2117528 (Refugee) - [2024] ARTA 59

DECISION AND
REASONS FOR DECISION
2117528 (Refugee) [2024] ARTA 59 (18 November 2024)
Respondent: Minister for Home Affairs

Tribunal Number: 2117528
Tribunal:General Member C Cosentino
Date:18 November 2024

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 18 November 2024 at 10:35am
CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – political opinion and membership of particular social group – member of opposition political party and woman without male protection – detained, sexually abused and tortured, and husband killed – escaped or released and left country with help from church pastor – summonses and warrant issued – physical and mental health – no contact with children – country information – change of government but security forces continue to act independently and with little accountability – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(a), (c), 5L, 5LA, 36(2)(a), (aa), (2A), 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 8 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 20 September 2017. 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 15 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant provided the following information in her protection visa application:
·She was born in Kisangani, Orientale, DRC.
·She was born in [Year].
·She is a Congolese citizen by birth.
·She is widowed.
·Her DRC passport expired in 2021.
·She arrived in Australia [in] March 2017.
·Her previous addresses in the DRC were as follows:
o[Commune 1], Kinshasa, DRC from February 2016 to March 2017
o[Commune 2], Kinshasa, DRC from October 2011 to February 2016
o[Commune 3], [City] DRC from May 2005 to October 2011
o[Commune 4], Kinshasa, DRC from August 1990 to May 2005
·Her claims in her protection visa application have been summarised by the delegate in the delegate’s decision as follows:
oThe applciant is a widowed mother to [children]; all of her children reside in the DRC. Her niece, with her [children] and husband, reside in Australia. They invited the applicant to visit Australia and sponsored her Visitor visa application.
oShe fears being returned to the DRC. She “will be arrested and thrown into jail”. She will be “killed this time”. Returning to the east of DRC would not be a safe option, as the area “is still experiencing war between rebel groups and the army, and many have been killed there”. The authorities won’t protect her on her return because it was the authorities who arrested, tortured and humiliated her, due to her “political convictions” and “rising for the organisation of the elections”.
oShe was previously arrested by Government forces, tortured and humiliated. She was stripped naked and inappropriately abused/touched. She didn’t seek help as the DRC is ruled by a dictator, with all institutions under the control of President Kabila and his forces. She did not try to live elsewhere.
oShe departed the DRC legally [in] March 2017, via the airport at Kinshasa.
oSince departing the DRC, two summons for her to report to the police have been issued.
Statement of claims
The applicant provided a statement of claims as part of her protection visa application as follows. These claims have been summarised by the delegate in the delegate’s decision as follows:
·The applicant lived in [City] in East DRC from 2005 to 2011. When she and her family fled army and rebel fighting in October 2011, moving to Kinshasa, they lost their home and fields.
·In 2015, she became a member of the main opposition party, the UDPS (Union for the Democracy of Social Progress).
·On 17 January 2017, the General Secretary (Jean Marc Kabund) sought mobilisation of UDPS members, with the aim to organise the December 2017 elections. The 17 January 2017 meeting was held one week before the UDPS President, Etienne Tshisekedi, left the DRC for a medical appointment in Belgium. After the 17 January meeting, the applicant faced verbal threats from the police and military stationed near the party headquarters in Kinshasa.
·On 1 February 2017, the applicant and other UDPS members was informed of the death of Tshisekedi in Belgium. Since his death, UDPS members faced threats; some party members were abducted.
·[Day 1] March 2017, the applicant and other members were at the UDPS headquarters, making arrangements for Tshisekendi’s funeral. Government security officers fired tear gas, wounding and arresting UDPS members. The applicant was abducted while trying to flee. She was taken to a gaol in [Location], which was run by the ANR (Agence National de Renseignement). The applicant was tortured; her cell was unsanitary, she was stripped naked in front of other male prisoners and the officers, spat on and inappropriately touched and abused. She was threatened with death and interrogated for her role in the “so-called conspiracy to create a popular uprising to overthrow power in case of repatriation of the body of (our) president”.
·On [Day 2] March 2017, the applicant was crying when she was approached in her gaol cell by an ANR officer; she was told her situation was serious and that she faced execution. The ANR officer asked the applicant whether she was of the same ethnicity as Tshisekendi. When the applicant replied that she was of Swahili ethnicity, from the eastern province, the ANR officer was surprised they were of the same ethnicity. The applicant asked the ANR officer to advise her family of her whereabouts, as she was worried about them not knowing where she was being held. She gave her pastor’s details to the ANR officer, as a contact point.
