2117231 (Refugee) - [2025] ARTA 1311

2117231 (REFUGEE) [2025] ARTA 1311 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2117231
Tribunal:Clyde Cosentino
Date:31 March 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 31 March 2025 at 10:56am
CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – imputed political opinion and particular social group – married to woman of another ethnicity from another country – imputed as supporter of other country and ethnicity – harassment and discrimination, and attacks by militia group – wife, unborn child and other family members killed, house destroyed and another child missing – no family remaining in home country – name and date of birth different on one document – extensive travel to other countries – passport now expired and other documents lost – social media contact with woman with similar name as wife – consistent and credible evidence – country information – ongoing armed conflict and military administration in some provinces – local airport closed and need to enter via capital and travel by road – no effective protection measures – documentation and family/language connections needed for relocation, and bribery and arbitrary detention common – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (4)(a), (c), (5), 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Congo, Democratic Republic of (DRC), applied for the visa on 16 February 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 27 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.
BACKGROUND
The applicant is a [Age] male from the DRC.
In his statement, signed and dated 15 February 2018 and attached to his protection visa application, he states that he was born in Bukavu, South Kivu, DRC.
He states to be of the Nande ethnic group and that his ancestral village is [Village], North Kivu, DRC.
He states that his family lived in Bukavu, and that he was born in Bukavu because, at the time, his father was working there for [Employer].
He states that he was very young when his family moved from Bukavu to Goma, DRC. He states to have spent most of his childhood and early adult life in Goma.
He states that, as he grew up, he spoke Nande at home and Swahili at school and in the community.
Evidence before the Department
Protection visa application
The applicant provided the following details in his protection visa application:
·His name is [the applicant]. He was formerly known as [Former name].
·He was born on [Date 1] in Bukavu, Kivu, DRC
·His citizenship at birth is DRC.
·He speaks, reads and writes Swahili and Ki Nande.
·He belongs to the Nande ethnic group.
·He was widowed after having been married between [January] 1994 to [March] 2009. He was subsequently married again on [August] 2011 but separated in Australia [in January] 2015.
·His father, mother, [brothers] and [sisters] are all deceased.
·He has one son living in [Country 1] and one son living in Australia. He has [daughters] living in Australia and one who is missing.
·He last travelled to Australia [in] August 2013. He departed from [Town 1], North Kivu, and crossed into [Country 1].
·He arrived in Australia on a DFAT Travel Document, issued to him by the Australian High Commission, Nairobi. It was issued in the name of “[the applicant]”. He had with him his expired DRC passport.
·He applied for refugee status in [Country 1] on 1 April 2009 and his case was “registered with the Office of the Prime Minister, [Country 1]”. He was accepted as a “Mandated Refugee” in [City, Country 1] [in] November 2009. He has not lived in a refugee camp centre for refugees or a detention centre.
·He lived in [Country 1] from [January] 2009 to [August] 2013 as a refugee.
·He travelled to [Country 2] ([City]) more than 10 times for business, staying two weeks to one month per visit. He also travelled to [Country 3] during these trips, staying in [Country 3] for about two weeks per visit. He transited through [three countries] on several occasions. He travelled to Kigali, Rwanda to obtain his [Country 2] visas on each occasion.
·From [Date] to December 2005, he resided at an address (provided in his protection visa application) in Goma, DRC. He worked there in several different [jobs] as well as owning a [business] and working as [an occupation].
·From December 2005 to January 2009, he lived at [Location], Rutshuru, North Kivu, DRC. He worked there as a farmer on the family farm.
·From January 2009 to August 2013, he lived in various houses in [Location, City, Country 1]. He worked there as a street Vendor in [Country 1].
·The applicant provided a signed statement outlining his claims as follows:
oHis real name is “[Former name]”. He changed his name to [the applicant] for his safety and the safety of his children because his family were well known and his town, Rutshuru, was close to [Country 1]. He did not want to be identified by anyone in Rutshuru while he was hiding in [Country 1].
oHis actual date of birth is [Date 1], but he is aware that his passport has his birthday written as [Date 2]. His passport is genuine, but he is unsure why the wrong date of birth was put in it. He has used his passport extensively and has never had any problems with it.
oHe obtained his now expired passport at the time through an agent in the DRC.
oIn 1994 he married his wife [Ms A]. His wife was Rwandan Tutsi whose family had come to the DRC before she was born.
oThere was a lot of opposition to their marriage. He would often be excluded by the Nande community. He was accused of being Rwandan himself as a result of his marriage to her. They had opposition from, the Nande community when they had their first child. They had three more children together while living in Goma. Their mixed marriage caused anger and friction in the communities around them, because of his wife’s Rwandan Tutsi ethnicity.
oTheir life together in Goma was very good and their family business was successful. He would travel throughout the DRC to source goods for his [business]. It was large enough to sell such items as [deleted]. He also travelled to [Country 2] to source goods there. In order to do that, he would often go to Kigali in Rwanda to obtain [Country 2] visas.
oHe and his wife lived in Goma until 2005. Their children experienced bullying and harassment at school because of their mixed heritage. His wife also experienced “questioning and exclusion” because of her background. Their relationship stayed strong notwithstanding outside pressures.
oHe had considered moving his family from Kivu elsewhere but Tutsi’s (like his wife) were restricted from travelling to most parts of the DRC. There was strong anti-Tutsi sentiment in most of the Congo. For this reason, the applicant and his family had no choice but to stay in Kivu.
oIn about 2005, due to the increase of harassment and discrimination to his wife and family, the applicant had no choice but to leave Goma and go to Rutshuru, where he had family support.
oWhile living in Rutshuru, he continued to travel to Goma to operate his business. He kept his business open until the end of 2008, when he sold it. He did this because, at the time, the insecurity was so great in the area where he was living that he did not want to be away from them each day.
oIn February 2009, the Mai Mai came to his home looking for his wife. The first time they came, neither the applicant nor his wife was at home. They came again a few days later and this time the applicant was home, but not his wife. As a consequence, the applicant suffered significant harm at the hands of the attackers. As they attacked him, they abused him for his marriage to a Tutsi woman.
oThe injuries he received as a result of the attacks were so serious that he was left unconscious and woke up at [a] hospital. He remained in hospital for two weeks.
oAs a result of the attacks on himself, he moved his family to live with his parents to keep them safe. His parents lived in [Town 2] which was a town about [distance] away from Rutshuru. His parents and other siblings all lived together in a big family compound with their respective families.
oAbout one month after he was released from hospital, his daughter became sick and he needed to take her to the hospital. His wife, who was pregnant, did not come with him at the time. While he was away, his family compound was attacked by the Mai Mai. While he was walking back from the hospital, he saw his neighbours running from the direction of his house, with his two children, [Child 1] and [Child 2]. His neighbour told him that the Mai Mai had come to his house and that she had been caring for the children at the house at the time. They wanted to know where the “Tutsi woman” was (the applicant’s wife). His parents told them that she was not there. However, they searched the house and eventually found her hiding.
