2209523 (Refugee) - [2022] AATA 4808

2209523 (Refugee) [2022] AATA 4808 (13 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Genevieve Estelle Howe
CASE NUMBER:  2209523
COUNTRY OF REFERENCE:                   Congo, Democratic Republic of
MEMBER:Melissa McAdam
DATE:13 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 13 October 2022 at 2:14pm
CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – particular social group – girls or young women in the DRC – young female with no family or other support – conflict with adopted family – gender-based harm – high risk of sexual and other physical violence to children – refugee status in third country lost after moving to Australia – lack of state resources for orphans – lack of access to accommodation, financial support or other welfare support – jurisdiction issues regarding validity of application for review – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 412, 414, 499
Migration Regulations 1994 (Cth), r 4.31A; Schedule 2
CASES
Hassan v MIBP [2015] FCCA 894
Le v MIBP [2019] FCA 427
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZKDB v MIAC [2007] FMCA 1036
SZLSM v MIAC (2009) 176 FCR 539
Zaki v MIBP [2015] FCCA 2575
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant was represented in relation to the review.
On 11 November 2016 the applicant’s then guardian, his partner, the applicant, and her half-sibling applied for protection visas in the one application as members of the same family unit, with the applicant’s guardian as the primary applicant. No protection claims were presented on behalf of the applicant in that application.
The delegate refused to grant the visas in a decision made on 7 May 2019.
Jurisdiction
An application for review of the delegate’s decision was lodged with the Tribunal on 21 May 2019, naming the applicant’s guardian as the review applicant but omitting the names of his dependants, including the applicant. This omission was eventually rectified on 26 October 2021 in an amended review application form.
As 26 October 2021 is outside the timeframe to lodge a valid review of the delegate’s decision a question arises as to whether or not the applicant has made a valid review application and whether the Tribunal has jurisdiction over her matter.
The 26 October 2021 amended review application is clearly out of time. The Tribunal therefore has considered whether or not the review application lodged on 21 May 2019 meets the requirements of a valid review application by the applicant.
Section 412 of the Act sets out the requirements for a valid Part 7 review application:
(1) An application for review of a Part 7-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 7-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
The 21 May 2019 review application satisfies the above criteria and therefore is a valid application for review of the delegate’s decision. Under s.412(2) an application for review may only be made by a person who is subject of the primary decision. This part of the Act is silent as to whether or not all people subject of the one primary decision must each apply for review of that decision, or whether a valid review application identifying the decision to review by one of the persons is sufficient to enliven review for all persons subject of the decision.
Section 414 of the Act requires that if a valid application is made for review of a part-7 decision then the Tribunal must review the decision.
The Tribunal therefore must review the delegate’s decision, identified in the review application. T hat was a decision to refuse Protection visas to the primary applicant and his then dependents, which included the applicant. This indicates the Tribunal must review the decision to refuse to grant a Protection visa to the applicant.
The Courts have held that the details in a review application form are not determinative and that a person subject of the decision does not need to complete the review application form as long as there is a requisite intention by that person to apply for review.[1] In Zaki v MIBP [2015] FCCA 2575 the Court accepted unchallenged evidence given to the Court by the applicant’s sponsor and corroborated by the applicant that she was acting on the applicant’s behalf when she lodged the online review application in which she named herself as the review applicant.
[1] See e.g. Le v MIBP [2019] FCA 427 at [84]–[85] and Hassan v MIBP [2015] FCCA 894 at [14], [19]–[23].
Regulation 4.31A also allows applicants to combine their application for review by the Tribunal if their primary applications were combined in a way permitted by the Regulations. Schedule 1 of the Regulations permits members of the family unit of a person to combine their application for a Protection visa with that person’s application.
The applicant is a minor. Under Common Law, guardians of minor children have the power to make decisions on behalf of the child, including immigration decisions. In practice, an application for a visa or review can be made on behalf of a child by a parent or guardian. The courts have found that the Tribunal is entitled to treat a guardian’s actions as the action of a child applicant in circumstances where the person is clearly adopting the role of guardian in his or her actions.[2] The applicant’s then guardian, named in the review application form, can therefore be considered to have been acting on behalf of the minor child dependents included in his visa application, namely the applicant and her half-siblings.
[2] See SZLSM v MIAC (2009) 176 FCR 539 at [24] and SZKDB v MIAC [2007] FMCA 1036 at [28]–[30].
The applicant’s representative has also made the following submissions in relation to jurisdiction:
We submit that the application for review was validly made in accordance with the legislative requirements set out in Section 412 of the Migration Act 1958 (“the Act”). The decision for review, being the decision of the Department of Home Affairs dated 7 May 2019, was correctly identified in the online application for review.
We submit that there was substantial compliance in the lodgement of the application for review to the Administrative Appeals Tribunal (‘AAT’) such that it can be concluded that [the applicant] can be taken to have been included as an applicant in the application for review. [The applicant] was listed as an applicant in the Notification Letter of the Department (dated 7 May 2019) and, from the release of documents from the AAT to [Organisation 1], it is concluded that the Notification Letter containing [the applicant]’s name was supplied at the time of the online lodgement for the applicant for review (online lodgement reference number 20190521-64063).
In support of our submissions, we refer to ‘Chapter 4 – ‘Review Applications’’ of the Migration Refugee Division Procedural Law Guide (‘MRD Procedural Law Guide’) which discusses substantial compliance with application forms:
Where a form other than the approved form is used, or the approved form is used but is incorrectly or incompletely filled in, the application may still be valid having regard to the principles of substantial compliance
And further that:
Section 25C of the Acts Interpretation Act 1901 (the AIA) provides that ‘Where an Act
prescribes a form, then strict compliance with the form is not required and substantial
compliance is sufficient.
…..
Similarly, the partial failure to complete or fill in an approved form in accordance with its
stated directions will not, of itself, render the application invalid and it would be necessary to consider whether the application, as made, still contained the information necessary to
properly invoke the Tribunal’s jurisdiction and set in train the process of review.
We submit that the absence of [the applicant]’s name on the actual online application itself is not fatal to her application for review being found valid, given there was substantial compliance in that “[i]f a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary but substantial compliance is sufficient.”5 The subsequent correspondence from [Mr A]’s representative to the AAT at the time clearly states that it was intended that [the applicant] be included as a review applicant.