·The applicant’s pastor visited at the gaol. Through his connections with the army, the pastor arranged the applicant’s escape from custody on [Day 3] March 2017. Her escape was via a police vehicle, in which she was hidden. She was dropped to the pastor; he took the applicant to his home. He told the applicant she needed to leave DRC quickly. The applicant already had a Visitor visa for Australia; she left DRC [Day 4] March 2017 with minimal hassle.
·The pastor advised the applicant that he received summonses in April and August, directing the applicant to report to the police. She is afraid she will be killed on return to DRC. Her children are living in hiding, with various friends in and around Kinshasa.
Supporting documents
The delegate in the delegate’s decision outlined the applicant’s supporting documents:
·Uncertified French language document, titled ‘Presidence Du Parti’. The document details the applicant’s name, date of birth, parents’ names, photograph, UDPS registration details and UDPS on the letterhead.
·Uncertified French language document, titled ‘UDPS Carte de Membre’.
·Uncertified French language document, titled ‘Pro Justitia, Mandat De Comparution’, addressed to the applicant, dated April 2017.
·Uncertified French language document, titled ‘Pro Justitia, Mandat De Comparution’, addressed to the applicant, dated August 2017.
·Uncertified French language document, appearing to be a member card (number 11181) for the UDPS. The document details the applicant’s name, address, ‘fonction’ of combattante, ‘qualite’ of membre, ‘date of d’echeance’ of 31 December 2015.
·Uncertified French language document, titled ‘Presidence du Parti – Le Secretaire General’, with UDPS referenced on the letterhead, dated 15 June 2017.
Interview before the delegate
The applicant attended an interview before the delegate and provided further oral evidence in support of her claims at that interview with the assistance of a Congo Swahili speaking interpreter. The Tribunal has listened to that interview.
Post- interview submission
The Tribunal notes the delegate’s summary of the post-interview submission below:
·Post interview, the applicant submitted an email, with an attached document, in the French language. The two pages are uncertified; the first is in French and the second is an English language translation. The document is dated [March] 2021, purported to be issued by the National Intelligence Agency of the DRC. The letter states the applicant, by name, and two others as ‘wanted persons’, due to “inciting revolt, mobilising young people, initiating acts aimed at overthrowing the regime, and invasion of a jail premises in an obscure manner”.
Evidence before the Tribunal
Pre-hearing material
The applicant provided the following further supporting documents to the Tribunal as follows:
·A copy of a “Wanted Persons” warrant from “National Intelligence Agency, Department of Internal Security (DSI)” relating to the applicant and other persons, translated into English from a French document, dated [March] 2021.
·Online News Report (US News) dated 1 November 2021 titled “UN accuses Congo Army of Beating Human Rights Defender to Death”.
·United Nations article (UN News) dated 10 September 2021 titled “Human Rights abuses intensifying in eastern DR Congo – UNHCR”.
·Amnesty International report of the DRC – 2020
·United Nations article (UN News) dated 7 July 2021 titled “DR Congo sees fresh government impetus to fight unrelenting violence in the east”.
·Human Rights Watch article dated 15 September 2021 titled “DR Congo: Massacres persist despite martial law”.
The applicant provided a further statutory declaration in support of her claims. The statutory declaration was made on 8 August 2024. A summary of that statutory declaration is as follows:
·She was originally forced out of her village because of the war that raged in the DRC.
·She joined the Union for Democracy and Social progress (UDPS) because she was looking to make a difference in her country.
·She was arrested in 2017 after assisting in the funeral arrangements of, the former President of the UDPS, Etienne Tshisekedi. Police attacked her and those gathered. She was arrested and put in prison. There she experienced rape and physical harm. She has scars on her body because of her time in prison. If she returns to the DRC she will be killed.
·While in Australia, she has had little support and has not been able to work. Her health has deteriorated.
·She is unable to speak about the trauma that she experienced back in the DRC. She suffers mentally, emotionally and physically because of her experience.
·Her family is originally from [City] in the Northeastern DRC. Her parents have both died. Most of her [siblings] have died.
