government official or employee was tasked with investigating the authenticity of these documents on the ground. The inconclusive finding is based on the officials’ inability to investigate the authenticity of the documents. It is argued that without providing the applicant with the information about the process or processes used to authenticate the questioned documents, he is unable to address the appropriateness or credibility of the assessment which led to the findings of the DEU.
In addition, the applicants’ representative provided further submissions addressing the delegate’s findings which led to the refusal of the applicants’ protection visa application. I have considered these submissions in my assessment of the applicant’s claims for protection.
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.
While I have considered country information reports prepared by various other international organisations, there are no Department of Foreign Affairs and Trade reports for the DRC.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to the DRC for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to the DRC, there is a real risk that he will suffer significant harm.
Considering the applicant’s very detailed statement attached to the applicants’ protection visa application, his oral evidence at the interview before the delegate which was broadly consistent with his statement, and having the benefit of further submissions and supporting evidence, including submissions expressly addressing the delegate’s concerns, I have decided that the matter should be remitted for reconsideration. My reasons for this determination are set out below.
Analysis, findings and reasons
Country of reference
The applicants have consistently claimed that they are citizens of the DRC. They have provided documentary evidence in support of their identity and nationality. The delegate had no concerns regarding these matters. I accept that the applicants are nationals of the DRC and that the DRC is the receiving country for the purposes of this review. There is no evidence before me to indicate that the applicants have a right to enter and reside in a third country.
Non-disclosure certificate
I am satisfied that the non-disclosure certificate issued under s 438 of the Act is a valid certificate. While I have considered the applicant’s submissions regarding the exercise of my discretion to disclose the information the subject of the non-disclosure certificate for their consideration, given my findings and assessment of the applicant’s claims set out below, I have not found it necessary to exercise my discretion in this regard.
Applicant’s claims for protection – past events
In essence, the applicant claims that as part of his role as a pastor, he advocated on behalf of his community and condemned the government’s atrocities committed against the people of the DRC, specifically the government’s forcible recruitment of and exploitation of child soldiers and unlawful detention and murder of human rights activists and journalists. He claims that as a result he was detained by the authorities for prolonged periods during which he was subjected to torture and forced labour, and that he suffered injuries requiring medical treatment.
The applicant claims that he is known to the DRC authorities due to the expression of his anti-government political opinion, and that if returned to the DRC he will be subjected to arrest, detention, and torture for reasons of his political opinion.
The applicant has consistently claimed, and I accept, that he was a pastor and reverend of the [Churches] in Central Africa since 1987 and that he served as a pastor until 2016 when he departed the DRC.
In considering the applicant’s evidence provided in various statements, and at the interview before the delegate, I accept that as part of his role as a pastor he engaged in providing counselling and support to members of his community, including female victims of rape and child soldiers, and played a crucial role in their reintegration within the community and reconnecting with their families. As a leader within his community, I also accept that the applicant wrote to [a senior official], where he resided and served as a pastor, condemning the continued recruitment of child soldiers.
Country information[1] indicates that the DRC has suffered more than 30 years of conflict which has resulted in killings and the displacement of millions of people in the eastern DRC. The conflict is marked by serious attacks on civilian populations in all provinces, by the governing authorities, security forces, and rebel and militia groups; breaches of international humanitarian law committed against civilians; crimes against humanity; and genocide. The decade between 1993 to 2003 is marked by the widespread use of child soldiers by political and military leaders and militia groups. It is reported that children were forced to take part in the conflict, forced to commit violent acts, subjected to forced labour and suffered indescribable violence and deprived of their liberty.
[1] Office of the High Commissioner of the United Nations Human Rights, ‘Report of the Mapping Exercise documenting the most serious violations of human rights and international humanitarian law committed within the territory of the Democratic Republic of the Congo between March 1993 and June 2003’, August 2016; US Department of State, ‘Democratic Republic of the Congo’, 2010; US Department of State, ‘Democratic Republic of the Congo 2012 Human Rights Report’; US Department of State, ‘Country Report on Human Rights Practice’, 2016.