While the review application in question is not strictly a visa application, we submit that section 98 of Migration Act 1958 (Cth) can apply to the current question of compliance in that, “[a] non-citizen who does not fill in his or her application form or passenger card is taken to do so… if it is otherwise filled in on his or her behalf.”
Likewise, a failure to completely fill in all parts of an approved form will not necessarily be fatal to its validity, as seen in NAWZ v MIMIA in which the visa applicant had failed to sign their visa application and in response to the question of validity regarding the incomplete form his Honours stated that, “section 98 can cure any resulting defect.”.
The MRD Procedural Law Guide further states:
While the Tribunal may have regard to the details of the person applying for review in the review application form, it may not be determinative of who the person seeking review is. In Le v MIBP52, the Federal Court adopted a broad interpretation of this evidence in the applicant’s favour to find that the correct person had applied for review and that the Tribunal’s jurisdiction had been engaged. The matter concerned the refusal of a Subclass 820 (Partner) (Temporary) visa, which meant that the person with standing was the visa applicant. However, on the review application form lodged with the Tribunal, the sponsor’s details were listed under the heading ‘details of person applying for review’ and the visa applicant’s details were listed under ‘primary visa applicant’. The representative also incorrectly claimed that the sponsor had the right to seek review in response to a query from a Tribunal officer about who was seeking review of the decision. The Tribunal found that it did not have a valid review application before it, as the person with standing (i.e. the visa applicant) had not applied for review. The Federal Court disagreed and found that the visa applicant had sought review of the decision. It held that the information in the boxes on the review application form was not determinative, and that the person listed as applying for review (i.e. the sponsor) was doing so on behalf of the person described as the ‘primary visa applicant’.
The Court emphasised the need to evaluate the substance of the information conveyed in a review application and held that ‘the door to the Tribunal’s statutory review function is not to be closed simply because the [applicant’s] agent filled out the form in the way they did when all the other information and attachments make it clear that only the [applicant] could enliven the Tribunal’s jurisdiction’.
The MRD Procedural Law Guide also notes the case of Jalagam v MIAC [2009] FCA 197 (Edmonds J, 6 March 2009):
This case concerned the validity of a visa application, but the principles are equally applicable to review applications. See also Zaki v MIBP [2015] FCCA 2575 (Judge Street, 15 September 2015) where the Court accepted unchallenged evidence given to the Court by the applicant’s sponsor and corroborated by the applicant that she was acting on the applicant’s behalf when she lodged the online review application in which she named herself as the review applicant.
Guardian taken to act for a child
We submit that as [the applicant] is a minor, she was at all times reliant on her guardian, [Mr A], to make this and other applications on her behalf as part of his parental responsibility. According to Family Law in Australia, parental responsibility, or guardian responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.10 This includes “the power to give a consent on behalf of the child or young person, or to make an application on his or her behalf, for any purpose for which the consent or authorisation of a parent is required...”
We submit that given [the applicant]’s age, and given that [Mr A] had previously lodged the application for a protection visa on her behalf, that in lodging an application for review at the AAT, [Mr A] was doing this for both himself and his dependents included in the original protection visa application, including [the applicant].
Lastly, we refer again to the MRD Procedural Law Guide, specifically to its discussion of ‘Who may apply?’:
Whilst the non-citizen themselves need not complete the form, there must be the requisite intention by that person to apply. Another person, acting on the non-citizen’s behalf, may physically complete and sign the form.
[The applicant] instructs that while she had very little oversight and knowledge of her immigration matters when she was younger, she did have a general understanding that her father was applying for some sort of visa for the whole family, and that she knew what she was included in the process.
We submit that the decision in SZJJM v MIAC can be applied to [the applicant]’s matter:
[an]…application may be lodged on an applicant’s behalf so that… they will be legally responsible for that application where they know that the application has been made, or their conduct suggests they are aware it has been made.
Concluding remarks
We submit that the Tribunal does have jurisdiction to determine [the applicant]’s matter, as the application made by the primary applicant, who was [the applicant]’s legal guardian at the time, was valid and there is substantial compliance establishing that [the applicant] ought to have been included as an additional applicant in the application for review, and that in lodging a review application for himself, [Mr A] at the time was also lodging an application for [the applicant].
The Tribunal accepts that, at the time of lodging the 21 May 2019 review application, it was intended by both the applicant and her guardian for the applicant to be included in his review application and for the decision to refuse her a Protection visa to also be reviewed. The Tribunal has considered this matter carefully and is of the view that it has jurisdiction to review the applicant’s visa refusal. There is a valid review application in relation to the decision which refuses her a Protection visa, and the applicant’s guardian can be considered to have been acting also on her behalf in seeking review of the Delegate’s decision to the Tribunal.
The Tribunal is therefore satisfied it has jurisdiction to review the decision in relation to the applicant.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Summary OF Claims and evidence
Protection visa application
The applicant claims to be a citizen of the Democratic Republic of the Congo (DRC). She was born in [year].
In November 2016, the applicant was included as a secondary applicant in her guardian’s application for a protection visa. At that time, she relied upon his claims and did not present any claims of her own.
Information to the Tribunal
On 17 November 2021, the Tribunal was informed by the applicant’s newly appointed representative that the applicant was no longer residing with her guardian. On 26 November 2021, the applicant’s representative further informed the Tribunal that the applicant would be providing information to the Tribunal relating to her own claims. On 23 June 2022, the applicant’s representative wrote to the Tribunal requesting the applicant receive a separate hearing.

On 30 June 2022, the Tribunal notified the Department of the applicant’s request to be heard separately and the applicant’s review application was transferred to Tribunal case 2209523.
On the same day, the applicant’s representative provided the Tribunal with:
a.Pre-hearing submissions.
b.The applicant’s statement of claims dated 22 June 2022.
c.A support letter from the Team Leader of [Organisation 2], dated 9 June 2022.
d.A support letter from the Student Support Officer at the applicant’s Sydney school, dated 17 June 2022.
In her statement the applicant explained that she was no longer living with her ‘parents’ due to conflict within the family home and she had been living in the care of [Organisation 2] in [Suburb 1] since August 2021. She further requested that she be granted a separate and confidential hearing before a female Tribunal Member, and that the process be expedited due to the ongoing stress taking a toll on her mental health during her HSC period.
