2117927 (Refugee)
[2025] ARTA 1704
•30 June 2025
2117927 (Refugee) [2025] ARTA 1704 (30 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2117927
Tribunal:Clyde Cosentino
Date:30 June 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 30 June 2025 at 11:05am
CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo (DRC) – race – Babembe ethnicity – imputed political opinion – associated with militia – DRC militia Mai Mai – Rwanda militia M23 – Burundi militia Imbonerakure – trauma of conflict and loss – fears persecution – armed rebel groups – continued violence between armed groups – real chance of suffering serious harm or death – no identification cards – real chance of arrest or detention – harsh and life-threatening prison conditions – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2Any 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 22 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 from the Congo, Democratic Republic of (the DRC), applied for the visa on 23 September 2019. 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 1 May 2025 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. The representative attended the Tribunal hearing.
BACKGROUND
Protection visa applcation
The applicant is [an age-year-old] male from the DRC.
He was born in Fizi, South Kivu, the DRC.
He is of Babembe ethnicity.
He claims his parents are deceased and that his siblings are either deceased, living in areas unknown to him or living in Burundi.
He last travelled to Australia on a visitor visa [in] September 2019. The travel document he travelled on to Australia has since expired.
He claims he was successfully assessed as a refugee in Burundi in January 2002.
He claims to have fled the DRC in 2002 and remained in Burundi (granted refugee status only) until 2019.
He claims to have lived in [Location 1], Fizi, South Kivu, the DRC from 1976 to 2002 and in Bujumbura, Burundi from 2002 until 2019.
He claims that he is a citizen of the DRC.
He claims to speak, read and write Swahili, French and Swahili.
His protection claims are as follows:
·He claims he escaped the DRC in 2002 because his father was approached by the Mai Mai militia wanting to recruit the applicant in their group at the time. His father refused and was killed by the Mai Mai. The Mai Mai militia subsequently searched for the applicant. The applicant fled to neighbouring Burundi as a result. He left Burundi in September 2019 and came to Australia when his [age]-year-old [child] tragically drowned. He claims that in the DRC, the Mai Mai militia threatened to kill him and traumatised him while he was hiding and trying to escape from their attack.
·He claims that in the DRC he fears being killed by the Mai Mai militia. He fled the DRC because they were looking for him. In Burundi, he fears the ruling party militia group, Imbonerakure who tried to force him to join them there. He did not want to join them and made a conscientious objection to do so. He claims that they tried to get him to join them because he was a refugee.
·He claims that he was unable to seek help as both the Mai Mai in the DRC and the Imbonerakure in Burundi are backed by their respective governments. The governments in both countries are aware of the activities of these militias but do nothing about it.
·He claims that he sought refuge in Burundi after escaping the DRC.
·He claims that if he returns to the DRC, he will be killed because the Mai Mai militia group have intensified killings on civilians. He states that the Imbonerakurein Burundi are killing people in targeted and random attacks as well.
·He claims that the authorities of the DRC or Burundi cannot and will not protect him.
·He claims that he cannot relocate safely within the DRC or Burundi given the war and violence that effects both countries.
In his protection visa application, he provided several documents in support of his claim including:
·A copy of his travel card to Australia.
·A copy of ‘Carte d’Idntite pour Refugie’’ (Refugee Identity Card) from the Republic of Burundi (Burundi).
·A support letter from [an Australian pastor].
·Submissions from his authorised representative (lawyer).
·Online articles and country information relating to the Mai Mai in the DRC and the Imbonerakurein in Burundi.
Department interview – 8 October 2021
The applicant attended an interview with the department on 8 October 2021. The applicant gave oral evidence in support of his claims at that interview.
Post-interview submissions
On 20 October 2021, the applicant (through his lawyer) provided a two-page submission, various news articles and media reports relating to violence in the DRC and Burundi, and a certified copy of a birth certificate for the applicant’s Australian born [child]. The applicant maintained in the submissions made on his behalf that he was, and continues to remain, of adverse interest to the Mai Mai militia group in the DRC.
Delegate’s decision
Having made their own assessment of the evidence before it at the time, 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
On 30 November 2021, the applicant lodged with the Tribunal an application for review of the decision made by the delegate to refuse to grant the applicant a protection visa. The applicant provided a copy of the delegate’s decision with his application for review.
On 24 April 2025, the applicant’s lawyer provided a number of supporting documents relating to the human rights violations and threats in the DRC and Burundi respectively.
On 24 April 2025, the applicant’s lawyer provided a 19-page submission in support of the applicant’s review.
On 24 April 2025, the applicant provided the following written statement in support of his review:
I am writing to respectfully request the reconsideration of the decision to refuse my Protection Visa application. I fully understand that the decision was based on an evaluation of the facts and evidence presented, but I ask for your compassion and understanding in reviewing my case once more. The impact of this refusal affects not only my legal status, but also the emotional, physical, and psychological well-being of my entire family. We are at a breaking point and returning to the Democratic Republic of Congo (DRC) or Burundi would have devastating consequences.