The 2010, 2012, and 2016 United States (US) Department of State reports on the human rights situation in the DRC reported that security forces continued to act with impunity, committing many serious abuses, including unlawful killings, disappearances, torture, rape and arbitrary arrests and detention in all areas of the country. Members of the state security forces continued to abuse and threaten journalists, contributing to a decline in press freedom. There were reports of disappearances and killings of activists, and continued harassment and intimidation of human rights activists by the government authorities.[2]
[2] US Department of State, ‘Democratic Republic of the Congo, 2010’; US Department of State, ‘Democratic Republic of the Congo 2012 Human Rights Report’; US Department of State, ‘Country Report on Human Rights Practice’, 2016.
The applicant has provided a detailed account of his experiences during the period between 2006 and 2014. His evidence in his statements and oral evidence before the delegate, in my view, has been presented in a detailed and credible manner. While I note the delegate’s concerns and findings in this regard, I have had the benefit of further submissions addressing the delegate’s concerns and reports from [an organisation] which supports the applicant’s claims of past torture and trauma, which is assessed to have remained unresolved.
Considering the country information about the situation during the period between 1996 and the applicants’ departure in 2016, I accept that the applicant, as a result of advocating for his local community, voicing his views against the authorities’ actions involving child soldiers and ill-treatment of civilians, and engaging with activities such as resettlement of child soldiers and counselling of rape victims, came to the attention of the authorities as claimed.
Considering the applicant’s detailed description of his experiences while held in detention between 2006 and 2014 and the circumstances which led to his escape from detention and return to his home in Bukavu, in the context of the country information about the arbitrary arrest and detention of civilians and activists by the authorities, I accept that the applicant was detained in 2006 and was held in detention until 2014, during which he endured ill-treatment and torture. I accept that he managed to escape in 2014 as claimed and that he was able to return to his home area after having been informed that the person in charge of his arrest and detention in 2006 was no longer in the area and that his family considered it safe for him to return and resume his role as a pastor, which he did.
While I accept that the applicant continued with his pastoral care for his community and engaged in activities that caused him further issues with the authorities, I am not convinced that he encountered further periods of detention and ill-treatment in the months prior to his departure, 2 years after having returned to his community. I found aspects of the applicant’s evidence in this regard unconvincing. While the applicant claims that he organised a rally in support of victims of sexual assault and a campaign to denounce the Congolese government, and that he was detained and threatened with death, his evidence is that he was released on one occasion due to the intervention of a human rights organisation and on another occasion due to having required hospitalisation to receive treatment due to injuries he sustained due to beatings. I find it difficult to accept that if the Congolese authorities were motivated to kill the applicant, that they would have not done so, in the 2 years that he returned to Bukavu and continued with his work as a pastor. In addition, I share the delegate’s concerns that the applicant was able to obtain medical treatment, travel to [Country 1] to undergo the required medical examination for his visa to Australia, and then granted a visa to travel to Australia, which detracts from the credibility of his claim that he was wanted by the authorities and was living in hiding.
In addition, I do not accept the documentary evidence provided in support of these claims are legitimate. As noted in the delegate’s decision document fraud is common in the DRC and I do not accept that if the authorities wanted the applicant to report to them that they would have issued him with invitations or ‘wanted notices’, given that the authorities in the DRC act with impunity and engage in unlawful arrests, detention, and killings of civilians and those who they perceive to be against the authorities.
However, I accept that he continued to condemn the authorities’ unlawful actions and the suffering of civilians and his community, and given the situation at the time, he continued to face some adverse attention at the hands of the authorities. I accept that due to his past experiences, which included prolonged periods of detention and torture at the hands of the authorities, that the applicant remained concerned for his safety. I accept that due to his profile, the security situation in the country and the applicants’ old age, their son in Australia encouraged them to leave the area and travel to Australia.
Given the past experiences, I accept that the applicant took the precautions claimed while he travelled with his wife to undertake the required medical assessment for his visa to Australia due to his profile with the authorities and the security situation, including issues around border crossing at the time, and that he took these precautions because he was fearful for his safety.
Given that I do not accept that the applicant was imprisoned in 2016 and received invitations or notices from the authorities, while I consider it plausible that they may have asked his daughters who remained at the family home about the applicant’s whereabouts, I do not accept that they came looking for him with a view to arrest and detain him or that his daughter was taken in connection with the applicant and do not give the daughters’ statements weight in this regard.
Assessment of harm in the reasonably foreseeable future
In assessing whether the applicant faces a real chance of serious harm, if returned to the DRC, now or in the reasonably foreseeable future, I have considered the applicant’s overall profile and circumstances, in the context of recent country information about the security situation in the DRC.