With respect to her protection visa claims, the applicant stated:
a.As a young female with no family or familial support, I fear serious gender-based harm if I were forced to return to the Democratic Republic of Congo.
b.I grew up with my paternal aunt in DRC. Her name is [Ms B]. My father was away working for most of my early life, so my aunty [Ms B] took care of me. I understand that my father used to pay for all of my necessities and pay the rent of aunty [Ms B]’s house, in compensation for looking after me.
c.I do not know my biological mother. I know that her name is [Ms C]. My only memory of her is a blurry image of a lady coming to say hello to me. As I grew, I forgot her face. My dad never showed me any pictures of her, and never explained to me why she was not part of my life. I lived in Kinshasa, DRC until I was about 8 or 9 years old. I then moved to Brazil with my dad.
d.To this day I do not know what happened between my mum and my dad. I used to ask my dad about my mum, and he would say words to the effect of ‘there is nothing for you to worry about’, or, ‘it’s not important’. I eventually just stopped asking him about her, because I knew I would not get any information out of him. None of my dad’s family would tell me anything either. I would try to ask people, like my aunty [Ms B], about my mother. They would just tell me ‘oh, ask your dad’, then they would ignore me.
e.I do not have any full siblings. I have approximately six half-siblings. I may have more half-siblings whom I don’t know about. Three of my half-siblings are in Australia, living with my dad and my step-mum. Their names are [specified], and they have a new baby, I am not too sure of the name. To my knowledge, my other three half-siblings are living in Brazil. Their names are [specified]. They are all younger than me.
f.I have a paternal cousin with whom I try to stay in contact. Her name is [Ms D]. She was living in Brazil with me, and now she is living in [Country 1]. Sometimes I have contact with [Ms D]’s mum who is in DRC, but it is not regular contact.
g.I no longer have contact with my aunty [Ms B], ever since I left my dad’s house last year. During the bad times at home in Australia, my dad would tell his family that I was bringing shame to the family and that I was being a bad daughter. He would spread bad rumours about me to his family in DRC.
h.I left the family home of my dad and my step-mum in about August last year. [Ms E] (my step-mum) and I never got along. I first met her in Brazil when we were about to leave to come to Australia. I then had to start a life in Australia in a home with a step-mum whom I barely knew.
i.[Ms E] has physically hurt me a number of times while I was living at home. My dad would work long hours, so it was often just myself, [Ms E] and my small siblings in the house. Some physical incidents from [Ms E] included having my hair pulled violently from behind, having ceramic mugs thrown at me, and having a dining chair thrown at me. If I did not dodge them in time, I would have been hit.
j.My dad has never supported me during these incidents. He would say I was being disrespectful, and he would get angry with me too.
k.The verbal abuse from [Ms E] was worse. She would say things like “How dare you? Who do you think you are? You were not brought up right”. These things were so hurtful to me, as I have never even known my mother. [Ms E] was trying to insult my mother and how I was brought up, even though I never knew her.
l.After each fight with [Ms E], things became worse and worse. After each fight, she would lock me away from having access to the rest of the house. My bedroom was a bit separate, and [Ms E] could lock a sliding door that prevented me from accessing most of the house. I could not access the kitchen for food. I could not access the bathroom for a shower. I remember one day having to ask my friend to bring some toothpaste to school for me to borrow.
m.Throughout that time, my dad would say that I wasn’t treating my siblings right, he said I was like a stranger, that I was never helping around the house, never helping my step-mum. None of that is true. I would always help, and I was often left home alone to look after my three young siblings. I would often miss my school classes during lockdown because of this.
n.After another incident of having my hair violently pulled from behind me while I was in the kitchen one day, I finally decided to talk to my teacher at school about what was happening at home.
o.After this, Family & Community Services (FACS) came over to home for the first time. I told my teacher that I needed to tell someone that what was happening at home was not OK. I wanted someone to tell my parents that what was happening was not OK and that they needed to treat me right, and needed to look after me. After FACS came, they looked at my room and assessed my situation. FACS said I was not fine.
p.After that visit, things changed, and [Ms E] stopped being physically violent toward me. However, we had yet another big argument. I had been asked to clean the house, and I did, except for her room. For context, I was very busy with online school classes during COVID, and I had been missing many online classes because [Ms E] kept asking me to mind the young children and to do more and more chores. She would leave me all day to look after the children while I was supposed to be doing school online. It was extremely stressful.
q.This particular day when I did not clean her room, she then asked me to go and finish cleaning and to do her room. I just said no because I did not have time in the day due of my online classes. She took the mop bucket and tipped the water out everywhere. I just didn’t say anything. Instead, I went to my room. [Ms E] called my dad and said words to the effect of ‘I do not want this girl in my house any more, it’s either her or me’. Then she banged on my door and asked me to give back everything to her that she has ever bought for me. She took all of my clothes and ripped them apart, she ripped my hair extensions. She told me to pack the rest of my things and she said ‘by the time your dad is back, I want you out’.
r.I left my pile of ripped belongings out so that dad would see it there. I was stupid enough to hope that dad would defend me just this one time. Dad instead said that I am a troublemaker, that I was destroying the marriage, and that I cannot keep myself out of trouble. This all hurt me so much. My dad has never shown me nor offered me any form of support during these conflicts.
s.The next day I woke up, and [Ms E] said words to the effect of ‘get out of the kitchen, I don’t care how you survive, or where you get your food, but I want to make sure you don’t touch anything in my house’. I was not allowed to cook or eat that whole week. I had made a habit of holding on to left over money or change where I could, and using it to buy biscuits and snacks to sustain myself when I was locked out of the main part of the house. I started to buy biscuits to survive.
t.That whole week, my dad did not come to see me and he did not even try to find out what was happening. I reached breaking point and reached out to my teacher at school again for help. My school put me in contact with [Organisation 2], and helped me find a place to stay. FACS came over the house again. FACS saw how I had biscuits all over my room. FACS asked me what I wanted to do, and I said I do not want to stay at my dad’s house. Everything was already organised for me to come and live at [Organisation 2]. FACS just made sure that that was what I wanted to do.
u.My relationship with my dad and step-mum feels beyond repair. Apart from obtaining my passport and copy of my Bridging visa letter from my father, I have had no contact with him nor [Ms E] since I left home.
v.I fear that as I have no family support even here in Australia, not even from my own father, that I would not have any support from him in the DRC, if we were forced to return. Until I had contact with [Organisation 1] and [Organisation 2] last year, I had very little knowledge of my visa history. I was 11 years old when I arrived in Australia. My dad did not tell me why we moved to Australia.