MY STORY
The central issue I must stress is that the safety, security, and stability I have found in Australia are irreplaceable. Australia has given me and my family the opportunity to heal after years of unimaginable trauma, but we need the chance to continue this process. Without it, we are at risk of falling into deeper despair and harm. I ask you to consider the broader context of my case: the psychological damage we’ve endured, the lack of mental health infrastructure in the countries we fled, the safety risks we would face if forced to return, and the devastating impact this would have on my ability to support my family.
1. Trauma from Conflict and the Emotional Scars
I fled the DRC in 2002, a country engulfed in violent conflict. My life in the DRC was characterized by constant fear, displacement, and loss. The years of fighting, the atrocities witnessed, and the loss of my father to militia violence have left deep emotional and psychological scars. The DRC was a place where violence was not just around me but inescapably woven into the fabric of daily life.
Despite the official end of the war, conflict continues to rage in parts of the DRC, particularly in the east, where I am from. Armed militias such as the Mai Mai are still active, causing further devastation and creating an atmosphere where survival is uncertain. My ethnic background and history with the militias place me in imminent danger if I were to return. I cannot stress enough how returning to such an environment would not only jeopardize my life but would likely reignite the emotional trauma I’ve tried so hard to recover from.
2. The Drowning of My [Child] and the Deepening of My Grief
In 2019, after arriving in Australia, I faced a tragedy that further deepened my trauma—the drowning of my [age]-year-old [child, Child A], in [a river]. [Child A’s] loss, particularly as a twin, has left a profound emotional void. My grief has been compounded by anxiety and depression, which have become overwhelming since [the] death. This event has left an indelible mark on my mental health, further intensifying the psychological toll of my previous experiences.
The tragedy of losing my [child, Child A], in 2019, is a wound that remains open and raw in my heart. I have struggled with the grief of [the] loss every day since that tragic event. Losing a child is an agony that no words can adequately describe. My mental health has been severely affected by this tragedy, and the grief has triggered a deepening of my already existing issues with anxiety and depression.
What makes this grief even more unbearable is the sense of helplessness I feel. I cannot even begin to heal from the trauma of [the] loss because of the overwhelming grief and depression I face daily. The loss of my [child] was not just a personal tragedy but has left my family emotionally fractured. The emotional and psychological burden on all of us has been profound. The emotional support I offer my family is limited by my own inability to cope with the loss. I fear that without proper treatment and support, I may not be able to help them as they navigate their own grief.
Australia has provided me with a safe place to process this loss and the emotional scars of my past. I have sought help from mental health professionals here, and while recovery has been slow, it is a process that I cannot abandon. If I am forced to return to the DRC or Burundi, I will not have access to the proper mental health care I need. The lack of understanding and resources for mental health in both the DRC and Burundi means that I would be left to face my trauma alone, worsening my condition and potentially leading to irreversible psychological damage.
3. The Risk of Persecution if I Return to the DRC or Burundi
Returning to the DRC or Burundi is not just a matter of facing personal grief—it is a matter of survival. Both countries present extreme risks to my safety, which I cannot ignore.
In the DRC, I fled because of violence from the Mai Mai militia, and although the war officially ended, armed groups continue to operate in areas where I am from. Militias are still targeting civilians, and I am at particular risk due to my ethnicity and the history I have with these groups. I have no assurance that I would be protected, nor would I have the support of a functioning state to ensure my safety. My identity and background would make me an immediate target for violence or exploitation.
In Burundi, while I initially sought refuge there, the political situation remains unstable, and I was again targeted by the ruling regime’s militant groups. These groups, particularly the Imbonerakure, have a history of persecuting perceived enemies, and I have already been threatened by them. As someone with a refugee background and ethnic minority status, I would be at extreme risk in Burundi as well.
Both countries would expose me to the risk of violence, abuse, and death, which would not only violate my human rights but would also cause a severe setback to my mental health and recovery process. The fear of violence would undoubtedly bring back the psychological trauma I have worked so hard to escape.
4. The Need for Family Support and Community Healing
One of the main reasons I need to stay in Australia is the support I have here. Australia is not just a place of safety for me; it is a place where my family and I have found a community of care. We have been supported by organizations like [Support groups 1 and 2], who have helped us navigate the challenges of settling into a new country.
These organizations, along with the broader community in Australia, have been an anchor in our lives. They have provided emotional support, shared resources, and a sense of belonging that is crucial for our healing. Returning to the DRC or Burundi would strip us of this support. We would be isolated, vulnerable, and without the means to rebuild our lives. Our ability to heal from the trauma of our past would be severely hampered by the lack of a support network.
Furthermore, my ability to support my family in their emotional healing process depends on my own recovery. If I were to be sent back to the DRC or Burundi, where there are no resources for trauma recovery, the effects on my mental health would be catastrophic. Without access to adequate mental health care and community support, I would be unable to provide the emotional strength my family needs.
5. Long-Term Stability and the Impact of Forced Return
The psychological burden of being forced to return to a country where I would face danger, coupled with the emotional toll of leaving behind the community and support systems in Australia, would devastate my family’s future. The long-term impact of this trauma is something that cannot be overstated. We have begun to rebuild our lives in Australia, but the psychological scars of our past are still very much present. If we were forced to return to the DRC or Burundi, the progress we have made would be undone, and we would be left to face a future of instability, fear, and isolation.
