2210667 (Refugee)

2210667 (Refugee) [2024] AATA 1661 (31 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2210667
COUNTRY OF REFERENCE:                   Congo, Democratic Republic of
MEMBER:Katherine Harvey
DATE:31 January 2024
PLACE OF DECISION:  Adelaide
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 31 January 2024 at 3:50pm

CATCHWORDS
REFUGEE – protection visa – Democratic Republic of Congo – Federal Court remittal – imputed political opinion – opposition to the Kabila government – demonstrations – religion – conversion to Christianity – South African citizenship and permanent residency – employment in Rwanda terminated – kidnapping – detention – fear of killing – attacks by M23 forces – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975, s 19
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
MIMAC v SZRHU (2013) 215 FCR 35
SZEPZ v MIMA (2006) 159 FCR 291
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 dependants.
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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Democratic Republic of Congo (DRC) and first arrived in Australia [in] September 2014 as the holder of a visitor visa.
The applicant applied for the visa on 10 October 2014.
On 17 October 2016 the delegate refused to grant the visa and the applicant applied for a review of that decision on 25 October 2016.
The Tribunal, differently constituted, (Tribunal 1) affirmed the delegate’s decision on 13 December 2018. The Tribunal has listened to the audio recording of Tribunal 1’s hearing.
[In] May 2021 the Federal Circuit Court of Australia, as it was then known, dismissed the applicant’s application for review of Tribunal 1’s decision.
The applicant appealed to the Federal Court of Australia and [in] June 2022 the court quashed Tribunal 1’s decision and remitted the matter for determination according to law.
The court found that Tribunal 1’s finding that the applicant had an unqualified right to enter and reside in the Republic of South Africa (RSA) was unreasonable and not open on the materials before it, and that such an error was material and thus a jurisdictional error.
The applicant appeared before the Tribunal on 14 March 2023 to give further evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
The applicant was unrepresented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
RELEVANT LAW
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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Protection Obligations
Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(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.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(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 other country.
This means that where a non-citizen has a right to enter and reside in any country apart from Australia, Australia is taken not to have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) preclusion will not apply.
The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A).
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
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.
CONSIDERATION
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he meets the complementary protection criterion.
Information that can be considered on remittal
Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act 1975 (AAT Act) requires the reconstituted Tribunal to continue the proceeding.[1] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted, which includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[1] Section 19D(4) of the AAT Act, inserted by the Tribunals Amendment Act 2015 (No. 60 of 2015).
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court of Australia found that, where a Refugee Review Tribunal decision was set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision were themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.
In conducting the review, the Tribunal has considered the material provided to the Department and the Tribunal and the oral evidence given at the hearing held by Tribunal 1 on 27 July 2018 and the hearing on 14 March 2023.
Material before the Tribunal
Material before the Department that includes:
·statutory declarations by the applicant dated 20 October 2014, 19 December 2014 and 29 October 2015
·a copy of the biodata page of the applicant’s RSA travel document with an expiry date [in] July 2019
·a copy and certified translation [Employer 1] correspondence including a letter of appointment from dated [date], a letter allocating responsibilities to the [Project 1] at [District 1] station dated 15 December 1997, an end of provision of services at [Employer 1] dated 31 July 2001 and a certificate of services rendered to [Employer 1] dated 30 September 2001
·a copy of a report of a medico-legal examination of the applicant on 18 January 2005
·a copy of a [Qualification 1] issued 25 February 2016
·a copy of a South African Certificate of Evaluation that the applicant’s qualifications are comparable to a South African [Qualification 2] dated [in] February 2003
·a copy of a [University 1] [Qualification 3] parchment dated [date]
·a copy of assessment advice from the South Australian Department of State Development that the applicant’s qualification is comparable to an Australian [Qualification 4], dated [in] April 2007
·the applicant’s Baptismal Remembrance certificate dated [in] March 2013
·a letter dated 12 October 2015 from [a named] Counsellor at [Agency 1] advising that clinical assessment of the applicant indicates he experiences symptoms consistent with post-traumatic stress disorder and anxiety
·a copy of a 2012 journal article by the applicant on [topic]
·a copy of the applicant’s RSA Permanent Residence Permit dated [in] 2008
·a copy of a Congo coalition blog article ‘Spy bombshell from Paris: DRC is run by Rwandans and Joseph Kabila is Kagame’s Trojan horse’ (21 March 2015)
The Tribunal file 1617695 includes:
·a copy of the delegate’s decision record provided by the applicant with his application for review
·a 23-page unsigned statement from the applicant about why he disagrees with the delegate’s decision
·copies of correspondence about his employment in [Country 1]
·country information for the DRC and the RSA in French and English provided by the applicant
·the recording of the first hearing, and
·copies of material previously provided.