·She misses her children. She is unable to speak to them as she has lost contact with them. It is hard to know where her family are.
·She is now widowed.
·She left [City] before going to Kinshasa to live. She left [City] because the rebels killed many people there and destroyed their home. They ran for their lives at the time. While in Kinshasa she worked in menial work and found it very difficult to support her children.
·The applicant and her husband joined the UDPS in 2015. She assisted on a voluntary basis. She wanted to help her country by supporting the people through her activities. Her role also required her to issue ID cards to members of the party and to bring people into the party. Her husband worked for [Mr A] as his assistant.
·The applicant wanted to help in making a change from President Kabila and his party through the UDPS, having experienced herself the president’s abuse and violence in her home village of [City].
·On 17 January 2017, the Secretary General of the UDPS, Jean Marc Kabund, asked members to attend a meeting at headquarters for a large mobilisation of supporters of the UDPS in response to, among other things, the 31 December 2016 agreement for the organisation of the elections in December 2017 in opposition to President Kabila and his party. On the way back home from that meeting, the applicant suffered harassment and monitoring of the police.
·On 1 February 2017, Etienne Tshisekedi died in Belgium.
·On [Day 1] March 2017, the applicant and her husband attended a meeting at UDPS headquarters for a general meeting about funeral arrangements for Etienne Tshisekedi. However, a large force of police went to the headquarters and, in her attempt to escape, was arrested and taken to detention in [Location] “ANR” where she was subjected to “torture, humiliation”. She was raped and assaulted. Her husband was also arrested. She never saw her husband again. She was later told he had been killed.
·While in prison she suffered torture and interrogation about a “so called plot to create disorder in Kinshasa, and a popular uprising”.
·On [Day 2] March 2017 she was told that she would be executed.
·On [Day 3] March 2017, thanks to her pastor, she was freed from prison. Her pastor assisted her to leave the country quickly and she was able to leave for Australia on [Day 4] March 2017.
·During her time in Australia, her pastor told her that a warrant for her arrest had been issued.
·She describes how she has been greatly affected mentally and physically from the ordeal in the DRC.
·She states that she will not be given state protection as she is wanted by the authorities, and it is the authorities who have targeted her.
·She states that she has no other place to hide within the DRC.
The Tribunal received a medical report relating to the applicant dated 25 July 2024. The assessing doctor diagnosed, among other things, that the applicant was “suffering from time-to-time reactive depression due to her social circumstances and her lack of [inclusion] in the community.” He also reported that she has had a “high risk cervical screening” which will require an operation.
Tribunal hearing – 15 August 2024
At the hearing, the applicant was supported by her Pastor and a friend.
The applicant gave oral evidence in support of her claims at the hearing as follows:
·She fears returning to the DRC because of what happened to her husband and what happened to her when she was imprisoned there.
·She was imprisoned in March 2017.
·She does not recall who was arrested with her on that day. She recalls that there were many people arrested with her on that day. They were arrested in Kinshasa.
·As a member of the UDPS her role was to help in the recruitment of more members. Her husband was also a member of the UDPS as well.
·She was renting a house at her previous address in [Commune 1]. She does not know if her children are living there now. She has no home to go to in [Commune 1].
·Before that, she had been living in [Commune 2]. She was only renting there as well. Her children are not living there. It is a long drive from the airport to [Commune 2]. She said that security forces would target her if she landed in Kinshasa.
·She left [City] with her family because of the violence at the time. She lost her home. They escaped to save themselves.
·She has a sister living in Kinshasa, but she is very sick.
·When asked about her arrest warrant which she provided to the Tribunal, she stated that it was given to her by her Pastor in the DRC who has stated in touch with her.
·When the Tribunal put to her questions about the arrest warrant, the applicant stated that she never saw her husband again after they were detained. The names on the arrest warrant did not name her husband. They were not related to her at all. She stated that her husband is dead.
·When asked why she thought the authorities or the government could not protect her considering that President Kabila and his party were now removed from government, she stated that the security forces will still do harm to her. There were many who fled. The security forces, and not the government, are still looking for her and others who have escaped.
·She stated that she would be targeted as a single woman if she was to return.
·She does not know where her children are in the DRC. She has not been able to contact them while in Australia. She has no money and no ability to speak to them. She has no contact numbers to call. She is not working in Australia. She is struggling terribly in Australia. She has a serious health condition as well. She struggles mentally and physically.