Australia is the only place where my family can be safe, where I can continue to receive the medical care, I need to recover, and where my family can rebuild their lives without the constant threat of violence.
Hope for the Future: What Being Granted Protection Would Mean for Us
I understand that the decision you make is not just about my safety, but also about the long-term well-being of my family and our ability to contribute positively to Australian society. If we are granted the opportunity to remain in Australia, I can begin to imagine a future filled with hope rather than fear.
Healing and Recovery: The mental health challenges I have faced will still be difficult to overcome, but remaining in Australia gives me access to the professional care and community support that are essential for our healing. With time, I can begin to rebuild my life, support my family, and work towards recovery. This process is slow, but it is possible, and it is only possible if we stay in a place that offers the resources we desperately need.
Contributing to Society: I am committed to giving back to the community that has supported us. My experiences have given me a deep understanding of hardship, but also of resilience. I want to use my experience to help others who are going through similar challenges. I have already begun to involve myself in my local community and I am eager to continue this work. In Australia, I can be an active and positive member of society, helping others in need while also providing for my own family.
A Future of Stability: If we are allowed to stay in Australia, we can begin to imagine a future where we are no longer living in fear. My children can go to school and build a future for themselves, free from the threat of violence and persecution. My family can begin to heal together and support each other in ways we never thought possible. Australia offers us the opportunity to create a future of stability and hope—a future that we would be denied if we are forced to return to our home countries.
6. Language Barriers and Inadequate Translation Support
As a refugee, I faced significant language barriers during my initial visa application process. My limited understanding of English made it difficult to communicate the psychological trauma I have endured and the threats I face if returned to my home country. Additionally, the translation services provided were insufficient, preventing me from fully conveying the details of my circumstances. As a result, key aspects of my claim, particularly regarding my mental health, were not adequately understood or assessed. I believe this has significantly impacted the fairness of the decision-making process.
Conclusion:
In conclusion, I respectfully ask you to reconsider the decision to refuse my Protection Visa application, based on the grave and multifaceted reasons outlined above. Australia is the only place where I can find safety, support, and the opportunity to heal from the trauma of conflict, loss, and persecution. Returning to the DRC or Burundi would subject me and my family to significant harm, perpetuating a cycle of trauma that we are desperately trying to escape.
… … …
On 24 April 2025, the applicant provided the following in support of his review:
·Written statement from [Child B] living in Australia.
·Written statement from [Child C] living in Australia
·Written statement from [Child D] living in Australia
·Letter of support from [Support group 3], a not-for-profit advocacy and community support organisation that works closely with the Australian-African refugee and asylum seeker communities, outlining events in the applicant’s life back in the DRC and Burundi, consistent with the applicant’s claims.
·Letter of support from [a local GP clinic].
·Various articles and country information relating to the human rights situation in the DRC and Burundi respectively.
Tribunal hearing – 1 May 2025
At the hearing, the Tribunal asked the applicant a number of questions in relation to his protection claims and his application for review and why he was seeking protection in Australia. The applicant gave the following evidence:
·Before coming to Australia, he lived as a refugee in [City 1], Burundi. He was living there for 17 years. He lived there in a community.
·He was registered as a refugee in Burundi only. He was never granted citizenship or permanent resident status in Burundi. He was only recognised as a refugee in Burundi while he was living there. He has no right of entry into Burundi and does not have any right of temporary or permanent stay in Burundi. His refugee status expired a long time ago in Burundi.
·He fled the DRC with the child of his [sibling] at the time.
·South Kivu has been where he had lived all his life. Prior to escaping to Burundi, he was born in South Kivu and grew up in South Kivu.
·He has no family members living in the DRC. After the death of his father, three of his siblings escaped to [Country 1] and the rest escaped to Burundi.
·When asked to describe the area he lived in, he stated that he lived in [Location 1] which was a smaller area in the sub-region of Fizi, which, itself, was situated in the larger region of South Kivu.
·He stated he was of Babembe ethnicity.
·When asked whether Babembe people were scattered throughout the DRC or the South Kivu region only, he stated that the sub-region of Fizi is where you will find the majority of Babembe people.
·When asked why he feared returning to South Kivu and the DRC, he stated that his fear was based on him being of Babembe ethnicity and because this group is targeted by the Mai Mai. If one does not support the political ideology of the Mai Mai then one is suspected of being a traitor. The applicant stated he was not a member of that militia group and therefore will be targeted by the Mai Mai if he returned.
·When asked where the Mai Mai were formed, he stated that they formed locally in Fizi by young people at the time opposing the leadership of the DRC. The Mai Mai claim that they are looking after the interest of local people. It is hard to know who controls them.
·When asked how powerful the Mai Mai in the DRC were, he stated that they were a powerful rebel group because they have mobilised nearby tribes such as the Fulelo and Wavira tribes. They have been able to mobilise all neighbouring tribes and have influenced other tribes to join them. They have been able to recruit lots of people and soldiers to their cause. They have become very large and powerful.