The Tribunal file 2210667 includes:
·a nine-page statutory declaration by the applicant dated 13 January 2023
·a six-page statutory declaration by the applicant dated 3 April 2023
·the South African Immigration Act 13 of 2022
·UNHCR media release, ‘UNHCR deeply concerned by renewed violence displacing thousands in North Kivu, DR Congo’ (27 May 2022)
·United Nations, ‘South Africa “on the precipice of explosive xenophobic violence” UN experts warn’ (15 July 2022)
·Esdras Tsongo, ‘What is the latest conflict in the DR Congo about?’ Aljazeera (21 June 2022)
·SmartTraveller ‘Democratic Republic of the Congo: Latest update’ (5 September 2022)
·Vava Tampa, ‘Justice should be colourblind. So why is it served for Ukraine but not the Congolese?’ (23 August 2022)
·UN Security Council, ‘United Nations Organization Stabilization Mission in the Democratic Republic of the Congo: Report of the Secretary General’ (22 June 2022)
·Catherine Ramos, ‘Unsafe return III: Removals to the Democratic Republic of Congo 2015–2019’
·UNHCR, ‘UN Relief Agency calls for ban on forced returns of asylum-seekers to eastern DR Congo’ (18 November 2022)
·Maybritt Jill Alpes, ‘After deportation, some Congolese returnees face detention and extortion’ (23 May 2019)
·AFP, ‘DRC estimates 300 villagers killed in massacre by rebels’ (6 December 2022)
·Kaamil Ahmed, ‘“Trail of war crimes” left by DRC rebel group as recent attacks leave 300,000 displaced’ (15 March 2023)
·AFP, ‘Civilians killed in DR Congo attacks, fighting with M23 rebels flares’ (20 March 2023)
·UN News, ‘DR Congo: Humanitarian situation worsens; UN mission continues to battle armed militias’ (27 March 2023)
·Civicus, ‘15 activists sentenced to prison for peacefully protesting under state of siege in eastern DRC’ (29 March 2023)
·Pierre Boisselet, ‘In the highlands of South Kivu, a political impasse and a chain of desertions’ (23 March 2021)
·copies of material previously provided, and
·ABB19 v MICMSMA [2022] FCA 715.
Non-disclosure certificate

Tribunal 1 noted the certificate issued by a delegate of the Minister under s 438 of the Act located on the Department’s file provided to the Tribunal.
Section 438 permits the Minister to certify that the disclosure of information may be contrary to the public interest for any reason specified in the certificate.
Tribunal 1 considered the certificate and the reasons why it was issued and formed the view that the certificate is valid. At the hearing Tribunal 1 disclosed to the applicant a copy of the certificate and explained that the documents that are the subject of the certificate related to enquiries regarding his citizenship status in the RSA. Tribunal 1 noted that the Department had not received a conclusive response about his citizenship status at the time he lodged his protection visa application.
Based on the information before it, the Tribunal is satisfied that the certificate is valid and was correctly disclosed to the applicant.
Background
The applicant is [age] years old and claims that he was born in [Town 1], Maniema province, DRC. He obtained Congolese citizenship by birth. The applicant claims to speak Swahili, French and English. He claims he belongs to the [Ethnic Group 1] ethnic group and Catholic faith. He claims his first wife and a [child] were killed and that he is married to his second wife and has [number of children].
The applicant lived in Rwanda from [between specified years]. He returned to the DRC in [year] and fled to the RSA in October 2001. He obtained refugee status in the RSA in 2002 and permanent residency in 2009 and he applied for South African citizenship in 2013.
At the time of the first Tribunal decision (13 December 2018) his application for citizenship had not been determined.