Post-Hearing submissions
The applicant provided a letter from the [Organisation] dated 4 September 2024 informing that the applicant had seen them and was due for a future assessment. At the time of decision, there was no assessment of the applicant that had been provided to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. This decision and statement of reasons is made by the Tribunal.
Criteria for 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 (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.
In the decision record, the delegate accepted from the evidence before it that the applicant was a citizen of the DRC. As there is no evidence before the Tribunal to the contrary, the Tribunal finds that the applicant is a citizen of the DRC, and that the DRC is her receiving country for the purposes of assessing her claims for protection.
The Tribunal is mindful of the medical report provided and dated 25 July 2024 when speaking to the applicant at the hearing. The Tribunal notes the diagnosis in that report that the applicant was experiencing “depression”. The Tribunal observed how the applicant presented herself at the hearing and responded to questions asked of her by the Tribunal. It observed her severe anxiety throughout the entirety of the hearing and her need for support of those around her. Therefore, given the diagnosis in the medical report of the applicant’s depressive state and the Tribunal’s own observations of the applicant at the hearing, the Tribunal places little weight on minor inconsistencies arising on timelines and particular experiences arising from her imprisonment. The Tribunal finds that the applicant has been generally consistent from the outset about the events that took place in 2017 as a member of the UDPS, including her sexual assault at the hands of security forces while in prison.
The main issues arising from her protection visa application, her pre-hearing evidence and her oral evidence presented at the Tribunal are as follows:
a.That the applicant fears that she will suffer serious harm for reason of her previous membership of the UDPS party, when it was not in power in the DRC.
b.That her involvement as a member of the UDPS party had already brought her to the attention of the security forces in Kinshasa in 2017, resulting in her being imprisoned along with a number of other UDPS party supporters.
c.That she was sexually assaulted while in prison in 2017.
d.That she was helped to “escape” from prison by her Pastor who had connections with the army.
e.That she soon, thereafter, departed the DRC for Australia with the assistance of her Pastor.
f.That she has not returned to the DRC because of her fear of suffering further arrest and detention by security forces either upon arrival at the airport or at any of the army roadblocks on her way back to Kinshasa or at any time that she is residing back in Kinshasa.
g.That her fear is compounded by the fact that, as a single woman with no male support in her arrival at the DRC or her travels to her home area in Kinshasa or while living in her home area in Kinshasa, any arrest and detention resulting from her arrest warrant, no matter how temporary, will result in her being sexually assaulted again.
h.That her fear is further compounded by her depression which will not enable her to function fully in such a stressful environment were she to return, thus making her more vulnerable to any serious harm, on top of her being a single woman returning to the DRC, who is a person of interest to the security forces.
i.That she is unable or unwilling to avail herself of the protection of the authorities who she actually fears.
j.That the harm relates to all areas of the DRC.
The Tribunal finds on the evidence before it that the applicant can only return to her home area of [Commune 1], Kinshasa, which is her last place of residence for several years before coming to Australia. The applicant has provided evidence at the hearing that she does not have any home to go back to either in [Commune 1], Kinshasa or [Commune 2], Kinshasa where she lived (and rented only) for several years prior to living (and renting) in [Commune 1], Kinshasa. It accepts on the evidence before it that she has no family to support her given that she has lost contact with them. It accepts that she has a very ill sister who cannot support her in Kinshasa and that she has no contact with her children in either Commune. It accepts on the evidence before it that she has no male support whatsoever were she to return to either [Commune 1], Kinshasa or [Commune 2], Kinshasa. The Tribunal accepts on her evidence that she escaped with her family from [City] in Northeastern DRC in 2011 during the conflict and that that she cannot return to her [City] home which was destroyed at the time.[1]
[1] [Reference]
The Tribunal accepts, on the evidence of the UDPS membership card, that the applicant was a member of the UDPS party. The Tribunal finds her evidence (given in her protection visa application, and in her subsequent statement of claims and statutory declaration0 relatively consistent about her active role in the UDPS party but does not find on that same evidence that her role as a member reached a high profile level. However, it accepts her evidence that this role would have brought her to the attention of President Joseph Kabila’s loyal security forces at the time in Kinshasa in 2017; not because of any profile that she had herself but because of her active presence with other UDPS party members who, together in carrying out their activities, drew the adverse attention of the security forces to themselves at the time.