·He fears that his “conscientious objection” in refusing to join as a soldier the Mai Mai rebel group, will mean that he will be seen not to align with their political ideology and values and therefore result in him being seen as a traitor and marked for killing.
·When asked why he could not return to Kinshasa if he returned, even though he had not lived there, he stated that the whole country is unstable. The rebel movements are advancing across the entire country. There is no safe area for him in the DRC. Kinshasa is not his area and not his region. He is of the Babembe tribe which is from South Kivu.
·When asked if he knew how the government treats persons coming from the South Kivu region, he stated that South Kivu is a region that has been unstable for a long time. There is a mixture of tribes there. Because that there are rebel movements in South Kivu and Eastern DRC, the government considers people from South Kivu with suspicion. He stated that the government suspects people coming from South Kivu as part of a rebel movement. He would not be safe as a result.
·When asked about whether his language would identify him from the South Kivu region, he stated that when people from South Kivu go to other regions, they know that they speak Swahili and suspect that they align with Rwanda or Burundi and that they are with rebel movements within the region there.
·When asked why he believed his father was killed in his home village in the DRC, he stated that his father was killed because he was the person who convinced the applicant not to join the Mai Mai at the time and as a result of this was killed by them. The applicant stated that he does not believe in their political ideology at all. The applicant did not want to join the Mai Mai and as a result of this decision, his father was killed.
·When asked if he was at home when his father was killed, he stated that he was not. He was at his uncle’s house at the time.
·When asked whether he returned to his home after his father’s death, he stated that he was told by his [sibling] not to come back home or he would be killed as well, so he did not go back home. He remained at his uncle’s house and then escaped across the border to Burundi. His uncle lived at the time in [Town 1], South Kivu which is the same sub-region of Fizi.
·When asked which group he fears will harm him if he returns to Burundi, he stated the Imbonerakurein. When asked why he fears that he will be harmed by this group, he stated that this group mobilised everyone to join the group for the purpose of supporting the ruling party during elections. They also wanted people to join and to support them financially. They wanted to influence everyone to support the ruling party in power. They particularly targeted refugees. The applicant was a refugee and they targeted the applicant to be one of them which he refused. This put his life at risk.
·When asked why he will not be supported for issues relating to mental health (one of his claims raised), he stated that if he returns to the DRC where there is no security this will impact on his fragile mental health. He has suffered mentally and emotionally while in Australia. This will continue if he returns to the DRC.
·When asked if there was anything else he wished to add in support of his claims, he stated that if he returned to the DRC there is another rebel movement called M23. This rebel movement is fighting the Mai Mai in that region. He will be at risk with this group and will be at risk with the Mai Mai. He cannot return to South Kivu at all. He stated that if he came across M23, they will kill him because they are fighting Mai Mai who are comprised of Babembe people. He stated that either way he will be killed, whether by Mai Mai or by M23. He is seeking protection as a result.
·His lawyer then made oral submissions on the applicant’s behalf. He stated that M23 were a Rwandan backed militia who are fighting the DRC government as a proxy for the Rwandan government. They are trying to be “proactive” in attacking the DRC. M23 is backed by the Rwanda government. He submitted that the Mai Mai rebel group are fighting M23 and are countering their attack. M23 has crossed into the DRC and the Mai Mai are fighting back. The applicant is from the region where all this is happening.
·He submitted that the Mai Mai are after younger men. M23 is operating in northern and southern DRC. The Mai Mai feel threatened by M23. The Mai Mai are trying to draw all Babembe people into their cause to fight M23. M23 is pushing back. The applicant is at risk of harm from either group.
·He submitted that the applicant is still at risk of persecution in Burundi.
·He submitted that the applicant will not be able to obtain mental support in the DRC. There are virtually no services there. The applicant has lost his [child], and this has been a traumatic experience for him.
·He submitted that the applicant has had no contact with the DRC since he escaped into Burundi in 2002.
Post-hearing submissions
The applicant’s lawyer provided the following post-hearing submissions in support of the applicant’s claims. He submitted that the applicant is a designated refugee under the “United Nations Agency for Refugees UNHCR with Registration Number: [number]”. The refugee card that was issued to the applicant in 2018 expired in 2021. The card was valid for 3 years. He attached a copy of that card. The travel document on which the applicant travelled to Australia in 2019 had also expired. He also attached a copy of that document. He submitted that, at the present time, the applicant does not have a valid permit or travel document to re-enter Burundi.
He submitted that the applicant has been living in Australia for the past 5 years and 8 months. He does not have valid documents to return to Burundi or to his country of nationality. He is neither a citizen nor permanent resident of Burundi. The applicant held a refugee card that has since expired. He submitted that the applicant has lost his to reside in and to enter Burundi lawfully as a refugee given that his refugee card has long expired.
He submitted that the applicant cannot return to the DRC or Burundi safely as he faces significant risk of harm from the militia groups in both countries.
He submitted a coloured copy of the applicant’s expired refugee card issued in Burundi. The expiry date of the refugee card is [date] 2021.
He also provided two further news articles relating to Imbonerakurein attacks on the local population in Burundi.
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.