Country of reference
Tribunal 1 identified that a critical question before the Tribunal is whether the applicant is prevented from making a protection visa application because he is a national of two or more countries. Tribunal 1 explained this at the hearing and the applicant agreed to sign a consent form giving the Tribunal permission to make enquiries with the government of the RSA about his citizenship and migration status.
The Tribunal received advice that the applicant was a permanent resident and his RSA travel document is genuine and no further information was provided about whether he is on a pathway to citizenship. Having regard to this and the country information, Tribunal 1 found that there was no evidence to confirm that the applicant has been granted citizenship by the RSA and that he is not a national of the RSA.
At the first hearing, the applicant claimed that he was able to apply for citizenship four years after applying for and receiving permanent residency. He said that the system has now changed and people require 10 years of residency before they can apply.
At the second hearing, the applicant claimed that his application had been rejected by the government of the RSA. The applicant claimed that the conditions for acquiring citizenship were changed and that applicants were required to visit the embassy of their country of origin in the RSA to produce confirmation of nationality, a police check and birth certificate. and he did not do that as he was out of the country.
The finding of Tribunal 1 that that the applicant had a legally enforceable right to enter and reside in the RSA, that s 36(3) applied and that one or more of the qualifications in subsections (4), (5) and (6) did not apply was one of the grounds of appeal before the Federal Court of Australia.
The applicant’s RSA permanent resident permit stipulates in Note (v) that:
Permanent residents who are absent from the Republic for three years or longer may lose their right to permanent residence in the Republic. A period of absence may only be interrupted by an admission and sojourn in the Republic.
Given that the applicant had been absent from the RSA for more than three years, in ABB19 v MICMSMA [2022] FCA 715 his Honour Chief Justice Allsop was satisfied that the potential defeasibility of the applicant’s right to enter and reside in the RSA meant:
…the Tribunal’s finding that the appellant had an unqualified right to enter and reside in the RSA in the context of s 36(3) was unreasonable and not open on the materials before it, and that such an error was ‘material’ in the relevant sense and thus a jurisdictional error: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590.[2]
[2] ABB19 v MICMSMA [2022] FCA 715 at [79].
Based on the evidence before it, the Tribunal is not satisfied that the applicant has a current enforceable right to enter and reside in the RSA and finds that s 36(3) does not apply.
Based on the evidence before it, the Tribunal is satisfied that the applicant is a citizen of the DRC and that the DRC is the receiving country for the purpose of assessing his application.
The applicant’s claims
Having determined that the DRC is the receiving country, the Tribunal considered the applicant’s claims relating to the DRC.
The applicant claims to fear harm in DRC because of his political opinion, his imputed political opinion, his race, his level of education, the time he has spent in Rwanda, the RSA and Australia, and his religion.
In his Statutory declaration dated 20 October 2014 the applicant claimed to fear persecution in South Africa or being returned to the DRC where he would be persecuted.
He claimed that after high school he undertook further studies in [subject 1], completed his licentiate in [year] and started working as [an occupation 1]. He was then employed at [Employer 1 in] Rwanda as [an occupation 2] and head of the [Project 1] [between specified years]. [Employer 1] was located in [a town] near the military barracks where they were training government soldiers to fight in the Congo. He came to know many soldiers through their close proximity. His work involved working in the community and attending international meetings, where he met colleagues from the Congo.
He claimed he was the only Congolese working at [Employer 1] and many of his Rwandese colleagues knew him by reputation because they had studied at the same institute in the Congo.
The applicant said that problems started because (then) DRC President Joseph Kabila had chased away the Rwandese who helped him gain power, which upset the government of Rwanda. Rwandese grew suspicious of the applicant and his colleagues reported he was speaking to his Congolese counterparts. They suspected he was passing on information about troop movements and possibly providing financial support to the Congolese cause. The second issue was the Minister wanted to put one of his own people in the applicant’s role. The applicant’s employment was terminated. The new director told him that if he did not leave, he would die.
He went to Goma [in] August 2001. At that time Goma was under the control of Rassemblement Congolais pour la Démocratie (Rally for Congolese Democracy (RDC)), which was backed by the Rwanda government. The second week he came across some soldiers from Rwanda whom he knew. They asked what he was doing and he said he was in Congo because he was Congolese. They followed him home and saw where he lived.