The Tribunal notes that she gave evidence in her statutory declaration that she was arrested and detained by security forces on or about [Day 1] March 2017, along with other a number of other UDPS members. The applicant states that it was during this detention that she was raped and sexually assaulted and suffered serious harm at the hands of security forces, and because she was a UDPS member. The Tribunal notes that she has been consistent with her claims of suffering sexual assault at the hands of security forces in Kinshasa from the outset in her protection visa application to her Tribunal hearing. The Tribunal is not presented with any evidence that might contradict this claim.
The Tribunal is mindful of news reports which support the applicant’s claims that person’s opposing president Kabila were arrested and mistreated in prisons across the country in 2016 and 2017. Thus, Human Rights Watch 2017 report on the DRC reported:
Political violence and government repression intensified in 2016 as President Joseph Kabila clung to power beyond his constitutionally mandated two-term limit, which ended on December 19, 2016, despite widespread opposition and international condemnation. As authorities deliberately stalled plans to organize elections, government officials and security forces systematically sought to silence, repress, and intimidate the growing coalition of voices calling for credible, timely elections.
… … …
More than 100 activists and opposition leaders or supporters were arbitrarily arrested between January and December 2016, and held for at least 48 hours. Some were held incommunicado for weeks or months and badly mistreated, while others were put on trial on trumped-up charges. At time of writing, at least 35 activists and political prisoners remained in detention.[2]
[2] Human Rights Watch 2017 World Report: Democratic Republic of Congo; World Report 2017: Democratic Republic of Congo | Human Rights Watch
A Guardian online news article dated 26 January 2018 reported on the thousands of human rights violations carried out by security forces on the general population in the DRC. In particular:
“State agents” in the Democratic Republic of the Congo carried out 1,176 extrajudicial killings last year, according to a report published by the United Nations mission in the central African country.
The report says at least 89 women and 213 children were among the dead. The number of extrajudicial killings had tripled over the past two years, and Congolese armed forces were responsible for 64% of the total, the UN said.
The findings will deepen international concern about the growing violence in the DRC, where there has been political and ethnic unrest and where militia groups have carried out attacks.
On Sunday security forces shot dead at least six people and wounded dozens more as they fired teargas to disperse demonstrations organised by the Catholic church. The protest was the latest in a series since President Joseph Kabila refused to step down at the end of his mandate in December 2016.
Scores of people have been killed and hundreds arrested in Kinshasa, the capital, and elsewhere during the crackdown. The exact number of detentions is unclear but may be as high as 600.
The Catholic church has taken a leading role in recent months in organising and unifying opposition to Kabila’s continued rule. On New Year’s Eve, Congolese forces killed at least seven people in Kinshasa during a protest by Catholic activists.
Cardinal Laurent Monsengwo, the head of the church in the DRC, on Tuesday condemned the crackdown on pro-democracy protesters. “How can you kill men, women, children, youths and old people all chanting religious songs, carrying Bibles, rosaries and crucifixes? Are we now living in an open prison?” Monsengwo asked.
Across the country, the UN recorded a total of 6,497 human rights violations and abuses in 2017, a rise of more than 25% over 2016, which itself saw a 30% rise over 2015.[3]
[3] Jason Burke, “Congo 'state agents' murdered hundreds in 2017, says UN report”, 26 January 2018; Congo 'state agents' murdered hundreds in 2017, says UN report | Democratic Republic of the Congo | The Guardian
The Tribunal finds that both these independent sources, while not directly related to the applicant’s specific circumstances, support the applicant’s claims of a security force acting with impunity against the general population in the DRC and specifically targeting opponents of the ruling party of the time. The Tribunal finds from these articles that, by acting with impunity, it was highly plausible that they had detained the applicant as a UDPS member at the time in question.