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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
s 36(3) of the Act
The Tribunal finds on the evidence before it that the applicant does not have an existing right to enter and reside in Burundi either temporarily or permanently. It accepts as genuine his refugee card which shows that his refugee status in Burundi expired [in] 2021 and that his temporary status as a refugee has since expired. It accepts that his travel document to Australia has also expired and that he is unable to travel back to Burundi. The Tribunal accepts on the evidence before it that he is not a citizen or a permanent resident of Burundi. It accepts on the evidence that he has no other temporary residence status which exists in Burundi. Therefore, on the evidence before it, the Tribunal does not find that s 36(3) of the Act applies to the applicant. The Tribunal will only need to make an assessment, therefore, of whether the applicant has a well-founded fear of persecution in the DRC as is required under s 5H(1)(a) of the Act.
Assessment and findings
The Tribunal found the applicant to be a credible witness at the hearing, having regard to the consistency of his oral evidence with all the material before the Tribunal, and his evidence contained on the department file and Tribunal file. The Tribunal has had regard to the applicant’s ability to recall events and circumstances with no hesitation when questioned by the Tribunal. His responses indicated someone who had lived the experiences and events that led to the killing of his father and his escape to Burundi. His recounting of events was consistent with his written statements and claims notwithstanding that his claims had been made 5 years and 10 months ago when he first lodged his protection visa application. The Tribunal is mindful of how recalling such events can be traumatising for applicants. The applicant was able to recall the events that led to the killing of his father, the reason for why he did not want to join the Mai Mai militia group, his escape into Burundi and his subsequent actions of obtaining refugee status, proof of which lay in the confirmation of refugee status from the Ministry of Interior, Republic of Burundi, which the Tribunal accepts as genuine.
Having had regard to all the written material before it, including the written claims by the applicant and witness statements; and having regard to the submissions made by the applicant’s lawyer; and having regard to the written material provided by the applicant; and having regard to the oral evidence given by the applicant at the hearing; and having regard to the post-hearing submissions made by the applicant’s lawyer in support of the applicant’s claims, the Tribunal accepts as credible the following claims:
·That he has lived in Fizi, South Kivu (Eastern DRC), the DRC from his birth to 2002, and in Bujumbura, Burundi from 2002 until 2019 as a refugee.
·That he is of the Babembe ethnic group.
·That he escaped the DRC in 2002 after his father was killed by the Mai Mai militia group.
·That his father was killed when the applicant refused to join the Mai Mai militia group as a Babembe person because he conscientiously objected to the political ideologies of the Mai Mai.
·That the applicant received information from his [sibling] that the Mai Mai were wanting to kill him and that he escaped into Burundi in 2002 and has not returned to the DRC since 2002.
·That he remained as a refugee in Burundi for as a refugee only from 2002 until 2019 and that his refugee status in Burundi has since expired in Burundi.
·That he arrived in Australia in September 2019 after his [age]-year-old [child] died tragically through a drowning accident.
·That he genuinely fears being targeted and killed by the Mai Mai if he returns to his region in South Kivu.
·That he genuinely fears that the Mai Mai will target him because he is from the Babembe ethnic group and because he conscientiously objects (and has conscientiously objected in the past) in joining this group because he did not share their political ideology.
·That he genuinely fears he will be suspected to be a traitor by the Mai Mai because he will not join them.
·That he genuinely fears that he will be killed by M23 rebel group because they will perceive him to be part of the Mai Mai because of his ethnicity and because of the region that he comes from.
·That he genuinely fears that he will suffer serious harm if he had to return to South Kivu.
·That he genuinely fears that he will be targeted by government forces anywhere else outside of South Kivu in the DRC because of the perception that he supports rebel forces in South Kivu and in Eastern DRC due to his perceived association with the Mai Mai forces in Fizi due to his Babembe ethnicity.
·That he genuinely fears that he will not be offered any protection from the government of the DRC.
The Tribunal has considered independent country information below relating to the DRC which is relevant to the applicant’s claims for protection.