oThey dragged her out and killed her “by slitting her stomach and removing [their] unborn baby”. They killed his entire family except for his two children [Child 1] and [Child 2] (who escaped with the neighbour). [Child 3], his other child, was studying in Goma at the time. After killing his family, they poured petrol throughout the entire compound and set fire to it.
oWhen his neighbour told him what happened, he immediately escaped into [Country 1] with his two children.
oThey went to [City, Country 1] and approached a church for help. The church took them in and gave them shelter. They were then taken to the police station, interviewed and registered as refugees. It was through this church community that he found someplace for him to live with his two children.
oHe also approached Red Cross in [City, Country 1] to try and find his family and nephews and nieces through their tracing surface but they were unsuccessful.
oHis fear of suffering serious harm back in the DRC is not localised. In the course of his business in Goma, he travelled to other parts of the DRC. He travelled to Kisangani to buy [products]. He also travelled to Lubumbashi and Kinshasa to do business. He would meet other businessmen in Goma who knew he had married a Rwandan woman. They told the traders not to do business with him because he was using “Rwandan money”, and some traders would refuse to trade with him because of this reason.
oHe fears that the traders are still operating and travelling and that he would meet them in any part of the DRC. This would pose a danger to his life.
oHis son, [Child 3], has fled the DRC for the same reason and has been accepted as a refugee in [City, Country 1].
Supporting documents
The applicant provided the following supporting documents in support of his claims in his protection visa application:
·Copy of Refugee Identity Card – Republic of [Country 1] (in French and English - Card No: [Reference] and issued [November] 2009 in [City, Country 1]). It is signed by the “Commissioner of Refugees”. At the back of the card is written the applicant’s name “[the applicant]”. His birthday is written “[Date 1]” and his place of birth as Bukavu. It states his country of origin is “Congo”, that is profession is “Businessman” and his marital status as “Widow”. It states that he arrived in [Country 1] [in] March 2009. It appears to be officially stamped by the relevant refugee office, namely the “Office of the Prime Minister – Directorate of Refugees”.
·Copy of Refugee Family Attestation document (letterhead) from the Office of the Prime Minister, Directorate for Refugees, in [City, Country 1]. The document is signed by “[name deleted] – Commissioner for Refugees”. It was issued [in] December 2012 in [City, Country 1]. It indicates that the document is for “[the applicant]” who was born in the DRC in [Year]. It lists the applicant as a refugee from the DRC accompanied by his daughter [Child 1] and his son [Child 2], as well as his niece and two nephews. The document is officially stamped “Office of the Prime Minister – Department of Refugees”.
·Copy of passport where details are all handwritten. It has the applicant’s name as “[name]”, and his date of birth as “[Date 2]”. It was issued in 2002. In the passport are multiple entry and exit stamps including multiple entry and exit stamps exiting and entering the DRC and entering and exiting Rwanda. There are also multiple [Country 2] visa stamps in the passport.
·Copy of Australian Document for Travel – for [the applicant]; Date of birth: [Date 1]; Born: DRC. Attached to that document is an Australian visa Class UF Subclass 309 Provisional Resident visa. It also indicates that the applicant arrived in Australia [in] August 2013.
Department interview – 28 September 2021
The applicant attended an interview with the department on 2 September 2021. The Tribunal has listened to the relevant parts of that interview.
Post-interview submissions
The applicant’s authorised representative (the representative) provided submissions in support of the applicant’s claims, including submissions given post-departmental interview and dated 11 October 2021. The Tribunal notes the following specific submissions to adverse findings made by the delegate at the departmental interview:
… … …
Re: [Social media] Profile – [Ms A variation]
[The applicant] strongly denies that his wife is still alive. We attach to this submission a copy of a Statutory Declaration from [the applicant] dated 7 October, 2021.
In his statement [the applicant] strongly asserts that the woman called [Ms A variation] on his [Social media] profile is not his wife. His statement is supported by the following evidence attached to his Statutory Declaration:
Attachment 1 to [the applicant]’s Statutory Declaration is a screenshot of a picture posted by [the applicant]’s son, [Child 3] on 31 December 2015. As [the applicant] has attested in his Statutory Declaration, this is a photograph of [Child 3] with his mother, taken when she visited him at his [school] in Goma in 2008. [Child 3]’s comments on this photograph are very relevant:
“May your soul rest in Peace.” The Cambridge English Dictionary says that: this phrase is said “to express the hope that someone’s spirit has found peace after death.”
We also draw attention to the comment from [Child 2]: “love u mummy”. We submit that Attachment 1 is strong evidence that the woman in the photograph is [the applicant]’s wife (and the mother of his children), [Ms A] and that she has died. As [the applicant] has consistently stated, and as he has reconfirmed in his updated Statutory Declaration, his wife, [Ms A] was killed in 2009, the year after the photograph on [Child 3]’s [Social media] page was taken.
We further submit that there are a number of significant physical differences between [the applicant]’s wife, [Ms A] and his [Social media] friend, [Ms A variation]. To highlight some of these differences we draw the Delegate’s attention to Attachment B to this submission.
Attachment C (to this submission) contains a number of additional photographs of [the applicant]’s wife, [Ms A]. Most of these photographs have been provided by [the applicant]’s daughter, [Child 1]. They were sent to her on her What’s app account. One of the photos includes some text. An informal translation of the text is also provided below the screenshot.
In light of the availability of the photographs, and the demonstrable and significant differences between the two women, we submit that it is incumbent on the delegate to have the relevant photographs examined by a qualified document examiner prior to making any decision.
[The applicant]’s claim that his wife was killed in the circumstances he has set out in his Statutory Declaration is further supported by [the applicant]’s Refugee ID Card, which was attached to his Protection Visa Application. This document, issued on [date]/11/2009 lists [the applicant]’s marital status as “Widow” this is clear evidence that since at least November 2009, he has consistently claimed that his wife has died.
Furthermore, Attachment 4 to [the applicant]’s Statutory Declaration is a screenshot of recent calls [the applicant] has made to his [Social media] friend [Ms A variation]. We draw attention to the name he has given to her number: [Nickname] (My mother [Nickname]) – Country Information indicates that as [Ms A variation] is an older lady, it would not be polite for [the applicant] to simply address her by her name: “Elders are often addressed in local language with titles for father, uncle, mother or aunt, such as Tata (Xhosa for father) or Mama (Xhosa for mother).” Furthermore, it is most unlikely that he would save his wife’s number as “My mother, [Nickname]”. Congolese naming conventions are such that if she was his wife he would be likely to call her by a romantic name, (Cherie) or as they mature, by the name of their eldest male child ([Child 3])
We submit that the evidence is clear that [Ms A variation] is simply [the applicant]’s [Social media] friend. She is not his wife, who was killed in 2009 as he has consistently described.