The Tribunal also notes from country information that, given the impunity of security forces throughout the DRC during 2016 and 2017, women suffered significantly high levels of sexual assaults. Thus, Human Rights Watch World Report 2017 report stated:
Dozens of armed groups remained active in eastern Congo. Many of their commanders have been implicated in war crimes, including ethnic massacres, killing of civilians, rape, forced recruitment of children, and pillage.[4]
[4] Human Rights Watch 2017 World Report: Democratic Republic of Congo; World Report 2017: Democratic Republic of Congo | Human Rights Watch
Another independent source reported that “[t]he DRC is considered one of the most dangerous places to be a woman or girl. Gender-based violence, particularly sexual violence and child marriage, are widespread.”[5] Given the overwhelming evidence of sexual assaults occurring with impunity on women throughout the DRC, the Tribunal accepts the applicant’s claims that she was sexually assaulted and tortured while detained in [Location] in 2017.
[5] Dana Kirkegaard, USA for UNFPA, The Democratic Republic of Congo, No Matter What - USA for UNFPA
The Tribunal notes the applicant’s claims in her statutory declaration presented to the Tribunal that she was detained in the National Intelligence Agencies’ “[Location] ‘ANR’” in Kinshasa. There is some doubt in the Tribunal’s mind that she could then depart undetected at the international airport at Kinshasa when airport security includes processes managed by ANR.[6] However, even given this doubt, the Tribunal has also considered as plausible the applicant’s claims that the Pastor who arranged for her to leave “[Location]” detention had “knowledge in the army” thus giving him an ability to free the applicant into his custody albeit quietly. The Tribunal has also considered that, if that was the case only eight days prior to the applicant departing the DRC, it is all together plausible that there had been no information about her passed onto the ANR as a security threat (if she was ever deemed a security threat) thus allowing her to depart Kinshasa international airport without attention being drawn to the ANC.
[6] ‘Country policy and information note: unsuccessful asylum seekers, Democratic Republic of the Congo, January 2020’, UK Home Office, January 2020.
The Tribunal has been provided with an arrest warrant by the applicant which names her as a person of interest and ordering her arrest. The warrant states that the applicant has disappeared from prison on a date matching that given by the applicant in her statutory declaration. It provides information in the warrant that is consistent with the applicant’s details of her escape or assisted release from prison. While the Tribunal might have some doubts about how this document came into the applicant’s possession so long after she had departed from the DRC and while she was in Australia, it does not have before it any other information provided by the department or the applicant which would enable it to draw a conclusion that this document is not genuine. Given that it cannot conclude on the evidence before it that this document is not a genuine document, the Tribunal must therefore accept that it is genuine. It follows therefore that the Tribunal must therefore accept that the applicant will be of interest to security forces either at the international airport if she was to return to the DRC or later in her travels back to her home area going through various checkpoints.
Given the Tribunal’s assessment above, the Tribunal accepts that the applicant has worked as an active UDPS party member, that she was arrested and detained in 2017 for UNDPS activities by security forces, that she was sexually assaulted while detained, that her pastor arranged for her release, that she departed the DRC at Kinshasa’s international airport unnoticed only eight days after leaving detention, that an arrest warrant has been issued for her unexplained release from detention in 2017 and that she is a single women returning without male support to the DRC.
Does the applicant satisfy the refugee criterion for protection?
The question the Tribunal faces now is whether there is a real chance she will suffer arrest, detention and further sexual assaults by security forces if detained and with no male support. The Tribunal finds on the evidence before it that there is a real chance that she will suffer serious harm by way of sexual assault and/or torture were she to be detained if she returned to her home area of the DRC in the reasonably foreseeable future.