On [a day in] August 2001, soldiers came to his house at night and kidnapped him. He was held with other people who had been arrested but it was not a normal prison. On the second day they questioned him and accused him of spying. They said his name had been put on a blacklist. He was held another two days and each morning and evening the soldiers would come into the cell and hit the occupants on the head or back. After the fourth day, a soldier who he knew came at night and took him to his house and watched him enter the house before he left.
The next day, he took a boat from Goma to Bukavu alone. He made his way to Lubumbashi, which was under government control, and arrived [in] October 2001. The city was in panic and soldiers working in intelligence for the government were screening all the cars. When the applicant said he came from Goma he was put to one side. He was held for two days before being interviewed by soldiers who took his passport and hit him. They accused him of being a spy for Rwanda. The next day he was taken to [Prison 1], where he was held for [number] days without being charged. Each day, the soldiers hit the detainees and he feared being tortured, imprisoned and killed.
[Force 1] soldiers attacked the prison and in the ensuing panic a door was left unlocked and the applicant and many other prisoners escaped. They crawled away on their knees to avoid the gunfire and travelled through the bushes to the city. The applicant went to a friend’s house who arranged for him to go to the RSA in a truck and he left [later in] October 2001.
In January 2002, he found out RDC soldiers went to his house after he escaped and killed his wife and [a child]. His [other children] were not at home, so they survived.
In the RSA, he was granted refugee status in April 2002 and could work and study but he never felt fully accepted. [In] January 2005 in [a named location], the South Africans organised a protest against foreigners and he was hit with a stick by a man and woman. The police took him to hospital and he made a police report on [that day].
He moved to [a named city]. [In] May 2008, he was stopped by a mob and injured with a knife. He avoided being set alight by showing them his student card.
He was part of the Congolese community, which had a committee of people elected from the community to look after their wellbeing. The organisation was not a registered association because of the cost involved. In 2011 he was elected to the [committee] as Vice President. They performed social welfare tasks and discussed politics in the DRC. [In] June 2013 they held a demonstration registered with the police. There were 200–300 participants and some were arrested.
They organised a second demonstration [in] June 2014 but did not get registration. They thought that was because of the political relationship between the RSA President Jacob Zuma and President Kabila. He claimed 1400 people gathered and police erected a roadblock and used hoses to disperse people. He claimed that [one official] of the committee, [named], was arrested along with about nine others.
The applicant said he was extremely afraid of being arrested as one of the organisers. He spent his days at the university, he went to [Country 2] illegally for [number] days [in] July and then returned to the RSA and kept a low profile. He resigned from his committee position and spent his days at the university, preparing for the conference in Australia. He had submitted a paper in May that was accepted. A contact in the passport office helped him extend his passport.
He said if he returned to the Congo he would be arrested on arrival because they would assume he was advocating for change. His activities in the RSA, including organising demonstrations and telling people about human rights abuses in the DRC, are not permitted and the government arrests the leaders of any political party that tries to organise such activities. In prison he would be at risk of torture. He would be persecuted because of his anti-government political opinion; as an educated Congolese returning from other countries and because he is from an eastern tribe and knows those who are in power who are from Rwanda. He said wherever he went in the country he could be found because the military is dispersed through the country.
He claimed the people who harmed him from RDC-Goma are now in the new rebel groups – M23 and M27.
In his Statutory declaration dated 19 December 2014, the applicant claimed that his wife told him unknown men had been to their house asking for him during the day on [specified dates in] November 2014 and in the middle of the night on [two other dates in] November 2014. The son of a friend stayed at their home on [two nights] and then his family moved to new accommodation [later in] November.
In his Statutory declaration dated 29 October 2015 – post interview, the applicant said he was confused during the interview as he had not had the opportunity to prepare and he forgot some information and mixed up some events. He explained that he had relied on advice given by refugee friends to put a lot of children in his humanitarian application, which was why he had included extra children and a fictional spouse when applying for a humanitarian visa in 2008. He said he relied on advice given by refugee friends and his whole family was dependent on him as he was the only one working, so he included his siblings’ children (his adopted children) as his own.