Money transfers to [Ms A variation]
The Minister’s Delegate also raised concerns regarding the fact that [the applicant]’s daughter, [Child 1] sent money to [Ms A variation]. [Child 1] acknowledges that she sent the money to [Ms A variation] at her father’s request. We attach a Statutory Declaration from [Child 1]. As both [Child 1] and [the applicant] have attested in their respective Statutory Declarations, the money was sent so that [Ms A variation] could assist them to find and help their son/brother, [Child 3]. We draw your attention to Attachment 2 to [the applicant]’s Statutory Declaration. These attachments are provided as evidence that [Child 3] is indeed missing and that his family are very worried about him. We also attach to this submission, a Screenshot of a message sent by [Child 1] to her brother in which she says: “Hello [Child 3], Its me [Child 1]”. We submit that this evidence that [Child 3] is missing, and his family is worried about him, and trying to find him provides a logical explanation for the money that was sent to [Ms A variation].
While it is no doubt a great coincidence that [the applicant]’s [Social media] friend has almost the same name as his deceased wife, we submit that the evidence we have provided with this submission makes clear that she is not his wife. We submit that this evidence must be considered carefully and with an open mind. We further submit that if doubts persist, an examination of the photographs must be undertaken by a suitably qualified person. We have no doubt that when the photographs are properly compared, it will be clear that [Ms A variation] and [Ms A] are two different women.
Relocation
[The applicant] was born in, and (prior to leaving the DRC), lived his entire life in the Eastern provinces of the DRC. In his Protection visa application it is clear that his claims relate to incidents that happened in the Eastern provinces of the DRC.
… … …
UNHCR Position on Return to the DRC
[The applicant] was born in, and (prior to leaving the DRC), lived his entire life in the Eastern provinces of the DRC.[1] In his Protection visa application it is clear that his claims relate to incidents that happened in the Eastern provinces of the DRC.
… … …
In September 2019, the UNHCR made a clear statement warning states against returning asylum seekers to the DRC1 on the basis of a “presumed internal flight alternative”:
“As the situation in North Kivu, South Kivu, Ituri and adjacent areas remains fluid, UNHCR considers that persons fleeing the conflict in these three provinces and adjacent areas are likely to be in need of international refugee protection in accordance with Article 1(2) of the 1969 OAU Convention. In addition, many persons fleeing the DRC are likely to meet the 1951 Convention criteria for refugee status. Depending on the profile of the individual case, exclusion considerations may need to be looked into.
Furthermore, UNHCR does not consider it appropriate for States to deny international protection to persons originating from the affected areas on the basis of a presumed internal flight alternative to other parts of the DRC, unless the applicant has strong and pre-existing links to the suggested area of relocation. At a minimum, such links need to comprise an ability to speak the local language, as well as having family or other substantial connections in the area in question. The person concerned must also be able to obtain the necessary documentation to allow them to settle and to move freely in the proposed area of relocation, in order not to be exposed to a risk of arbitrary detention. Any such proposed returns would need to be assessed carefully, taking into account the individual circumstances of the case.”
[1] UNHCR: POSITION ON RETURNS TO NORTH KIVU, SOUTH KIVU, ITURI AND ADJACENT AREAS –
UPDATE II, September 2019.
(b) Current DFAT Travel Advice regarding the DRC (as of 11 October 2021)
·The security situation in the Democratic Republic of the Congo (DRC) is volatile. Conflict between government forces and armed groups is ongoing. Regularly review your contingency plans and be ready to leave the country at short notice.
·On 6 May 2021, the DRC Government declared a ‘State of Siege’ in the eastern provinces of Ituri and North Kivu. Military administrations will replace civilian administrations in these provinces until further notice. The new military administration has been granted extended security powers, and there is potential for an increase in armed conflict in the region during this time.
·Large-scale protests could occur at any time. These can turn violent quickly. Avoid large public gatherings...
·Crime rates are very high, especially in Kinshasa and the country's east. Risks increase after dark. Ensure your accommodation is secure. Don't walk alone in Kinshasa, even during the day.
… … …
[The applicant] has consistently stated that he has no family remaining in the DRC. Furthermore, he has consistently stated that his two main languages are Nande and Swahili.
As he has previously stated in his Statutory Declaration of 11 February 2018, he has already encountered hostility from people who know that he had married a Rwandan (Tutsi) woman.
While it is the case that demographically the Tutsis (or Banyamulenge) were concentrated in the Eastern Congo, actions of the Congolese Central government over the years has ensured that anti-Tutsi sentiment has spread throughout the DRC:
”After the victory of Laurent Kabila's Alliance of Democratic Forces for the Liberation of Congo-Zaire (ADFL), Kabila named himself president of the newly renamed Democratic Republic of Congo (DRC) and appointed his cabinet and other leaders. Many of these positions were filled by ethnic Tutsis, some of them of Rwandan rather than Congolese origin. This resulted in resentment of Tutsis by "indigenous" Congolese who were fearful of Tutsi domination of the country, especially by Rwandan Tutsis. In addition, after the rebellion ended, it became evident that in their march west across Congo, Rwandan Tutsis carried out massacres against Rwandan Hutus who had been in refugee camps in Congo. The numbers of Rwandan refugees killed is unknown, but up to a million refugees were in the camps and up to 200,000 were unaccounted for at the end of the ADFL rebellion. The Hutus in the refugee camps had been forced to remain there by extremist Hutus (The Interahamwe
who had been the genoçidaires). They used the camps to regroup and hide from the Rwandan government. Once the Congo rebellion began, the Rwandan Hutus broke away from the Interahamwe and began returning home. The Tutsis then attacked the refugees in their quest for justice against the Interahamwe.
Laurent Kabila is a Luba from Katanga, and long-time opponent of Mobutu Sese Seko. After several months of consolidating his power in Kinshasa, Kabila made a strategic decision to expel his Rwandan allies from the country. Kabila was concerned with the resentment of "native" Congolese against the Tutsis and decided that their support was more of a liability than an aid. His rule was dictatorial, and at least one human rights organization in the country reported that his first year in power was more repressive than Mobutu's regime ever was. Journalists, human rights activists, and opposition figures have been imprisoned, the armed forces act with impunity, and all the power of the country is concentrated in the hands of the president (Kabila). Once Kabila ordered the Rwandans out of the country, his former allies regrouped in the east and began their own rebellion against Kabila. This second rebellion grew into an international war with Rwanda, Uganda, and Burundi supporting the rebels and Zimbabwe, Namibia, Angola, Chad, Sudan and Libya supporting Kabila. The first four supported Kabila with arms and men, though Chad has since withdrawn its forces, and the latter two supported Kabila mainly with money.”[2]
The above analysis demonstrates clearly that the “Tutsi/Rwandan” issue is far more widespread throughout the DRC that is commonly understood. [The applicant] is known to have been married to a Rwandan Tutsi and also known to have done business in Rwanda. Suspicion of [the applicant] in the Western and southern parts of the DRC would be intensified because of the fact that the two languages that he speaks fluently are Nande and Swahili. Neither of these languages are widely spoken outside Eastern Congo.[3] Furthermore, his only current identity document (i.e. his expired passport) identifies his place of birth as Bukavu, a city in the heart of the Eastern Congo conflict area.