w.Since receiving a copy of my file and since speaking with [Organisation 1], I now understand that my dad and step-mum lodged an application for a Protection visa, and that I was included as an applicant. As a child, I have had no input into the contents of the application.
x.I take this opportunity to articulate my own fears of harm if returned to the DRC. I cannot comment on the veracity of the information that my father has put forward in the application thus far. I fear serious harm if I were forced to return to DRC. The number one thing is that I do not have a home to go back to. I only ever knew my dad’s side of the family. Now that I am estranged from my father, I fear that there would be nobody there to protect me or support me. I would have no male protection. I fear returning as a young female with no family support or connections. I am still only [age] years old. I know that because I have left dad’s home here in Australia, none of his family will open the door to me if I were to be returned to DRC. During the fights with [Ms E], my dad would say bad things about me on the phone to his relatives.
y.If I were returned to the DRC, I would be left to fend for myself, as I have been left to fend for myself here in Australia. I fear that I would end up living on the street in the DRC. There is no safety on the street. I would have nowhere to live.
z.I believe that a relative would only look after me if my dad compensated them. This will not happen. There is no support for children in the DRC like there is here in Australia. I remember hearing stories about children being raped and killed in orphanages in DRC.
aa.I left the DRC when I was about 8 or 9 years old. I am still a child and I have no adult experience in DRC.
bb.I fear gender-based violence. I fear rape. Growing up as a girl in the DRC, you are told that you have to be careful and not to trust anyone, not to get involved with strangers. Single girls in the DRC without people to protect them fear violence and rape at the hands of men.
cc.I fear that I would not receive adequate protection from the police in the DRC, from the harm that I fear. As a girl if you are raped, the police will tell you that ‘asked for it’ and that it is because of how you dressed. When I was growing up, I would hear stories of this happening to girls and women.
dd.The police are all corrupt in the DRC. The police do not earn enough money themselves, so they are easily bribed. For example, a traffic control officer will stop you for no reason, and they will say that they will take you down to the police station. They say that they will not take you to the station if you can pay them some money.
ee.The police in DRC are predominantly male, and when they stop people for bribes, they target females, because they assume that they can overpower and intimidate females.
ff.This happened to my auntie’s friend when I was young. She was driving and she was stopped by a police officer for no apparent reason. The officer said that they would take her down to station, so if she wanted to get away, she would have to give money or give them something else. If you do not give money, the police can become physically violent. Luckily, she had money that she could give them, and she could get away. You are only in a position to bribe your way to safety if you actually have money.
gg.I would not be safe anywhere in the DRC. The violence toward women and girls is the same across the country, and the lack of police protection is the same across the country. No part of the DRC is safe for women. I have only lived in Kinshasa until I was 8, and I know no other part of the country.
The team leader within [Organisation 2] in [Suburb 1], in her letter dated 9 June 2022, confirmed the applicant had been residing in crisis accommodation with [Organisation 2] since 24 August 2021 after being referred by her school to the [Suburb 1] service due to allegations of neglect and abuse committed by her father and stepmother.
The student support officer at the applicant’s High School explained that she had been supporting the applicant since August 2021 and assisted the applicant in leaving her family home following reports of neglect and physical and emotional abuse.
Submission 20 September 2022
On 20 September 2022 the applicant’s representative submitted the following written materials to the Tribunal:
-A submission from the agent regarding the Tribunal’s jurisdiction.
-A further statement from the applicant.
-Preliminary email Correspondence between the representative’s firm and the Brazilian Consulate in Sydney regarding the applicant’s status in Brazil.
-A letter from the applicant’s representative to the Brazilian Consulate in Sydney, formerly requesting information regarding the applicant’s status in Brazil.
-A copy of the applicant’s Brazilian visa in her DRC passport.
In the applicant’s further written statement she outlines the following:
I would like to take this opportunity to provide further information to the Tribunal about my relationship to my father, [Mr A].
[Mr A] is not my biological father. [Mr A] is my uncle (my birth father’s younger brother). I have always called [Mr A] my father as that is how I have known him my whole life. He is the only father I have known. For ease of reference in this statement I will refer to him as [Mr A].
I was adopted by [Mr A] when I was a baby. I know this information through what [Mr A] has told me. [Mr A] told me this information at around the time of our move to Brazil. He told me this information when I had been questioning a lot about my biological mother at the time. I had been asking many questions about my mother and I assume that is why he finally chose to explain to me that I had been adopted by him.
[Mr A] told me that my birth father died when I was very young - about one year old - and as a result, [Mr A] took me in to care for me. I do not know if there was an official adoption process, or if it was just an informal agreement within the family. I do not know exactly how adoption happens in DRC. I am not certain, but there may have been an official ceremony for [Mr A] to declare that he was adopting me, as I know that I carry his name.
Family composition and names provided in Form 866
I now understand that my Form 866 included other family member names, listed as my siblings.
I did not know this information was included in the Form 866. My lawyer has brought it to my attention and now I have reviewed the information included in the Form 866.
I do not recognise these names. I am unable to provide any further comment other than the fact that I was about 11 years old at the time the Form was filled. I had no oversight of the information that was provided on my behalf.
I also now understand that the spelling of my mother’s name is different in the Form 866, compared to the spelling that I know. To my knowledge, it is spelt [Ms C], but I cannot know for certain. I know this is her name because [Mr A] told me so.
Mental Health
10. I continue to seek help to manage my mental health. I previously saw a [counsellor] for a period of time. She helped me with my depression and anxiety. My poor mental health is ongoing and I continue to talk to [name] from [high school], to help manage my mental health.
I continue to experience feelings of depression and I am constantly overwhelmed. There are times when I cannot process things at all, and I need regular psychological support. I rely on the psychological support I have here in Australia.
I would have no support to manage my mental health if forced to return to DRC. My mental state would decline if I am returned and I would suffer psychologically.
Further fears of harm
I fear harm if forced to return to DRC, I would be at risk of serious harm because I dress in a western style, and I do not follow the cultural and expected dress codes in DRC.
My memory of DRC is that women and girls are expected to dress in a modest and reserved way. Women and girls in DRC wear long clothing to cover themselves. If women or girls were to wear short clothing revealing more skin, they would be at further risk of serious and sexual violence from men.