The Asylum Resource Centre (ARC), in its 2019 research publication titled “Democratic Republic of the Congo (DRC) The situation in North Kivu, South Kivu, and Ituri” reports as follows:
Detailing the conflict in Fizi territory [emphasis added] and its link to the conflict in Uvira, the local NGO Recherches et Actions pour la Paix (RAP) reported in mid-June 2019 [unofficial translation]:
The conflict between the Banyamulenge and the local population concerns both the people living in the Uvira territory and that of the Fizi, in the province of South-Kivu, DRC […] The territory of Fizi administratively shares borders with the territory of Uvira in the north, the territory of Mwenga and Shabunda in the west, the territory of Kalemie (Tanganyika) in the south, and in the east, it is bordered by Lake Tanganyikam, beyond the peninsula of Ubwari. Fizi is populated mainly by Babembe who are considered as the native people of this area [emphasis added]. The older generation within the region includes the Banyarwanda or Banyamulenge, who first came back shortly before 1900 […] An importance cause of the conflict is the fact that the Congolese nationality, Zarian at the time, the Banyamulenge has been questioned by the current government, which created the eruption of rebellion in 1996 in Kivu […] The second focus of this conflict is the recognition of the spaces of each people and their management. It is about, more precisely, the recognition of the Bijombo area in 1979 and the creation of the territory of Minembwe by the DRC on 9th September 1999, in the middle and high lands of Itombwe […] The other aspect of the conflict is the instrumentalisation that the elites in each community orchestrate in order to access and maintain power at the local, provincial or national level.[1]
[1] Asylum Resource Centre, August 2019 (COI between 1st January 2018 and 6 th August 2019), Democratic Republic of the Congo (DRC) The situation in North Kivu, South Kivu and Ituri, Commissioned by the United Nations High Commissioner for Refugees (UNHCR), Division of International Protection, DRC+Country+Report_Kivus+Ituri_August+2019_Final.PDF
The ARC’s research publication in 2021 titled “Democratic Republic of the Congo (DRC) The situation in North Kivu, South Kivu and Ituri – Update” reports directly on Mai Mai’s targeting of ethnic communities including those with Babembe ethnicity as follows:
On Fizi and Uvira territories, between 29 September and 25 November 2019, the UN Secretary-General provided the following overview:
Ethnically motivated violence against civilians on the high and middle plateaus of Fizi and Uvira territories remains a major source of concern, in particular in the Minembwe area. Since March 2019, Ngumino, Twigwaneho and Mai-Mai groups have killed at least 44 civilians and destroyed 89 villages. Worryingly, these attacks have targeted civilians on the basis of their perceived community affiliation, with the Banyamulenge particularly affected on one hand, and the Bafuliro, Babembe and Banyindu, on the other. The situation has deteriorated sharply since October [2019], with a growing risk of the violence spreading to neighbouring provinces [emphasis added]. There are many displaced civilians, especially in the Minembwe area, and humanitarian concerns are growing because the insecurity limits access to the area and adequate health facilities are far away. Fearing further attacks, hundreds of these displaced civilians have sought protection in the vicinity of MONUSCO bases.[2]
[2] Asylum Resource Centre, 26th July 2021 (COI between 6th August 2019 and 30th June 2021), Democratic Republic of the Congo (DRC) The situation in North Kivu, South Kivu and Ituri – Update, Commissioned by the United Nations High Commissioner for Refugees (UNHCR), Division of International Protection. DRC-COI-report_July-2021_ARC.pdf
The Tribunal places significant weight on the very latest UNHCR Position Paper for Returnees to North Kivu, South Kivu and Ituri in the DRC, issued in March 2025. In particular it has considered UNHCR’s position on DRC nationals returning to these areas (as of 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.[3]
[3] UNHCR Position on Returns to North Kivu, South Kivu and Ituri in the Democratic Republic of the Congo – Update IV (Revision 1) | Refworld
The United States Department of State Country Report on the DRC 2023, provides a grim report on the human rights violations of civilians in Eastern DRC and across the country as follows:
There were credible reports that armed groups and the SSF perpetrated serious human rights abuses. In the first half of the year, the UNJHRO documented a total of 2,564 human rights abuses across the country, with the majority occurring in conflict-affected provinces, particularly North Kivu and Ituri, but also South Kivu, Mai-Ndombe, Tanganyika, and Maniema. Conflict-affected provinces accounted for more than 80 percent of all abuses throughout the country. Local NGOs reported the SSF committed abuses under the cover of the state of siege in North Kivu and Ituri Provinces.
The SSF continued fighting armed groups in the east of the country, and conflict among armed groups resulted in significant population displacement and human rights abuses, especially in Ituri and North Kivu Provinces. A UN Group of Experts report released in June noted that M23’s territorial expansions and operations led to the displacement of more than one million civilians in North Kivu Province between October 2022 and April. The Group of Experts also revealed evidence of sustained, direct intervention by the Rwanda Defense Force on Democratic Republic of Congo (DRC) territory to reinforce and train M23 combatants and to plan and conduct military operations against the armed group Democratic Forces for the Liberation of Rwanda (FDLR).
There were credible reports that elements within the Armed Forces of the Democratic Republic of the Congo (FARDC) collaborated with some armed groups. A UN Group of Experts report from June noted that some senior FARDC officers collaborated with the FDLR and a local network of armed groups called the Congolese Patriotic Resistance Network, providing these groups logistical and material support. In December 2022, a judge in the High Military Court of Bunia (Ituri Province) sentenced four FARDC officials, including a lieutenant colonel, to death for misappropriation of wartime munitions intended for military operations. The officials had appealed their original conviction in May 2022 on charges of providing ammunition to the Cooperative for the Development of the Congo (CODECO).