The DFAT information cited above warns of the dangers inherent in roadblocks. “Security authorities may target travellers to ask for bribes or make random arrests, such as at roadblocks.”
This warning is directly relevant to [the applicant]. Although the DFAT site gives numerous warnings on the dangers from criminals, it the above sentence is a clear warning on the dangers from Security authorities, i.e. State actors. If [the applicant] is stopped at a roadblock by any of these security forces, it will be immediately clear to the people who stop him that he is from Eastern Congo, both because he is a Swahili speaker and because his only ID document identifies his place of birth as Bukavu, in Eastern Congo. This will greatly increase his vulnerability. In this regard we also draw attention once again to the UNHCR advice (above), that a person should not be returned to the DRC unless he has (or can) obtain the necessary documentation to allow them to settle and to move freely in the proposed area of relocation, in order not to be exposed to a risk of arbitrary detention. [The applicant]has consistently advised that he has changed his name from [Former surname] to [Current surname] to avoid identification while he was in [Country 1]. We submit that any documentation he could obtain is likely to expose him to suspicion and harm.
Delegate’s decision
[2] University of Maryland: Minorities at Risk Project - Data – Assessment for Tutsis in the Dem. Rep.of the Congo, found at: › assessment
[3] See Attachment F – found at: From:

Having made their own assessment of the evidence before it, the delegate refused to grant the applicant a protection visa because they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing
The applicant lodged an application for review on 5 November 2021 of the decision made by the delegate to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant provided the following further evidence in support of his claims:
·Queensland Driver’s licence: Date of birth: [Date 1]
Tribunal hearing – 27 March 2025
On the day of the hearing, the applicant provided the following documents:
·Acknowledgment of valid application for a Protection visa from the department and dated 22 February 2018. In that letter, the applicant is identified by the department as “[the applicant]” whose date of birth is “[Date 1]”.
·Letter from Criminal Investigations Directory, [City, Country 1], and dated [May] 2010 stating that a [Ms F] has been reported missing by [the applicant]. It appears to be signed by a Divisional CID Officer, [City, Country 1].
·Further Australian identification documents such as Medicare and Australian Government ImmiCard.
·Copy of a Notice of Decision of Eligibility Committee. Office of the Prime Minister, Directorate of Refugees, advising that the applicant was granted refugee status [in] September 2009.
·Copies of documents previously noted above and lodged in support of his original protection visa application.
At the hearing, the Tribunal asked the applicant a number of questions in relation to his protection claims and information contained in his protection visa application. In response, the applicant gave the following evidence:
·The applicant was being supported at the hearing by his daughter, [Child 1], who came to Australia in 2013.
·He came to Australia in 2013 on a subclass 309 visa. He had already married again in [City, Country 1].
·He has not left Australia since.
·When asked why he feared returning to the DRC he stated that if he returns to the DRC he will be killed. The reason was that he had been married to a Tutsi Rwandan woman. When asked why this would be a problem for him and why he would be targeted by the community at large he stated that, when he lived in the DRC, people had wanted to kill him. The Mai Mai killed his wife, children and most of his family members because he was married to a Tutsi Rwandan woman. They are still in control of the areas where he lived. His parents, family and friends were all killed by the Mai Mai at the time. He was able to escape to [Country 1] with his young children at the time, [Child 1], [Child 2] and [Ms F].
·At the time his family were killed, he was at the hospital with his daughter [Ms F]. She was only a small child at the time. As he returned from [hospital] with [Ms F] to Rutshuru, where they were living, he met his neighbour running away from his house with [Child 1] and [Child 2] in hand. His neighbour had been looking after them. His neighbour told him that his home had been attacked and that his wife had been killed. He said that he was told that his wife had her stomach cut open and that his unborn child had been removed. The applicant fled for [Country 1] on the same day after hearing this news on 15 March 2009. They fled [across] the border. They [travelled] for three days and crossed the border into [Country 1]. When they arrived at the border, they received help and were eventually taken to [City, Country 1] in [Country 1]. He then applied for asylum in [City, Country 1] and was subsequently granted refugee status there. He was a refugee there for about 5 years.
·When asked why he wanted to change his last name in [Country 1], he stated that he was traumatised by what happened to his family back in Rutshuru. He had information that he had been followed into [Country 1] by the Mai Mai or their sympathisers. He believed they later kidnapped his daughter [Ms F] in [City, Country 1], who he has never seen again. It happened when she was alone with the housekeeper, and when he was working. He went to the police desperately seeking to find her and list her as a missing person. He has submitted this in support of his claims.
·He confirmed that he went to [Country 2] many times to purchase goods for his business. He would obtain his visa by travelling first to Tigali, Rwanda and getting the [Country 2] visa at the embassy there.
·When asked why he did not go to Kinshasa to get a [Country 2] visa for travel, he stated that everyone in the Eastern part of the DRC prefers to go to Tigali because Kinshasa is too far away.
·He stated that he only travelled to Tigali to get a [Country 1] visa so that he could travel to [Country 2] or to [Country 3] for business.
·When asked whether he travelled into Rwanda more than 10 times he stated that he did. He stated that it could have been as many as 20 times. He stated that he would get an exit stamp at the DRC border and an entry stamp in Rwanda. He would then get an exit stamp in Rwanda when heading back to the DRC. His passport was filled with Rwandan exit and entry stamps. When the Tribunal asked him to confirm one of the Rwandan entry/exit stamps he confirmed that it was. When asked whether he might be concerned that government authorities could see his exit and entry into Rwanda as indicating he supported Rwanda, he stated that he was concerned.
·He stated that his passport has since expired. His last passport expired in 2009. He stated that this was the passport that he had on him at the time he escaped the DRC in 2009. When asked why he had a passport on him at the time he escaped, he stated that they all keep some form of identification on them if asked at different checkpoints to show who they were. Many of his other documents were burnt when the Mai Mai burnt his home to the ground.
·If he was to return to the DRC, the only form of identification he has is an old expired passport. He does not have an electoral card which would be the other form of identification. His passport has since expired and is worthless as an identification document. If he was forced to return to the DRC, he would be asked at any checkpoint to produce some form of identification. He does not have any.
·The Tribunal put to him certain recent country information (March 2025) from the United Nations High Commissioner for Refugees which stated that all the Eastern part of the DRC is too dangerous to return to. The Tribunal also indicated that the Goma airport is closed and that he would have to return to Kinshasa. The applicant agreed with this country information. He stated that he would have to enter at Kinshasa airport and then make his way to Eastern DRC (where he has lived all his life). He stated that it was too dangerous to enter Eastern DRC. In any case, he would be required to produce identification documents at any checkpoint.