While the Tribunal is mindful of the UK Home Office Country Policy and Information Note Country: Congo (Democratic Republic of) - Unsuccessful Asylum seekers, September 2023 which states that “Unsuccessful asylum seekers who return to the Democratic Republic of Congo – voluntarily or by force; using a passport or a travel document obtained through the redocumentation process – are not at risk of persecution or serious harm”, it is also mindful of its conclusion that “[d]ecision makers must consider each claim on its facts”. In the applicant’s case, the Tribunal must consider the following facts (which it has accepted) of the applicant when looking into the reasonably foreseeable future:
a.The applicant was arrested and detained by security forces in 2017
b.She was sexually assaulted in prison during her detention
c.She was assisted in her release by her pastor through his “knowledge of the army” at the time
d.She escaped the DRC through the international airport at Kinshasa
e.A warrant has subsequently been issued for her arrest and detention
f.That she is a single woman with no male support if she returns
The Tribunal is mindful that President Kabila and his party is no longer in power and that the UDPS party is the governing party headed by President Felix Tshisekedi.[7] However, the Tribunal is mindful that the DRC security apparatus continues to operate with impunity and with very little accountability throughout the DRC. Thus, and on point, a United Nations General Assembly report (25 August 2023) stated that “[d]uring the reporting period [alone], 314 individuals (71 soldiers of the Armed Forces of the State, 20 Congolese National Police agents, 143 members of armed groups and 80 civilians) were convicted for human rights violations and abuses amounting to international crimes”.[8]
[7] Ange Adihe Kasongo, 16 January 2024, Reuters, President Tshisekedi's ruling party leads in Congo legislative election | Reuters
[8] United Nations General Assembly, 54^th Session, 25 August 2023, “Human rights situation and the activities of the United Nations Joint Human Rights Office in the Democratic Republic of the Congo Report of the United Nations High Commissioner for Human Rights”, g2316383.pdf
Given this report and given its acceptance of the facts above pertaining to the applicant, the Tribunal finds there is a real chance that the applicant will either be detained at the international airport or be detained in her travels back to Kinshasa or at any time afterwards in her home area of [Commune 1], Kinshasa (given the arrest warrant issued for her). The Tribunal notes the UK Home Office Travel advisory which states that:
FCDO advises against all but essential travel to the N1 road in Kinshasa Province, between and including Menkao to the west, Kenge to the east, the border of Mai-Ndombe province to the north, and 10km to the south. There has been fighting between local militia and Congolese Armed Forces on this section of the N1 road. There are checkpoints on the road and reports of access being blocked (emphasis added). The authorities advise to travel during daylight hours.
FCDO advises against all but essential travel to the district of Kasa Vubu in Kinshasa City, bordered by the N1 Triumphal Road (Stadium), Barumbu District, Lingwala District and the south of the botanical garden, due to the risk of violent crime.[9]
[9] UK Home Office FDCO, Regional risks - Democratic Republic of the Congo travel advice - GOV.UK

Given that the Tribunal finds that there is a real chance the applicant will be detained in the reasonably foreseeable future whether at the airport upon return, at checkpoints on the way back to her home area, or at any time while residing in Kinshasa, it also finds on the independent country information before it that there is a real chance that she will be sexually assaulted in the reasonably foreseeable future were she to be arrested and detained[10]. It finds that there is a real chance that, were she detained, that such sexual assault will be perpetrated against her by security forces, given the recent UN Security Council report that the DRC security apparatus continues to operate with impunity and with very little accountability throughout the DRC.[11] “Sexual assault” will amount to “serious harm” as set out in s 5J(5) of the Act in that “sexual assault” would amount to either a threat to the person’s life or liberty; significant physical harassment of the person; or significant physical ill treatment of the person.
[10] Dana Kirkegaard, USA for UNFPA, The Democratic Republic of Congo, No Matter What - USA for UNFPA
[11] United Nations General Assembly, 54^th Session, 25 August 2023, “Human rights situation and the activities of the United Nations Joint Human Rights Office in the Democratic Republic of the Congo Report of the United Nations High Commissioner for Human Rights”, g2316383.pdf
The Tribunal finds that any arrest warrant issued against the applicant will not consider her political affiliations as a UDPS member as it has been issued by the National Intelligence Agency and not by government officials and that anyone following the orders of the warrant will carry it out by detaining the applicant first. Given that the Tribunal has assessed country information to show security forces operating with impunity, and given the Tribunal’s assessment that women are at very high risk of sexual assault (a finding of fact already made by the Tribunal about her time in detention in [Year]), the Tribunal has significant concerns that any time the applicant is placed in detention, no matter how brief or transitory, will put the applicant at high risk of being sexually assaulted again and being retraumatised again.
The Tribunal finds that the applicant fears persecution for reasons of her membership of the particular social group, ‘women without male support”. The Tribunal finds this group to satisfy the definition in s 5L as the characteristic of women without male support 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 she 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, a single female, will be detained because of an arrest warrant that has been issued against her and that she will have no male protection in detention as a single woman, and that security forces have been found to operate with impunity in the DRC and to committed sexual assaults on women with impunity.
Given that the arrest warrant is valid across the entire DRC, 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.
The Tribunal finds that the applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution as she cannot alter her gender identity.
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: 15 August 2024
Representative for the Applicant: Ms Jennifer Nugent
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.
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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.
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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.
…