He claimed he lost the trust of his family when he converted from Islam to Christianity in 2012. From that time on, his Muslim family members did not want the children living with him.
He claimed the family information in his Protection visa application is correct and that his immediate family is made up of his wife, [named], and his living children: [named].
He claimed that his life would still be in danger in the DRC, even though he had left 14 years before, as the country is still insecure and the same people are in power. He claimed that he would be targeted as an intellectual who has been living abroad, as someone who knows who is Congolese and who is Rwandan, and would inform people that the DRC is a Rwandan colony, and because his tribe is connected to the Rwandans.
He claimed to fear his family members who do not agree with his religious conversion may denounce him to the government security officers.
In his Statement provided on 7 January 2017 in response to the Department decision, the applicant provided more detail about his employment at [Employer 1] as [an occupation 2] and head of the [Project 1] [between specified years] and his engagement with the soldiers. He explained in this role he visited the four [project sites] in [specified locations] each month. During the war of aggression in the DRC, there were military training centres at [District 1] and [another location] and the applicant established friendly relations with some of the military leaders. Together with his driver, he would also visit the Congolese recruits in the military training centre who came from the area under control of the Congolese Rally for the Democracy (RDC) rebel government – places including Kisangani, Kindu, Bukavu and Goma. Sometimes he invited Congolese recruits to his house in [District 1].
He was removed from his position and returned to the DRC [in] August 2001 via Goma, which was under the control of the RDC. On [a day in] August 2001 he was arrested by Rwandan soldiers in his home in Goma and taken to an RDC prison for five days. He claimed a soldier he had known in Rwanda helped him escape, took him home and helped him get to the harbour, and he made his way to Lubumbashi, which was under the control of the government.
He arrived in Lubumbashi [in] October 2001 by vehicle. Some [distance] from Lubumbashi was a heavily armed military barricade and all passengers and their luggage were searched. Being found with his [Employer 1] service card in his Congolese passport, he was arrested and all his documents were confiscated. The government soldiers sent him to their barracks for interrogation for two days then to [Prison 1] on [date]. The [Force 1] attacked the prison, allowing the prisoners escape. He found a truck to RSA and left the DRC [in] October 2001 and arrived in RSA [later in] October 2001.
He claimed that in 2006 in the RSA he took the initiative to raise the Congolese refugees’ awareness about the political situation in the DRC and to look at how they could serve the DRC to find solutions to its problems even if they were living abroad. He said from 2006 to 2014, he and other leaders of the Congolese refugee community ([Agency 2]) decided to organise demonstrations calling on the RSA government to stop supporting the DRC’s dictatorship government and informing the authorities they were ready to return home provided democracy is established and the Congolese government stopped the killings of civilians, human rights activists and opposition leaders.
He claimed he took part in demonstrations in the RSA in 2013 and 2014, having taken on the [Agency 2] leadership in 2013. He claimed that to preserve the strong relationship between the governments of the RSA and the DRC, the South African police are very severe against Congolese immigrants, including refusing permission for demonstrations.
The applicant said there are more than 450 ethnic groups in the DRC and four national languages and that French is the official language. He claimed that belonging to the [Ethnic Group 1] and not accepting that the then President Joseph Kabila Kabange was Congolese and the biological son of the late President Laurent Desire Kabila meant he would be considered a sworn enemy of the government and he would be killed on his return to the DRC.
At the hearing with Tribunal 1, the applicant reiterated his claims about his time in Rwanda and fleeing the DRC and that he was personally targeted because the RDC soldiers were suspicious of him.
Tribunal 1 acknowledged that there are a lot of problems in the DRC and that there would be an election soon and asked how the applicant personally would be at risk. The applicant explained that he was at risk because there was no respect for human rights, people are arrested for no reason and then they are killed, and the government does not want to hear from people who want to improve the wellbeing of the population.
When asked if he had ever been involved in politics, the applicant said that everyone is forced into politics, even if they do not want to talk about it. He gave the example of wanting to travel in the bus. He said you will have to rush to get in and when you try to explain why people are suffering and ask them why the government wants it to be this way, home security will come in. He said if you don’t have the papers, the minute they see you are from overseas they will think you are against them.