·If he did not have any valid documents, he could be detained and killed if they found out that he had been married to a Rwandan Tutsi woman. He stated that the DRC government is at war with Rwanda. He stated that he is afraid that people will know that he has also travelled multiple times into Rwanda and that this is a fact on all the visa stamps he has in entering and exiting Rwanda. He stated that he will be seen as a Rwandan sympathiser or worse and killed.
·He stated that he speaks Swahili and Nande. Swahili is spoke in the Eastern part of the DRC. He stated that the places which speak Nande are Beni, Butembe and Rubero in North Kivu. He would also be recognised as being from the Eastern DRC by government authorities. He states that the Mai Mai are all over the DRC, even in Kinshasa, and he fears them.
·He stated that the authorities could not protect him because they are not able to protect anyone who is being killed across the country. In any event, he would be a target by the Mai Mai and by government authorities for being a Rwandan sympathiser and having a Rwandan Tutsi wife, and because he comes from the Eastern provinces of the DRC. He fears the Mai Mai, M23 rebels and the government forces. He stated that M23 is supported by Rwandan soldiers.
·He fears that he will be seen as a traitor in marrying a Rwandan woman. This is only exacerbated by the fact that he has travelled to and from Rwanda many times as well and this makes him seen as a Rwandan sympathiser ever more so.
·He stated that he does not have any citizenship in [Country 1].
·When asked why his date of birth was different in his passport which is handwritten and since expired, he stated it was a mistake made by the agent who took care of getting him a passport at the time in Kinshasa.
·He stated that he will die if he returns to the DRC. His remaining children need him in Australia. He stated that he has no family left in the DRC. The only family he has are living in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
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 (the department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The Tribunal found the applicant to be a credible witness at the hearing, based on the consistency of his oral evidence with all the material before the Tribunal, contained on the department and Tribunal files over an eight-year period since lodgement of his protection visa. The Tribunal had particular regard to how the applicant was able to “easily” recall the sequence of events (as someone who had lived the experience) that led to the killing of his wife, children, parents and and family in Rutshuru, notwithstanding the applicant’s distress in telling the story, which the Tribunal observed at the hearing. His recounting of events was consistent with all his written statements and claims notwithstanding that his claims had been made seven years ago when he first lodged his protection visa application. The Tribunal is mindful of how recalling such events can be traumatising for any person. However, the applicant chose to give a full account of these events and to provide details that led to the killing of his family by rebel members (standing by his claims that they were Mai Mai rebels) and his journey into [Country 1] with his three children, and his subsequent actions of obtaining refugee status for himself and his family (proof of which lay in the confirmation of refugee status from the [Country 1] Office of the Prime Minister, Directorate of Refugees which the Tribunal accepts as a genuine document).
The Tribunal was left with no doubt, from listening to the oral evidence of his marriage to a Rwandan woman and the Mai Mai’s killing of his wife, his unborn child, his parents, children and other family members, that the applicant holds grave fears for his life if returned to the DRC, for reason of his long marriage to a Rwandan Tutsi woman, his profile as a businessman which took him into Tigali, Rwanda on multiple occasions so that he could travel to [Countries 2 and 3] to purchase goods for his business in Goma, and the scrutiny and discrimination that he received from his community, from his business contacts and from society at large for his marriage to a Rwandan Tutsi woman.
The Tribunal notes that the department had concerns with the applicant’s date of birth. There is no evidence before the Tribunal which suggests that the applicant’s date of birth is anything other than what was originally put on his Australian Travel document ([Reference]) issued for his travel to Australia. The applicant arrived lawfully in Australia on this travel document [in] August 2013 with a valid visa at the time, namely a Class UF Provisional Resident Subclass 309 visa. The Tribunal notes that the Australian High Commission in Nairobi at the time did its due diligence in issuing the applicant with a valid travel document to Australia by recording on that document his date of birth as “[Date 1]”, the date of birth the applicant states is his actual date of birth. The Tribunal also notes that the applicant was granted a Refugee Identity Card in the Republic of [Country 1] which listed the applicant’s date of birth as [Date 1], at the time of its issue [in] November 2009.
The Tribunal accepts the applicant’s explanation as plausible that his old passport issued in 2002 (which has been expired since 2011 and had handwritten details as opposed to typed details of his personal particulars) was obtained through the assistance of an agent who was travelling to Kinshasa at the time, and that he believes the agent at the time has incorrectly provided his date of birth to the issuing authority in the DRC as “[Date 2]”. The Tribunal has no forensic evidence before it to suggest that the applicant’s date of birth is anything other than [Date 1]. The applicant has been transparent about his date of birth being [Date 1] from the beginning of the lodgement of his protection visa application. His [Country 1] Refugee Identification Card (which the Tribunal accepts as genuine given there is no contrary evidence before it) shows his date of birth as [Date 1], as does his Australian Travel Document issued from the Australian High Commission in Nairobi. Australian government agencies such as Medicare and the Department of Transport have also accepted his date of birth as [Date 1]. Given that there is no other evidence before the Tribunal to the contrary, the Tribunal accepts the applicant’s claims that his date of birth is [Date 1].
The Tribunal notes that the department made a finding on the evidence at the time that the applicant’s wife (who he had claimed had been killed in the DRC) was alive, given [Social media] evidence before it. The Tribunal, however, relies on the significant amount of evidence before it at the time of decision that indicates that the applicant’s claims of his wife being deceased is credible. The Tribunal comes to this conclusion given the applicant’s oral evidence at the hearing and the consistency of accounts relating to the killing of his wife, children and family members by the Mai Mai in Eastern DRC at the time. The Tribunal notes that the applicant’s oral evidence about the death of his wife, children and family members has been consistent throughout his application and review process, and the Tribunal gives this consistency significant weight when making its finding on credibility on this issue.
The Tribunal has also placed significant weight on the applicant’s representative’s comprehensive submissions after the applicant’s departmental interview which provided a number of different reasons why the applicant’s claims regarding his wife’s death was credible. It has placed weight on the applicant’s Commonwealth Statutory Declaration, attached to the representative’s submissions, which gives reasons why the delegate might have drawn a different conclusion about who was the person referred to in the [Social media] page. These arguments by the representative, and the reasons provided by the applicant in the Commonwealth Statutory Declaration were not dealt with individually in the delegate’s decision and, after reading both the representative’s submissions and the applicant’s explanation in his Commonwealth Statutory Declaration, the Tribunal accepts the claims that his first wife is deceased.
The Tribunal also finds significant the Refugee Identity Card issued in [Country 1] [in] November 2009 (which the Tribunal has found to be genuine) as identifying the applicant’s marital status as “Widow”. This record was made not long after the applicant’s claims of escaping into [Country 1] with his children in 2009. There is also no woman recorded as his wife listed on the Notice of Decision of Eligibility as a refugee in [Country 1] (which the Tribunal finds is genuine, given there is no other contrary evidence before it), which only lists two of his children, two nephews and one niece as also being granted refugee status in [Country 1].