In Australia, I dress how I like. I do not dress how the women and girls in DRC dress. I like to wear shorts and I do not wear long dresses. I like to feel free in my clothing and expression of myself.
If I were returned to DRC and continue to dress as I do in Australia, I would fear for my safety.
Right to enter or reside in Brazil
I do not know whether I have the right to reside in Brazil. In my passport I have a visa for Brazil that was issued in 2012 which was valid for 90 days (enclosed). I understand that my lawyer is currently making enquiries with the Brazilian consulate to confirm whether or not I have any right to enter or reside there. I have enclosed our correspondence with the consulate.
Nonetheless, I also fear for my safety if I were forced to return to Brazil. I do not have anyone there to support me. I would be left to fend for myself, and in Brazil there is no protection for children. I remember when I was living there I would see so many children suffering on the streets.
Tribunal Hearing
The applicant appeared before the Tribunal on 27 September 2022 to give evidence and present arguments. The following is a summary of the information provided by the applicant at the hearing:
a.The applicant has been moved into community housing.
b.Since leaving her family home she has had no contact with er family. She recently tried to call her ‘father’ to tell him about her graduation but he did not respond.
c.She thinks of her uncle as her father because she has always known him as her father. It was when she was in Brazil that he told her he was her father’s brother and that her biological father had died in the DRC. She was about 8 years old at the time.
d.She doesn’t know how her biological father died.
e.She doesn’t know if her mother is still alive or where she would be. She only knows her as [Ms C]. She can’t find any information about her mother because she has no connection. Her uncle told her he does not know where she is or anything else.
f.A woman who was her uncle’s partner in the DRC brought the applicant to [Country 1] as her uncle was already living there. The woman then lived with them in [Country 1]. Her name was [Ms F].
g.In Congo the applicant lived with her aunt, her uncle’s sister, [Ms B], because her uncle travelled a lot. Her uncle helped [Ms B] pay the rent and paid the applicant’s school fees. [Ms B] is still in Congo.
h.The applicant cannot live with [Ms B] if she returns to the DRC because the applicant has been pushed out of her family. [Ms B] only let the applicant live with her because her uncle paid [Ms B] money. He won’t do this anymore.
i.The applicant has no siblings in the DRC. She has not had any contact with any relatives in the DRC since leaving there. She has no friends in the DRC and is not in contact with anyone there. She tried to make some Face Book friends with people in the DRC to try to find out more about herself but it didn’t work out.
j.She went to Brazil in [year]. While she was there her uncle travelled to the DRC on some occasions but the applicant never went with him. She has never been back to the DRC.
k.If she returned to the DRC now she would have nowhere to live and would be on the street.
l.She has no idea if her family asked the Brazilian authorities for permission to leave Brazil when they came to Australia.
m.She can’t live with anyone else in Brazil as the only person she relied upon there was her uncle. She did not have a good relationship with his former partner [Ms F].
n.She has no idea how or why her uncle obtained refugee status in Brazil.
o.She would like to go to university and study sports medicine, physiotherapy. She has recently received offers to enrol in this course from two Australian Universities.
p.All the information she has about her family is from her uncle and he only told her a little. He was very strict and he did not let her ask him questions. He had other wives and children and was not really there for her. She could not talk with him freely.
q.She does not know if the information her uncle gave her about her family is correct or not. He was the only person she knew and the only information she had was what he had told her as a child.
Country Information
Democratic Republic of the Congo

DFAT’s current website Country Brief on the DRC states:
Since independence, the DRC has experienced political instability and violence due to ethnic tensions (there are over 200 ethnic groups in the DRC) exacerbated by the periodic influx of refugees from neighbouring countries.
In 2010, the United Nations (UN) Security Council established the UN Organization Stabilization Mission in the DRC. The Mission was authorised to use all necessary means to protect civilians, humanitarian personnel and human rights defenders and to support the DRC Government in its peace consolidation efforts. The Government committed to implement security and governance reforms, and to take steps towards decentralisation and economic development when it signed the Framework Agreement on Peace, Security and Cooperation (PSC) in February 2013. The conflict has led to large scale population displacement, grave human rights violations including mass sexual violence, burning and looting of homes and schools and forced recruitment of children into armed groups.
DRC has some of the largest mineral reserves in sub-Saharan Africa and has experienced economic growth over the past ten years, based mainly on renewed activity in the mining sector. Much mining activity is informal, profits from which are funding the illicit activities of armed groups. The DRC is a member of La Francophonie, the African Union, the Southern African Development Community, and the International Conference on the Great Lakes Region.[3]
[3] >
The Human Rights Watch current overview of the DRC states:
The human rights situation across the Democratic Republic of Congo remains dire, with internal conflicts and poor governance contributing to a severe food crisis and the internal displacement of nearly 5.5 million people, more than anywhere else in Africa. Over 100 armed groups are active in eastern Congo, and the imposition of martial law has facilitated abuses by government security forces. Armed groups and often abusive security forces continue to carry out massacres, abductions, rape and sexual violence, recruitment of children, and other attacks on civilians with near total impunity.[4]
[4] Democratic Republic of Congo | Country Page | World | Human Rights Watch (hrw.org)
2021 USDOS Country Human Rights Report for the Democratic republic of Congo contains the following:
Significant human rights issues included credible reports of: … lack of investigation of and accountability for gender-based violence, including but not limited to domestic and intimate partner violence, sexual violence, child, early, and forced marriage, and other harmful practices; trafficking in persons; … ; and existence of the worst forms of child labor.
… Illegal armed groups also recruited, abducted, and retained child soldiers and subjected children and adults to forced labor.
…
Rape and other forms of gender-based violence were widespread throughout the country, even in areas without armed conflict. The survivors seldom reported this for cultural and social reasons, and the perpetrators were rarely punished. Rape was also common and used as a tactic in areas of armed conflict. … Both international organizations and local NGOs reported that female rape survivors were sometimes forced to pay a fine to return to their families and to gain access to their children. Husbands often divorced wives who were survivors. The law also prohibits forced marriage, but it continued to take place…. Some prosecutions occurred for rape and other types of sexual violence.