Tribunal 1 pointed out that the applicant was born in the DRC and has papers. The applicant claimed that he is not a foreigner but he would be treated like one. Tribunal 1 asked why, given he was born and educated in the DRC. The applicant said he would be considered a foreigner because they will consider that he speaks for the population and he will stick out as a person who does not belong because of the way he talks, behaves and sees things work. He said that people don’t hesitate to shoot and kill.
In his Statutory declaration dated 13 January 2023, the applicant claimed he has lost his permanent residency from RSA as he has been out of the country for over eight years and so he does not have a present right to return to and reside in the RSA.
He reiterated claims made earlier and explained that his primary fear is he would be killed if he returned to the DRC. He said that although the government had changed, the same military group that controlled parts of the north-east region remained in control. The RCD was rebranded as the National Congress of the Defence of the People (CNDP) and then M23 and is led by the Rwandan Defence Minister. He claimed that members of this group killed his wife and [child] in 2001 and, if they discovered who he was and about his time in Rwanda, they would target and kill him. He also fears persecution because of his time in a western country and because he is well educated.
The applicant provided country information about the resurgence of M23 in North Kivu and the human rights situation in the DRC from the United Nations report ‘United Nations Organization Stabilization Mission in the Democratic Republic of the Congo’ and a report by Catherine Ramos ‘Unsafe Return III Removals to the Democratic Republic of the Congo 2015–2019’ about the risks to returnees.

He claimed if he were returned to the DRC, he would likely be forced to relocate out of the country for his safety.
He advised that his immediate family is made up of his wife and [number] children. He claimed his wife, [and specified children] were living in the RSA and [another child] was living in the DRC.
The applicant claims to fear being killed because he was a pro-democracy demonstrator in the DRC.
The applicant claims to fear persecution and serious harm from M23 and any other rebel groups that are strengthening their influence in the DRC.
He claims to fear persecution from the members of these rebel groups who remain in government.
He claims that if M23 discovers who he is, including learning about his time in Rwanda and given they killed his wife and [child], he will be a target and they will kill him. He claims the DRC government would not be able to protect him.
At the hearing 14 March 2023, the applicant reiterated his claims to fear being killed by M23 and the DRC soldiers because of his time in Rwanda, his ethnicity and his time in the RSA and Australia.
He claimed that both sides of the country would consider him a very dangerous character because of his tribe and because they believe he would influence the population and incite people.
He claimed that there are other cases like his where people who have been deported from England, the RSA and other African countries have disappeared when they arrived at the airport in Kinshasa or put in jail. He believed that he would be persecuted in the same way.

100. He claimed that people would consider him as someone who could trigger a revolution because he has lived outside of the DRC for 20 years and he is well educated. He said people would assume that he had learned a lot about work rights and paying taxes and would be able to influence people so it would be best to put him in jail.
101. The applicant was asked if he had engaged in political activities in the DRC. He said that he was a member of the civil society and they helped the population. He claimed that in the DRC he had associated with people to help groups of the population fight for their rights. He said they worked for the quality of the water, for health rights and to get medication.
102. He claimed he started when he was a student and continued when he finished his studies. He was helping with the distribution of medication from UNESCO. He said they were volunteers and were called to assist when there was something to be distributed. The group was called [Group 1] and the head office was in Kindu, Maniema province.
103. When asked why anything would happen to him now because of his time working in Rwanda, the applicant explained that the same people from Rwanda who thought he was going to provide information to the population have reinvented themselves at M23. When asked why they would remember him, the applicant said that when they know that he worked in Rwanda and that they killed his wife, when they become aware of his story, he will be persecuted. He said they will find out because there are people in government who were in M23. He said they will think he is coming from a Western country, he has a lot of information, he is well educated and his wife was killed in his place and they will say they have to get him.
104. When asked again why he would be remembered, as he did not have a high profile and was not a political activist, the applicant said as soon as he went home, he would be arrested. After he is arrested they will do some investigation and from this investigation they will find out he is a dangerous character. He said after they do their investigation, they will find out he was in Rwanda and while he was in Rwanda he was considered a person able to carry information. And in the DRC he is seen as someone able to carry information to Rwanda.