Looking at the evidence before it as a whole, the Tribunal finds credible the claims that the applicant’s wife was deceased at the time of his entering [Country 1] in 2009.
On the consistent evidence before it (and taking into account the birth place written on his expired passport), the Tribunal accepts as credible the claims that the applicant has lived all of his life in Eastern DRC, namely North Kivu, Goma and South Kivu. It accepts on the evidence before it that he was born in [Village], North Kivu, that he lived for a long period of time in Goma, working and living with his wife and children there, and that his extended family lived in Ratshuru, North Kivu and that he remained with his extended family in Rutshuru until he fled to [Country 1] in 2009. It accepts that he has never returned to the Eastern DRC since.
It accepts on the material before it that the applicant entered and exited Rwanda from the DRC on no less than ten occasions and up to 20 occasions, as given in evidence by the applicant at the hearing. The Tribunal has observed the multiple exit and entry Rwandan visa stamps, and the multiple [Country 2] visas in his expired passport that gives credibility to the applicant’s claims that he entered Tigalai, Rwanda to obtain the necessary travel visas to go to [Countries 2 and 3] to purchase goods for his flourishing business in Goma.
Given all the written and oral evidence before it, and the country information which the Tribunal will address shortly, the Tribunal accepts the applicant’s claims as follows:
·That he married a Rwandan Tutsi woman in 1994.
·That they had several children together, that they lived in Goma and that the applicant carried out a successful shop selling [goods] and effects in Eastern DRC
·That the applicant travelled on multiple occasions through the border of Eastern DRC into Rwanda to obtain his [Countries 2 and 3] travel visas in Tigali, Rwanda at the relevant embassy there.
·When returning to Goma to his family and work, he experienced harassment and discrimination from his community and society generally for his marriage to a Tutsi Rwandan woman.
·That his wife experienced discrimination because of her ethnicity and nationality.
·That they moved to Rutshuru so that they could be away from Goma and the growing escalation of discrimination to the applicant’s wife and himself and to be closer to his extended family in Rutshuru in the family compound.
·That the applicant was attacked for his association with his wife who was a Tusti Rwandan.
·That the applicant’s wife, unborn child, children, parents and extended family and friends in the family compound in Rutshuru were killed by Mai Mai rebels and that he escaped to [Country 1] in 2009 with his remaining children as a result of these attacks.
·That his family compound was burnt down by Mai Mai rebels in Rutshuru.
·That he obtained refugee status in [Country 1] in 2009.
·That he came to Australia on an Australian Travel document ([Reference]) issued for his travel to Australia, and that he arrived lawfully in Australia on this travel document [in] August 2013 with a valid visa at the time, namely a Class UF Provisional Resident Subclass 309 visa.
·That he has not returned to the DRC since.
·That he has no family members left in the DRC which he is aware of.
The Tribunal has had particular regard to independent country information on the DRC which is directly relevant to the applicant’s claims for protection.
It has placed significant weight on the very latest UNHCR Position Paper for Returnees to North Kivu, South Kivu and Ituri in the DRC, issued March 2025. In particular it has considered UNHCR’s position on DRC nationals returning to these areas (as at March 2025) which is clearly outlined below:
“… … …
2. After a continued deterioration in the security, human rights and humanitarian situation in North Kivu, South Kivu and Ituri since November 2022, armed violence in the eastern provinces of the Democratic Republic of the Congo (DRC) escalated in January 2025. According to the Chair of the Coordination Committee of the Special Procedures of the Human Rights Council, “the intensification of hostilities, particularly in North Kivu […] ha[s] led to widespread violence, forced displacement and serious violations of international human rights and humanitarian law” with violence “reach[ing] unprecedented levels”.
The Armed Conflict Location & Event Data Project (ACLED) recorded an average of 109 incidents per month of battles, explosions/remote violence and violence against civilians between 1 July and 31 December 2024 in the DRC, causing an average of 267 civilian and non-civilian fatalities. In contrast, ACLED recorded 254 incidents in January 2025, with 200 incidents occurring in North Kivu as a result of the conflict with M23. On 27 January 2025, M23 captured the provincial capital Goma. By the end of January 2025, M23 controlled “practically all of North Kivu province”. On 16 February 2025, M23 took control of Bukavu, South Kivu’s capital city, and continued its advance in both northern and southern directions. At least 500,000 persons were internally displaced by conflict and violence in North and South Kivu between 1 January and 20 February 2025, and more than 73,000 persons fled to neighbouring countries.
4. All parties to the conflict are reported to have committed human rights violations, including the summary execution of children, widespread sexual violence, and attacks on hospitals and humanitarian warehouses by M23. In response to M23, the government has relied upon local militia and armed groups, sometimes called Wazalendo, many of whom have been accused of committing human rights violations. Multiple armed groups in North Kivu, South Kivu and Ituri have aligned themselves with M23 openly or in secret. In North Kivu and Ituri, the Allied Democratic Forces (ADF), an Islamic State affiliate, has continued carrying out attacks targeting civilians, particularly in areas that are outside of State control, killing over 650 civilians between June and December 2024.
5. Even before the escalation of armed violence starting in January 2025, State control was either weak or absent across North Kivu, South Kivu and Ituri, leading to persistent violations of human rights and abuses against the civilian population committed by both State and non-State actors. The security situation in South Kivu has worsened since the withdrawal of the UN Stabilization Mission (MONUSCO) in June 2024.
6. Between 1 June 2023 and 31 May 2024, sites for internally displaced persons were deliberately targeted and attacked twenty-one times by armed groups. Following their capture of Goma, M23 has ordered the systematic dismantling of sites for internally displaced persons (IDPs), forcing displaced populations to return home despite conditions for return in safety and dignity not having been met. By late February 2025, fewer than 2,000 people remained of the estimated 700,000 people who lived in IDP sites in and around Goma as of November 2024. Conflict-related sexual violence remains rampant, with widespread sexual violence reported as the conflict has escalated in early 2025.
7. Against this background, the humanitarian situation in North Kivu, South Kivu and Ituri has worsened. In the first half of 2024, over 2.7 million persons were newly displaced in the DRC, mostly in these three provinces, with 73 per cent displaced by the conflict with M23. Humanitarian access has been restrained by conflict, leaving many vulnerable persons without access to life-saving aid. As conflict has spiked, hospitals have been overwhelmed and are without supplies. The airports of Goma and Bukavu are under M23 control and remained closed as of end-February 2025.27 According to the UN Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator, the January 2025 “escalation in the east threatens to make a critical humanitarian situation even worse”.