IAGs frequently used rape as a tactic of conflict. The UNJHRO reported that from January through June, Nyatura combatants committed the greatest number of human rights abuses, attacking the civilian population and committing sexual violence against 39 women, one man, and 22 children. Local NGOs and international organizations reported that sexual mutilation was often used as a tactic of conflict, with rapists in conflict using weapons or sharp objects to torture women. The UNJHRO reported that in January in Kalembe, Nyatura Coalition des Mouvements pour le Changement (CMC) combatants raped two women, killed one man, and wounded another with a machete. The FARDC was also responsible for sexual violence, especially in conflict areas, where the UNJHRO documented 72 sexual violations against women.
Government agents raped and sexually abused women and girls during arrest and detention, as well as during military action, according to UNJHRO reporting. While sexual violence was a problem throughout the country, most cases took place in areas affected by internal conflict. The PNC continued its nationwide campaign, with support from MONUSCO, to eliminate gender-based violence by the SSF, including through the fight against impunity and the protection of survivors and witnesses. The campaign to operationalize the national action plan to combat gender-based violence was not fully funded by October, and few activities had taken place.
In analyzing the impact of COVID-19 on women and girls, UNICEF found increased exposure to and increased incidence of sexual and gender-based violence with fewer persons on the streets after curfews. Women in Lubumbashi reported increased break-ins and sexual assaults during the COVID-19 curfew, some by armed men in uniform. Seven women told Agence France Presse in January that they had suffered a break-in and been raped during curfew hours in Lubumbashi.
…
Other Harmful Traditional Practices: UNICEF and MONUSCO attributed some abuses of children, including sexual violence against young girls, to harmful traditional and religious practices. Perpetrators allegedly targeted children because they believed harming children or having sex with virgins could protect against death in conflict or give them better luck with mining, and children often died because of these rapes.
Accusations of witchcraft often targeted women and resulted in killings, including some by burning. The NGO Association of Women in the Media said it had recorded 324 accusations of witchcraft from June through September. An administrative chief for Kabare Territory, South Kivu, said those killed were mainly women, more than 60 of whom had been designated as witches by individuals who claimed they could detect witches. A report by the Permanent Consultative Framework for Congolese Women (CAFCO) recorded more than 37 women killed by mobs following witchcraft accusations in South Kivu, Ituri, Kinshasa, and Kongo Central during the year. CAFCO called on national authorities to punish those responsible and ensure the safety of the victims.
In September the Guardian reported that eight women had been accused of witchcraft and burned to death or lynched in South Kivu during the month. An attorney quoted in the Guardian noted that a 2014 provincial law forbidding mob justice had not been applied.
Sexual Harassment: Sexual harassment occurred throughout the country. The law prohibits sexual harassment and stipulates a minimum sentence of one year if convicted, but there was little or no effective enforcement of the law.
In late September several international news organizations reported allegations of SEA by World Health Organization (WHO) staff members working on the Ebola efforts in the country during the 2018-20 epidemic. The United Nations reported that the perpetrators included both Congolese and foreign staff, with an investigation by a WHO commission identifying 83 persons involved in the abuse, 21 confirmed as WHO employees. A New York Times article noted that women reported being asked to provide sex in exchange for a job or even to get water. The BBC reported that local women described being ambushed in hospitals, where they were raped. A Reuters article noted 29 women reported they were raped, with some forced by their abusers to have abortions. The United Nations noted that the report described how managers refused to consider verbal reports. In late October Reuters reported that more women had reported SEA, and the WHO issued a plan to prevent such misconduct by humanitarian workers.
…
The adolescent birth rate was 138 per 1,000 girls ages 15 to 19. UNICEF reported that 27 percent of girls ages 15 to 19 had been pregnant. In an analysis of the impacts of COVID-19 and its impact on women and girls in the country, UNICEF reported an increase in the use of family planning services, an increase in sexual activity among adolescents, a reduction in antenatal care visits, and an increase in the number of pregnancies and women and adolescents seeking clandestine abortions.
…
After analyzing the impact of COVID-19 on women and girls, UNICEF noted that school closures and financial difficulties pushed some adolescent girls to engage in transactional sexual relationships. Young women often did not have access to menstrual hygiene, which impacted their ability to attend schools, which often lacked bathrooms and running water. Furthermore, unwed girls who became pregnant were pressured to drop out of school, and young women who become mothers often faced societal stigmas.
Discrimination: The constitution prohibits discrimination based on gender, but the law does not provide women the same rights as men. The law permits women to participate in economic domains without approval of male relatives, provides for maternity care, disallows inequities linked to dowries, and specifies fines and other sanctions for those who discriminate or engage in gender-based violence. Nonetheless, women experienced economic discrimination, and there were legal restrictions on women in employment, including limitations on occupations considered dangerous, but no restrictions on women’s working hours.
In an analysis of the impacts of COVID-19 on women and girls, UNICEF found that women were disproportionately affected by the health and socioeconomic impacts of COVID-19 restrictions. Most women worked in the informal sector, and border and market closures limited business opportunities.
…
Education: … UNICEF reported that approximately 7.6 million children ages five to 17 were out of school, and half of girls ages five to 17 did not attend school. For the vast majority of schools, the lack of funding led to decreased access and quality of learning, rendering the policy heavily politicized and at times unpopular.
Secondary school attendance rates for girls were lower than for boys due to financial, cultural, or security reasons, including early marriage and pregnancy for girls. There were reports of teachers pressuring girls for sexual favors in return for higher grades. …
Many of the schools in the East were dilapidated and closed due to chronic insecurity. Schools were sometimes targeted in attacks by IAGs. Parents in some areas kept their children from attending school due to fear of IAG forcible recruitment and use of child soldiers. In March the Child Protection Section of MONUSCO documented one attack against a school and another against a hospital in Mabelenge, Irumu Territory, both perpetrated by ADF combatants in Ituri Province. The school was destroyed, and the hospital was looted. In April approximately 30 schools closed due to insecurity in Ikobo, North Kivu. Radio Okapi reported that most schools in Beni Territory were closed in May because of rampant insecurity and the subsequent displacement of students and teachers from troubled areas.
Child Abuse: Although the law prohibits all forms of child abuse, it regularly occurred. The constitution prohibits parental abandonment of children accused of sorcery. Nevertheless, parents or other care providers sometimes abandoned or abused such children, frequently invoking “witchcraft” as a rationale. The law provides for the imprisonment of parents and other adults convicted of accusing children of witchcraft. Authorities did not implement the law.