Recent country information reports[3] about the situation in the DRC indicate that there are no significant changes in the security or human rights situation in the DRC. The authorities continue to engage in arbitrary or unlawful killings, including extrajudicial killings and enforced disappearances. Armed nongovernmental forces continued to commit abuses, including unlawful killings, disappearances, physical abuse and other mistreatment, destruction of government and private property, gender-based violence, and unlawful recruitment of child soldiers.
[3] US Department of State, ‘Democratic Republic of the Congo 2023 Human Rights Report’, European Union Agency for Asylum, ‘National Intelligence Agency (Agence Nationale de Renseignements, ANR); treatment by ANR of individuals who express dissent or are perceived to do so against the government, including ability to track them down; availability of state protection’, September 2021 to 1 August 2024.
While I am not of the view that the applicants’ daughter’s disappearance in 2020 relates to the applicant or his past activities, I consider that it is indicative of the situation in the DRC.
It is reported that in recent years,[4] the DRC’s National Intelligence Agency are cracking down on activists; they abuse, intimidation, and arrest of journalists; and engage in abduction of individuals who express dissent or are perceived to do so against the government.
[4] European Union Agency for Asylum, ‘National Intelligence Agency (Agence Nationale de Renseignements, ANR); treatment by ANR of individuals who express dissent or are perceived to do so against the government, including ability to track them down; availability of state protection’, September 2021 to 1 August 2024.
Furthermore, the country information[5] indicates that returnees to the DRC, particularly those who have been absent from the country for a long time, are likely to be questioned by immigration officials, and in some cases by the National Intelligence Agency, at the airport. Returned asylum seekers may be questioned about their reasons for departure and having sought asylum. There have been reports of some returnees having faced difficulties on return, including harassment, demands for bribes, and detention and ill-treatment.
[5] UK Home Office, ‘Country Policy and Information Note Democratic Republic of Congo: Unsuccessful asylum seekers’, January 2020; UK Home Office, ‘Country Policy and Information Note Democratic Republic of Congo: Unsuccessful asylum seekers’, September 2023.
I accept that the applicant is a respected pastor within his community in Bukavu, where he will be very likely to return, and find that on return he will resume his role as a pastor and continue to advocate for his community and voice his disdain for the continuing human rights abuses of civilians and his disapproval of the government authorities’ actions, as he has in the past.
Considering the applicant’s past experiences and profile with the authorities and his extended absence from the country, in the context of the country information about the security situation in the DRC, I cannot discount the chances of the applicant coming to the attention of the authorities either on arrival at the airport or after returning to his area and resuming his role as a pastor, as remote.
I find that there is a real chance of the applicant being subjected to serious harm, including significant physical harassment and/or ill-treatment and being placed in detention, if he were to return to the DRC now or in the reasonably foreseeable future. In reaching this conclusion, I have placed weight on the applicant’s mental health condition, which according to the expert assessments are likely to exacerbate the risk of coming to the attention of the authorities when questioned on return. Furthermore, the applicant’s unresolved mental health condition is also likely to exacerbate the impact of any periods of interrogation or detention that he is likely to be subjected to.
I find that the harm faced by the applicant would involve systematic and discriminatory conduct carried out by the authorities, for the essential and significant reason of his actual or imputed political opinion. I also find that the applicant will not be able to modify his behaviour to avoid coming to the attention of his persecutors or being subjected to serious harm.
As the DRC authorities are the agents of harm, and in the absence of information that the applicant can seek protection from other agents given the security situation in the country, I am not satisfied that effective protection measures are available to the applicant and find that he faces a real chance of persecution in all areas in the DRC.
There is no evidence before me to indicate that the applicant has a right to enter and reside in a third country.
Refugee assessment
Considering my reasons set out above, I am satisfied that the applicant has a well‑founded fear of persecution within the meaning of s 5J of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
The applicants have consistently claimed that they married on 18 July 1970 in [City 1] and have 3 children together. They have provided copies, and English translations, of their marriage certificate and registration of their marriage in the DRC. I accept that they have been married since 1970.
I am satisfied that the applicant’s wife is a member of the same family unit as the applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of her application depends on the outcome of the applicant’s application. It follows that the applicant’s wife will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) of the Act 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 applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Samira Kamandi
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.
…

[2024] AATA 4482

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Jurisdiction