International Protection Needs
8. UNHCR continues to call on all countries to allow civilians fleeing conflict and violence in the DRC access to their territories, to guarantee the right to seek asylum, and to ensure respect for the principle of non-refoulement at all times. UNHCR calls on States to register all arrivals who seek international protection and to issue documentary proof of registration to all individuals concerned. All claims of DRC nationals seeking international protection should be processed through fair, transparent, and efficient procedures, including the use of a prima facie approach to recognition where relevant, in accordance with international and regional refugee law and other relevant legal standards.
9. Given the above information, persons fleeing conflict and violence from North Kivu, South Kivu and Ituri may meet the criteria for refugee status under the 1951 Convention. In addition, given the high levels of violence in North Kivu, South Kivu, Ituri and adjacent areas, UNHCR considers that persons fleeing the armed conflicts in these three provinces and adjacent areas are likely to be in need of international refugee protection under UNHCR’s broader mandate criteria, Article 1(2) of the 1969 OAU Convention, under the Cartagena Declaration; or complementary forms of protection including subsidiary protection under Article 15(c) of the EU Qualification Directive.
10. The security, rule of law and human rights situation in North Kivu, South Kivu and Ituri challenges the feasibility of safe and dignified return for any person originating from these provinces and adjacent areas. Against this background, UNHCR calls on States not to forcibly return to the DRC persons originating from these areas until the security and human rights situation has improved sufficiently to permit a safe and dignified return of those determined not to be in need of international protection. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security, rule of law, and the human rights situation in North Kivu, South Kivu and Ituri has significantly improved to permit the safe and dignified returns of those determined not to be in need of international protection.
… … …”
The Tribunal finds on the evidence that the applicant has lived all his life in Eastern DRC, namely Bukavu, South Kivu, Goma and Rutshuru, North Kivu. His family, both immediate and extended, also lived in Eastern DRC. They have since been either killed, moved on or disappeared, and the applicant is not aware that he has any family left in the Eastern DRC. If he was to return, he could only return to Eastern DRC. He has no connection in any other area in the DRC. Given UNHCR’s strongest position yet to not forcibly return any person to the Eastern areas of the DRC due to significant human rights abuses, lack of state protection and conflict, and given the complete control of those Eastern areas by M23 forces and other rebel groups and non-state actors, given that he has no family to return to there, given the applicant’s previous experiences in those areas when married to a Rwandan woman, and given that he places himself at extreme risk in suffering serious harm or death in returning to those areas based on UNHCR’s latest Position paper, the Tribunal finds, on the applicant’s own credible evidence and on the country information before the Tribunal, that there is a real chance that the applicant will suffer serious harm were he to return to Goma, Bukavu, Rutshuru or any other areas in Eastern DRC.
Given that UNHCR’s Position Report states that “[o]n 27 January 2025, M23 captured the provincial capital Goma” and that “[b]y the end of January 2025, M23 controlled “practically all of North Kivu province”” and that [o]n 16 February 2025, M23 took control of Bukavu, South Kivu’s capital city, and continued its advance in both northern and southern directions”, the Tribunal finds that the applicant is unable to enter into the Eastern provinces from Goma Provincial airport or Bukavu provincial airport and can only arrive into the DRC at Kinshasa International airport, if he was to return in the reasonably foreseeable future.
The applicant has stated that he will return with no DRC identification documents at all except for an expired passport. When asked if he knew details of his exit from the DRC into Rwanda, and return from Rwanda into the DRC at the border up until 2009 were being recorded by DRC authorities, he was unsure. He was only aware that his passport was stamped upon exit and stamped again upon entry. He was aware that government authorities knew of his entry into Rwanda from the DRC and entry into the DRC from Rwanda through the visa stamps that were in his expired passport. He remains concerned about this. The applicant has made it clear to the Tribunal that he fears he will suffer serious harm for reason of his marriage to a Rwandan Tutsi woman and because he is perceived to be a Rwandan sympathiser through his marriage to her, because he comes from North Kivu, Goma and South Kivu – all now in the control of the Rwandan backed M23 forces and other coalition of rebel groups against the DRC government, and because of his multiple travels into and out of Rwanda while living in the Eastern areas of the DRC.
In this regard, the Tribunal has considered a February 2025 online news article from the reputable “The Guardian”, which reported on M23’s brutal takeover of the Eastern provinces of the DRC as follows:[4]
[4] CARLOS MUREITHI IN NAIROBI AND EROMO EGBEJULE, 25 FEBRUARY 2025, “WHO ARE THE M23 REBELS AND WHY IS THERE FIGHTING IN EASTERN DRC? -RWANDA-BACKED MILITIA CONTINUES TO MAKE TERRITORIAL GAINS IN COUNTRY SUFFERING ONE OF WORLD’S WORST HUMANITARIAN CRISES”, THE GUARDIAN, WHO ARE THE M23 REBELS AND WHY IS THERE FIGHTING IN EASTERN DRC? | DEMOCRATIC REPUBLIC OF THE CONGO | THE GUARDIAN
The Rwandan-backed armed group M23 on Friday seized the airport in Bukavu, the provincial capital of South Kivu in the Democratic Republic of the Congo, just weeks after capturing Goma in neighbouring North Kivu.
There are fears that the conflict in eastern DRC, which has intensified a humanitarian crisis, could spark a broader war with Rwanda.
What is M23?
M23, or the March 23 Movement, is one of more than 100 armed groups fighting Congolese forces in the mineral-rich eastern DRC. It has been present in North Kivu province in areas bordering Rwanda and Uganda and has more than 8,000 fighters, according to the UN.
It is named after the date in 2009 of the signing of an accord between the National Congress for the Defence of the People (CNDP), a Tutsi-led rebel group, and the Congolese government to end a revolt led by the Tutsi people in eastern DRC.
Why is M23 fighting Congolese forces?
M23 was created in 2012 after former CNDP troops rebelled against the Congolese government, accusing it of failing to implement the 2009 agreement by integrating Tutsi fighters into the army, protecting minorities and distributing resources evenly.
It says its objective is to safeguard the interests of the Congolese Tutsi [emphasis added] and other minorities, including protecting them against Hutu rebel groups who escaped to the DRC after taking part in the 1994 genocide that targeted Tutsis.
In 2012, the militia made significant territorial gains in eastern DRC, including briefly seizing Goma before withdrawing 10 days later after an agreement brokered by neighbouring nations.
In a resurgence starting in 2022, the group mounted an offensive in North Kivu against DRC’s armed forces and the UN mission in the country. M23 took control of Rubaya, a key coltan mining town, last year. It makes $800,000 (£644,800) monthly in taxes on production and trade of the mineral, according to the UN.
In January, the rebel group made further territorial gains, capturing the towns of Katale, Masisi, Minova and Sake, and now the city of Goma.
On Friday, the group captured Bukavu’s airport in South Kivu province, after a speedy advance south from Goma.
How is Rwanda involved in the eastern DRC conflict?
DRC, the US and other countries have all accused Rwanda of backing M23, which Rwanda denies.