Many churches conducted exorcisms of children accused of witchcraft. These exorcisms involved isolation, beating and whipping, starvation, and forced ingestion of purgatives. According to UNICEF some communities branded children with disabilities or speech impediments as witches. This practice sometimes resulted in parents’ abandoning their children. …
Sexual Exploitation of Children: The minimum age of consensual sex is 18 for both men and women, and the law prohibits the commercial sexual exploitation of anyone younger than age 18. The penal code prohibits child pornography, with imprisonment of 10 to 20 years for those convicted. The law criminalizes child sex trafficking, with conviction carrying penalties ranging from 10 to 20 years’ imprisonment and a heavy fine. In April UNICEF published a report on SEA that highlighted persistent social beliefs that undermine protection for child survivors. For example, UNICEF noted in the report that adolescent girls who were in exploitative relationships and received money in exchange for sex were not perceived to be children. According to the report, sexual violence against children was considered more serious and more likely to be reported than sexual violence against adults, as it was commonly believed that child victims do not bear the same stigma as adult victims.
There were also reports child soldiers, particularly girls, faced sexual exploitation.
Displaced Children: According to the 2007 Rapid Assessment, Analysis, and Action Planning Report, the most recent data available, there were an estimated 8.2 million orphans, children with disabilities, and other vulnerable children in the country. Of these, 91 percent received no external support and only 3 percent received medical support. In 2019 the NGO Humanium estimated 70,000 children lived on the streets, with at least 35,000 in Kinshasa. The families of many of these children forced them out of their homes, accusing them of witchcraft and causing misfortune. Humanium noted that street children were unsupervised with no access to food, education, or shelter and other basic necessities, circumstances that left them vulnerable to abuse and exploitation by adults and law enforcement personnel who forced them into illegal criminal activity. Law enforcement officials sometimes recruited street children to disrupt political protests and cause public disorder, making children liable for injury or death.
In February UNICEF reported that there were an estimated three million child IDPs in the country, largely as a result of violence in the east of the country.
…
Child labor, including forced child labor, was prevalent throughout the country. Child labor was most common in the informal sector, including in artisanal mining and subsistence agriculture. According to the Ministry of Labor, children worked in mines and stone quarries and as child soldiers, water sellers, domestic workers, and entertainers in bars and restaurants. Commercial sexual exploitation of children also occurred.
Children were also the victims of exploitation in the worst forms of child labor, many of them in agriculture, illicit activities, and domestic work. Children mined diamonds, gold, cobalt, coltan, wolframite, copper, and cassiterite under hazardous conditions. In the mining regions of Haut-Katanga, Kasai-Oriental, Kasai-Central, North Kivu, and South Kivu Provinces, children sifted, cleaned, sorted, transported heavy loads, and dug for minerals underground. In many areas of the country, children between ages five and 12 broke rocks to make gravel.
An EASO’s 2021 report states that:
In March 2021, UNAIDS reported that ‘sexual violence against adolescent girls and young women is common’ in DRC, noting that the country has been engulfed by political instability since the 1990s and ‘widespread attacks against civilians violence between ethnic factions, rape and other forms of sexual violence, and murder’ have occurred.[5]
Brazil
[5] European Asylum Report Office, 2021, ‘Situation of single women – COI Query – Congo, Democratic Republic’, 25 June.
According to the UNHCR, in Brazil, a person is considered a refugee if that person leaves his/her country of origin because of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group, or due to a situation of grave and widespread human rights violation in his/her country of origin.[6] The UNHCR reference Law No. 9,474 of July 22, 1997 which establishes the procedure for the determination, suspension or loss of refugee status, the rights and duties of asylum seekers and refugees, and durable solutions for that population.
[6] UNHCR, ‘Help – Brazil’, accessed 20 September 2020,
Article 1 of Law No. 9,474 of July 22, 1997 sets out the definition for what constitutes a refugee in Brazilian law. Article 11 establishes a national body responsible for Brazil’s refugee programme, known as the National Committee for Refugees, or CONARE. Articles 12 to 16 provide for the operation, function, powers and structure of CONARE. Article 5 of Law No. 9,474 of July 22, 1997 provides that a ‘refugee will enjoy the rights and will be subject to the duties of foreigners in Brazil, to the provisions of this Law, the Convention of the Status of Refugees of 1951 and the Protocol on the Status of Refugees of 1967, being responsible for the obligation to comply with the laws, regulations and measures for the maintenance of public order’. Additionally, the ‘refugee will be entitled, under the terms of the Convention relating to the Status of Refugees of 1951, to an identity card evidencing his legal status, a work card and a travel document’. Article 21 confers powers on the Brazilian Federal Police Department to issue protocols in favour of persons found to be refugees (and his/her family) which enable the Ministry of Labour to issue provisional work cards. Article 22 states that whilst the process is pending, the legislation on foreigners will apply to the applicant. UNHCR also advises that once a refugee has been resettled they are entitled to obtain permanent residency after living in Brazil for 4-years.[7]
[7] UNHCR Resettlement Handbook - Brazil: By the Government of Brazil, ‘Country Chapter Brazil’, July 2011, [12.2 ‘Process for regularization of status and citizenship, including requirements and timeframes] available at: [accessed 20 September 2022].
A person’s dependents will obtain the same status/visa/rights as the protected person. Article 2 of Law No. 9,474 of July 22, 1997 provides:
The effects of the refugee’s condition will be extended to the spouse, ascendants and descendants, as well as other members of the family group who depend on the refugee economically, as long as they are in national territory.
Articles 38 and 39 of Law No. 9,474 of July 22, 1997 provide for specific circumstances where a person’s refugee status in Brazil will cease or be lost. The following circumstances imply the loss of a person’s refugee status:
(i)resignation;
(ii)proof of the falsity of the grounds invoked for the recognition of refugee status or the existence of facts that, if known at the time of recognition, would have given rise to a negative decision;
(iii)the exercise of activities contrary to national security or public order;
(iv)departure from the national territory without prior authorization from the Brazilian Government.
UNHCR states that it is mandatory for refugees in Brazil to obtain authorisation from CONARE to travel abroad. CONARE must also approve the person’s travel document. UNHCR warns refugees that travelling abroad without authorisation from CONARE may result in the loss of their refugee status with Brazil.[8]
[8] Ibid.