The government took steps to neutralize armed groups and fight impunity. Operational cooperation between MONUSCO and the government continued in the east. The MONUSCO Force Intervention Brigade supported FARDC troops in North Kivu and southern Ituri Provinces. MONUSCO forces deployed and conducted patrols to protect internally displaced persons (IDPs) from armed group attacks in North Kivu, South Kivu, and Ituri Provinces. In North Kivu, the FARDC continued joint operations with Ugandan military forces, the Uganda Peoples’ Defense Force, under Operation Shujaa. Among the 15 major armed groups in the country, various Mai Mai factions, ISIS-Democratic Republic of the Congo (ISIS-DRC, locally known as the Allied Democratic Forces), CODECO, and M23 perpetrated the most abuses, according to a UNJHRO report covering the first half of the year [emphasis added]. Rising tensions since 2021 between the armed groups CODECO and Zaire contributed to numerous crimes against civilians and displacement in Ituri Province, particularly in Djugu Territory but extending into Mahagi and Irumu Territories. In South Kivu Province, there continued to be reports of cycles of retaliatory clashes between armed groups and attacks against civilians in the Hauts-Plateaux of Mwenga, Uvira, and Fizi Territories [emphasis added]. Armed groups committed approximately 71 percent of documented cases in conflict-affected provinces in the first half of the year, according to the UNJHRO. Combatants abducted victims for ransom, for forced labor, and in retaliation for suspected collaboration. The UNJHRO reported armed groups used extrajudicial killings as a tactic to force populations to abandon their property, crops, or areas vital for agriculture and mining.
… … …Killings: The UNJHRO reported at least 1,480 civilians were victims of summary or extrajudicial killings in the first six months of the year, the vast majority occurring in conflict-affected provinces and of which 154 were children. The armed groups ISIS-DRC, CODECO, M23, and Mai Mai committed most of these killings and mutilations, while FARDC soldiers and PNC agents contributed to the abuses [emphasis added]. [4]
[4] Country Reports on Human Rights Practices for 2023 United States Department of State • Bureau of Democracy, Human Rights, and Labor, Pages 14-16, CONGO, DEM REP 2023 HUMAN RIGHTS REPORT
The Tribunal has had regard to “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:
Significant human rights issues included credible reports of: arbitrary or unlawful killings, including extrajudicial killings; enforced disappearance; torture or cruel, inhuman, or degrading treatment or punishment by the government; involuntary or coercive medical or psychological practices; harsh and life-threatening prison conditions; arbitrary arrest or detention [emphasis added]; serious problems with the independence of the judiciary; political prisoners or detainees; arbitrary or unlawful interference with privacy; punishment of family members for alleged offenses by a relative; serious abuses in conflict, including reportedly unlawful or widespread civilian deaths or harm, enforced disappearances or abductions, torture, physical abuses, and conflict-related sexual violence or punishment; unlawful recruitment or use of children in armed conflict by armed groups or the armed forces; serious restrictions on freedom of expression and media freedom, including violence or threats of violence against journalists, unjustified arrests or prosecutions of journalists, censorship, and enforcement of or threat to enforce criminal libel laws to limit expression; substantial interference with the freedom of peaceful assembly and freedom of association, including under the state of siege in the eastern part of the country; restrictions on freedom of movement and residence within the territory of a state and on the right to leave the country; serious government corruption; extensive gender-based violence, including domestic and intimate partner violence, sexual violence, workplace violence, child, early, and forced marriage, and other forms of such violence; crimes involving violence or threats of violence targeting members of ethnic groups or Indigenous peoples; crimes involving violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; crimes involving violence or threats of violence targeting persons with disabilities; and the existence of the worst forms of child labor.
… … …
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 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.
Having regard to the “The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report” above, the Tribunal finds credible the claims that Mai Mai are committing significant human rights abuses on civilians in recent times. It finds credible the claims that “[in] South Kivu Province, there continued to be reports of cycles of retaliatory clashes between armed groups and attacks against civilians in the Hauts-Plateaux of Mwenga, Uvira, and Fizi Territories [emphasis added].”
Having regard to the evidence from independent country resources such as the Asylum Seeker Centre, UNHCR and the United States Department of State above, the Tribunal finds credible the claims that the Fizi territory that the applicant has lived in all of his life while in the DRC, is made up of Babembe (or Mubembe as was originally described by his lawyer in the protection visa application) who are considered native of the area. It finds credible the claims that the Mai Mai militia group who have operated in Eastern part of Congo and particularly in Fizi territory have specifically targeted and killed civilians of Babembe ethnicity, and that there was growing risk of violence spreading to other provinces. It finds credible the claims that massive human rights violations are occurring in South Kivu and that the applicant will not be able to return safely to South Kivu. Given this country information, the Tribunal finds that there is a real chance that the applicant will be targeted by the Mai Mai militia group were he to return in the reasonably foreseeable future to his home area of Fizi in South Kivu for reason of his Babembe ethnicity and for reason of his imputed political opinion, namely for being seen as opposing the Mai Mai political ideology because he has conscientiously objected in the past, and continues to conscientiously object to supporting the Mai Mai militia in Fizi.
The Tribunal finds on the evidence before it that the applicant has lived all his life in Eastern DRC, namely Fizi, South Kivu. His extensive family members also lived in Eastern DRC. They have since been either killed, or have moved to other countries, 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 South Kivu, Eastern DRC. He has no connection to any other area in the DRC. He has never lived anywhere else outside of the region of South Kivu in Eastern 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, Mai Mai militia and other rebel groups and non-state actors; and given that he has no family to return to; and given the applicant’s previous experience of refusing to join the Mai Mai group; and given that there is a real chance of 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 Fizi, South Kivu 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 Tribunal finds on the evidence before it that the applicant has no identification on him, given that his Refugee Identity Card (granted in Burundi) has since expired, his travel document to Australia has since expired, and that he has no DRC identification, having escaped the DRC in 2002 across the border to Burundi and not returning to the DRC since.