UN experts say Rwanda’s army is in “de facto control” of the group [emphasis added] and that as of last July, between 3,000 and 4,000 Rwandan government troops were operating with M23 in eastern DRC.
In early February, the Guardian reported that thousands of Rwandan soldiers had died during the conflict, contradicting claims from Kigali that its troops were not involved.
Who is helping Congolese forces in eastern DRC?
There are about 11,000 peacekeepers in DRC, mostly in the country’s east, as part of the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (Monusco). The Southern African Development Community Mission in the Democratic Republic of Congo, or SAMIDRC, also has troops in the country.
African leaders and the US have in the past brokered ceasefires.
What is the humanitarian impact of the conflict?
The violence in eastern DRC has compounded the problems of a country that, with more than 6 million people displaced, already has one of the world’s worst humanitarian crises.
South Kivu and North Kivu, both provinces in the east of the country, have more than 4.6 million internally displaced people. This year alone, the conflict in eastern DRC has displaced 400,000 people.
Numerous cases of executions, sexual violence and other atrocities have been reported in the course of the recent fighting. In February, Vivian van de Perre, the deputy head of Monusco, said hundreds of women had been raped and burned to death during a mass jailbreak reportedly perpetuated by M23.
The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report, reports (in its executive summary) on armed non-government forces as follows:
… … …
Armed nongovernmental forces continued to commit abuses in the eastern provinces. Large-scale abuses by the Cooperative for the Development of the Congo, ISIS-Democratic Republic of the Congo, also known as Allied Democratic Forces, the March 23 Movement, and other groups persisted in parts of North Kivu and Ituri Provinces. Abuses included unlawful killings, disappearances, physical abuse and other mistreatment, destruction of government and private property, and gender-based violence, widespread even in areas with no active hostilities, by members of armed groups. Armed groups also reportedly unlawfully recruited, abducted, and retained child soldiers and subjected children and adults to forced labor. The armed rebel group March 23 Movement continued attacks against the country’s security forces and as of September remained in control of large swaths of territory in North Kivu Province. In December 2022, the United Nations Group of Experts provided evidence the Rwandan Défense Force gave material, operational, and logistical support to the March 23 Movement and was itself conducting operations on Congolese territory [emphasis added].
The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report reports that arbitrary arrest is commonplace by security forces:
Arbitrary Arrest: Security personnel arrested and detained civil society activists, journalists, and opposition party members and sometimes denied them due process. Security forces regularly held protesters and civil society activists incommunicado and without charge for extended periods. Police sometimes arbitrarily arrested and detained persons without filing charges to extort money from family members. Persons without national identification cards were sometimes arbitrarily arrested by the SSF [emphasis added].
The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report reports that violence and discrimination is real against those who are perceived as sympathisers of Rwanda:
Marginalized racial and ethnic communities were both perpetrators and victims of arbitrary and unlawful killings. Conflict with armed groups, tensions concerning land rights, and migration exacerbated long-standing divisions regarding ethnicity. There were reports that the SSF perpetrated, threatened, and condoned violence against marginalized ethnic communities.
Media reports of Rwanda’s support to the March 23 Movement (M23) rebel group contributed to violence and discrimination against Rwandophones and those with a perceived sympathy for Rwanda or M23 [emphasis added]. Rwandophone populations (both Kinyarwanda and Kirundi speakers) were also accused of perpetrating violence against other ethnic communities.
Armed groups committed arbitrary and unlawful killings throughout the year.

The latest SmartTraveller advice states that “[m]ilitary and police roadblocks are common” and that “local authorities [have] increased the number of checkpoints at night”.[5]
[5] Democratic Republic of the Congo Travel Advice & Safety | Smartraveller
The Tribunal finds from these reports that there is a real chance that the applicant, upon returning to the DRC, will encounter security checks either at Kinshasa international airport or along one of a number of roadblocks and checkpoints that have been put in place as he travels to a place of abode (as per the SmartTraveller advice above). Given that the applicant does not have any DRC identification except for his expired DRC passport, there is a real chance that he will be arbitrarily arrested by security forces and detained (as per the United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report).
Given that the applicant has only ever lived in the Eastern provinces, there is a real chance that he will be seen as a Rwandan sympathiser due to the Rwandan backed M23 rebel forces takeover of the DRC Eastern provinces (as per the United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report above and The Guardian’s February 2025 Online reporting of the M23 advancement in the DRC Eastern province). The Tribunal finds that this real chance is not simply based on his birth, residence and work history in the DRC Eastern Provinces. It arises also as a result of additional factors particular to his own circumstances, namely his marital history to a Rwandan Tutsi woman which was known by business contacts and community members alike in the DRC Eastern Provinces, and his long immigration history which clearly shows his entry into Rwanda and exit from Rwanda over many years up to 2009, before he escaped to [Country 1]. The Tribunal finds that there is a real chance that the applicant will suffer serious harm for reason of his particular social group, namely “those with a perceived sympathy for Rwanda or M23” (as identified by The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report) due to the cumulative effect of all these factors combined.
The Tribunal finds that it is clear from the United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report above that Rwanda’s support to the March 23 Movement (M23) rebel group “contributed to violence and discrimination against … those with a perceived sympathy for Rwanda or M23 [emphasis added].
Given the applicant has no apparent family left in the Congo as they have either fled, disappeared or been killed, there would be a real chance that the applicant, if arrested and detained because of lack of DRC identification, would be at serious risk of suffering serious harm for his perceived sympathy for Rwanda given the cumulative factors that have occurred in the applicant’s life which point to this perceived sympathy. Given the reporting of significant amount of human rights abuses carried out by DRC security forces on the civilian population (see the United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report above), there is a real chance that the applicant will suffer serious harm that would amount to a threat to his life or liberty and to significant physical ill-treatment of the applicant (see s5J((5) of the Act).
The Tribunal finds that the applicant fears persecution for reasons of his membership of the particular social group, namely “those with a perceived sympathy for Rwanda or M23”. The Tribunal finds this group to satisfy the definition in s 5L as the characteristic of “a perceived sympathy for Rwanda or M23” is shared by each member of the group, including the applicant, and is not a fear of persecution. The Tribunal finds that the characteristic is so fundamental to the applicant’s identity that he cannot be forced to renounce it. The Tribunal finds this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. The Tribunal finds that the applicant will be at even higher risk of suffering systemic and discriminatory conduct given that there is a real chance that the applicant will be detained because he is without national identification cards and that he has no family members to bail him out of detention and that security forces have been found to operate with impunity in the DRC.
Given that the serious harm will be inflicted by security forces at any point across the country, and that he cannot return to the Eastern provinces given the conflict and dire security situation there, the Tribunal finds that the real chance of persecution relates to all areas of the DRC as required by s 5J(1)(c) of the Act.
The Tribunal finds that effective protection measures, as defined in s 5LA Act, would not be available to the applicant given that the perpetrators of the harm include the authorities.
For the above reasons, the Tribunal finds the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing:  27 March 2025
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.
…