The USDOS 2021 Country report on Human Rights for Brazil, states:
Sexual Exploitation of Children: Sexual exploitation of children, adolescents, and other vulnerable persons is punishable by four to 10 years in prison. The law defines sexual exploitation as child sex trafficking, sexual activity, production of child pornography, and public or private sex shows. The government enforced the Page 38 law unevenly. The law sets a minimum age of 14 for consensual sex, with the penalty for statutory rape ranging from eight to 15 years in prison.
The Alagoas state government invested in campaigns to raise public awareness of the increase of sexual abuse of children and adolescents, largely within the same family, during the pandemic. From January to March, 211 cases of child sexual abuse were registered in the state, an increase from 186 during the same period in 2020.
In Maranhao State, the Department of Health Care for Children and Adolescents carried out a campaign with the theme “You report it, we take care of it” to improve assistance for victims of child sexual abuse. The state registered 99 cases of pregnant children younger than age 14 in 2019 and again in 2020.
The country was a destination for child sex tourism. While no specific laws address child sex tourism, it is punishable under other criminal offenses. In addition girls from other South American nations were exploited in sex trafficking in the country.
…
Displaced Children: According to UNICEF, in 2020 refugee support organizations identified more than 1,577 unaccompanied Venezuelan children and adolescents in Pacaraima, Roraima State, and in the first three months of the year the number reached 1,071. According to civil society contacts, some of these minors were at risk of being trafficked or sexually exploited. Local child protection services offices act as legal guardians so unaccompanied adolescents can go to school and obtain identification papers to access the public health system. In some areas, however, they could not accommodate the influx of children. State shelters in Roraima, the state where most migrants entered the Page 39 country, could house a maximum of 15 adolescent boys and 13 adolescent girls. According to a 2019 Human Rights Watch report, some unaccompanied children ended up living on the streets, where they may be particularly vulnerable to abuse or recruitment by criminal gangs.
CONSIDERATION OF Claims and evidence

The applicant claims to fear harm in the DRC as a girl, or young woman, without family support.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The applicant has presented a reasonably consistent and detailed account of her past experiences and family history, in view of her youth, absence from the DRC since the age of eight, and substantive level of family disfunction.
Her evidence about suffering abuse in her family home in Australia, being estranged from her family, and left without family support has been consistent and well-documented by the relevant authorities and organisations here. The Tribunal accepts this has happened.
The applicant has maintained that she has no close or extended family in the DRC who she can contact and/or who would be willing to support and look after her. She states that remaining relatives in the DRC will ostracise her because she has been pushed out of her family in Australia and they have relayed negative stories about her back to people in the DRC. Her uncle here is no longer willing to provide financial support to relatives in the DRC to take care of her so they will be unwilling to take on what they consider the extra burden of a child they are not favourable to.
While it seems extraordinary that people would take no responsibility for a vulnerable minor relative without close family support the Tribunal accepts this may occur. The available country information does refer to children being abandoned, with over 35,000 children living homeless and on the streets in Kinshasa alone. The country information also reports a protracted dire and volatile situation in the DRC. The Tribunal accepts that in such an environment taking on additional responsibility for a child, who is like a stranger to them, may not be possible for, or acceptable to, many families.
It is possible that the applicant’s biological mother is alive and living in DRC and it may be that further investigatory efforts could identify and locate her there. However this is speculative and it is unlikely a [age] year old girl would have the resources and support to successfully do so. Further, even if the applicant was able to locate her biological mother in the DRC the prospects of the woman being both able and willing to support the applicant is doubtful.
In view of the above the Tribunal is not confident that the applicant does have family or relatives who are both willing and able to care for her if she returns to the DRC. The Tribunal therefore gives the applicant the benefit of the doubt that she would not have anyone in the DRC who will support and care for her if she returns there.
Fear of Harm in DRC
On the accepted information the applicant would be returning to DRC as a [age] year old girl without any family or other support.
The country information does not identify any state resources for orphans in the DRC, such as accommodation, financial support or other welfare support. There are reports of local and international NGOs operating orphanages in the DRC however these are unable to look after the tens of thousands of children in need. It is also likely that a [age] year old girl would not be considered a priority for assistance given the number of much younger children requiring help.
The applicant would therefore be returning to the DRC with the prospect of having no accommodation or financial support. She is at risk of becoming destitute and there is a real chance that she would become one of the tens of thousands of children living on the streets, and/or a victim of harmful exploitation in order to secure food and accommodation.
The country information shows that there is a high risk of sexual and other physical violence to children, particularly vulnerable children, in the DRC. They are forced into dangerous occupations, recruitment as child soldiers, and commercial sexual exploitation.
On the basis of the available country information the Tribunal is satisfied there is a real chance the applicant will be subjected to sexual and other gender based violence in the DRC. The Tribunal considers this serious harm. The Tribunal is satisfied that the reason for the harm the applicant fears is her gender as a girl or young woman in the DRC. The Tribunal accepts that girls, or young women, are a particular social group in the DRC in that they share characteristics, their gender and youth, that are not a shared fear of persecution.
The Tribunal considers that the real chance of serious harm to the applicant relates to all areas in the DRC with no part of the country considered safe for girls or women.
The Tribunal is not satisfied there is available protection to the applicant against the harm she fears in in the DRC given the prevalence of its occurrence and the reported involvement of state and other agents in perpetrating such violence.
Based on the above findings the Tribunal is satisfied that the applicant has a well-founded fear of persecution in the DRC for reason of her membership of a particular social group, girls or young women in the DRC.
Section 36(3)
Sub-sections 36(3), 36(4) and 36(5) of the Act set out the following:
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The applicant’s former guardian was given refugee status by the Brazilian government and the applicant also received this status as a dependant upon him.
She has been outside of Brazil since 2016. There is no indication she or her uncle sought permission from the Brazilian immigration authorities, CONARE, to depart Brazil. According to the Brazilian law refugee status is lost by failing to comply with this requirement. The applicant, through her representative, has sought information from the Brazilian authorities regarding her current status in Brazil. To date there has been no indication of a positive response from the authorities.
Based upon the available information it would seem that the applicant has lost her refugee status in Brazil. She would therefore have no apparent right to enter and reside in Brazil and is therefore not excluded from Australia’s protection by s 36(3).
In any event, even if the applicant could return to Brazil the Tribunal is satisfied that s 36(4) would apply. Based upon the available country information the Tribunal considers that the applicant would have a well-founded fear of serious harm, and/or a real risk of significant harm, in Brazil as a child without family or other support there.
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 remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Melissa McAdam
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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
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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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