The Tribunal has had regard to “The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report”, noting 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 Tribunal has had regard to the latest SmartTraveller advice which 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 outside of Kinshasa as he travels to a place of abode (as per the SmartTraveller advice above). Given that the applicant does not have any DRC identification, there is a real chance that he will be arbitrarily arrested by security forces and detained (as per the “The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report”).
The Tribunal has had regard to “The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report” which indicates that “arbitrary arrest or detention” occurs and that conditions in prison are “life-threatening”. Given that the applicant has not lived in the DRC since 2002; given that there is a real chance on the country information above that he will be stopped by security forces at any check point in and around Kinshasa or at Kinshasa international airport upon arrival; given that he has been away from the DRC since 2002; given that he comes from Fizi, South Kivu; given that he will be identified as coming from South Kivu - a region where M23 control are in armed conflict with the DRC government forces; given that the applicant has no identification at all to show his DRC citizenship, there is a real chance that the applicant will be arbitrarily detained and imprisoned given “The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report” that “[p]ersons without national identification cards [are] sometimes arbitrarily arrested by the SSF”. There is a real chance that, as a result of this detention he will suffer serious harm amounting to “life threatening” harm as reported by “The United States Department of State - Democratic Republic of the Congo 2023 Human Rights Report”.
The Tribunal finds on the evidence before it that, given that there is a real chance that the applicant will be arbitrarily arrested and detained in Kinshasa or at any checkpoint throughout the country side or at any entry into the country outside of South Kivu for lack of identification, there is a real chance that he will be identified as coming from Fizi in South Kivu (where he has lived all his life while in the DRC). Give these findings, there is a real chance (while arbitrarily in detention) that he will be imputed with being an M23 supporter, given the UNHCR Position Paper for Returnees to North Kivu, South Kivu and Ituri in the DRC, issued in March 2025. The Tribunal finds significant the UNHCR’s Position Paper which reports that many rebel groups have aligned themselves with M23 in South Kivu and other parts of the Eastern DRC:
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 [emphasis added] .
This country information indicates that many rebel groups are associating themselves with M23 which, on the country information before the Tribunal, is in a deadly conflict with the DRC security forces. Given the circumstances of the applicant in totality, namely, that he comes from South Kivu which has been identified as one of the three regions in Eastern Congo by the UNHCR Position Paper for Returnees to North Kivu, South Kivu and Ituri in the DRC, March 2025 as “having multiple armed groups who have aligned themselves with M23 openly or in secret”; that he escaped from the DRC in 2002 and has not returned since; that he has no identification on him at all; and that he is a single male without family connections and therefore at risk of being identified as a soldier, there is a real chance that the applicant will suffer serious harm or “life threatening harm” if arbitrary arrested or detained upon his return outside of South Kivu for reason of his imputed political opinion of being associated with armed rebel groups in South Kivu who are fighting the government in the DRC.
The Tribunal finds that the applicant has a well-founded fear of persecution if he were to return to Fizi, South Kivu in the reasonably foreseeable future for reasons of his Babembe ethnicity and for reasons of his imputed political opinion in refusing to support the Mai Mai militia and their political ideology. The Tribunal finds that the applicant has a well-founded fear of persecution if he were to return to any area outside of South Kivu in the reasonably foreseeable future of being arbitrarily arrested and detained at any security checkpoint for reason of his imputed political opinion of being associated with armed rebel groups in South Kivu who are fighting the government of the DRC.
The Tribunal finds that the reasons for this persecution are the essential and significant reasons for the persecution, as required by s 5J(4)(a); that the persecution involves serious harm to the applicant by way of a threat to the applicant’s life or liberty, significant physical harassment or significant physical ill‑treatment of the applicant, as given as instances under s 5J(4)(b); 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 arrested and 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 Mai Mai militia or M23 forces in South Kivu; and given that the applicant cannot return to the Eastern DRC provinces because of the severe conflict there and UNHCR’s recent Position Paper not to return DRC nationals to the Eastern Province; and given that serious harm will be inflicted by security forces at check points in and outside of Kinshasa and in all other areas in the DRC outside South Kivu and Eastern DRC, the Tribunal finds that the real chance of persecution relates to all areas of the DRC (s 5J(1)(c) of the Act).
The Tribunal finds that the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in the DRC given that any modification would conflict with a characteristic that is fundamental to the applicant’s identity or conscience; and given that it would require the applicant to alter his political beliefs or conceal his true political beliefs or require the applicant to conceal his true race or ethnicity.
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 in all areas of the DRC outside of South Kivu and that the authorities are unable to protect the applicant in South Kivu itself which is controlled by M23 and other rebel groups.
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: 1 May 2025
Representative: Mrs Prisca Chinwe Eboh
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.
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36 Protection visas – criteria provided for by this Act
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(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.
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