105. When asked why he had not spoken about [Group 1] before, the applicant said he had never been asked a question about his time with [Group 1] and this was before he went to Rwanda to work. He said he did not mention it because no questions were asked and now questions are being asked. He said he was helping to distribute the medication to the population otherwise the medication would have been sold.
106. He claimed that he was part of [Group 1] that was part of civil society and their activities were to help international organisations for the distribution of medication, for instance. He claimed that in the DRC the government, the parliament and the civil societies are seen as three groups that fight each other. Sometimes the civil society condemns a member of parliament.
107. He said their group was there to help the population and they were seen as political. He said when a new government is formed and when they are looking for new members, a member of the civil society can become a member of parliament. He explained that is why he says that what they do in the civil society is in the framework of a political opinion.
108. When asked why he would be remembered, the applicant said he was quite well known because of his past at university as a student leader and that the position he had in Rwanda was a good position. He said that some of his former colleagues are university rectors or members of parliament.
109. It was put to the applicant that he had not raised being a member of a political party or a university leader before. He said he did not do that because when he arrived in Australia he was not asked and he had the feeling that they did not what to know the depth of his case. He said to look or listen to the hearing, which focused on a problem attached to his residency and the RSA. He said when people ask him a question in depth he answers. He said when he said he spent a lot of years outside the DRC, they didn’t want him to talk about that.
110. The applicant explained that when he was a student, there were only two political parties and all the students were members of the UDPS (Union for Democracy and Social Progress). When asked what being a member of UDPS entailed, the applicant said they wanted change, they wanted democracy and to freely choose their president. He said they were there to help with democracy and to encourage a multi-party system.
111. The applicant said that he now belongs to Action for the Development and Conservation of Biodiversity and Nonda (ADCBN) (Nonda is a community that wants to develop) that has members ‘everywhere’ including in Canada, Australia and the DRC. They meet by Zoom. He said that some of his former friends see him as somebody who is an opponent to the country because of his ideas and his thinking when he is talking to them. He said his ideas for development are different to the government’s.
112. The applicant said, for example, they would like to organise power in the community with solar panels. People said that the government must receive a fee and he did not agree. He said when he talks about solar panels with other members in Canada or France, they give a price. He said in Australia he’s told it is a good price and quality. If he says send 30 panels, they say 10 must be given to the governor of the province for free and he says no. He said they are fighting for the people and of course, when they buy panels in Australia they have to find the funds and if they have to give 10 per cent to the governor it is not right. He said that if you are part of a development project, never in a country like Australia would a member of parliament or government come to your place and ask you for a bribe. He said his thinking is very different to the thinking of the people who have stayed in the country.
113. At the hearing, the applicant was invited to provide further evidence about why he was at risk in the DRC and he provided a Statutory declaration dated 3 April 2023. The applicant claimed that he had been a member and activist leader of a civil society of volunteers constituted by former students at the Universities of the DRC, called [Group 1]. He claimed [Group 1] fought for the interests of human rights, democracies and the rights of the population. He claimed he was opposed to the ideas of the authorities who were involved in corruption and the theft of goods that were intended for the people, such as hospital beds, mattresses, medicines from national and international organisations as well as other sponsorship.
114. He claimed he had organised demonstrations in Kindu (Maniema province), Bukavu (Southern Kivu province) and Goma (Northern Kivu province) to claim all the materials intended for the population while denouncing the looters of the materials and forcing them to return them to state hospitals.
115. He claimed [Group 1] was considered a political party that opposed any ideology repressive to civil societies and it was a mixture of several former student members of several political parties and independent parties.
116. He claimed that, as an activist leader of [Group 1], he was arrested many times and put in prison because of his political opinion. He claimed he was tortured in prison and not allowed visitors. He claimed that the union of all the students in Kindu, Bukavu and Goma, the civil societies and the members of [Group 1] organised demonstrations for him to be released.
117. He claimed that after his last release from the central prison of Kindu, there were killings and kidnappings of members of his tribe and his life was in danger. He settled in Goma but, as he was still an activist leader of [Group 1] and given his political opinion had not changed, he finally fled to Rwanda.
118. He claimed some members of the RDC remained in government to sow insecurity and others were sowing insecurity under the label M23. He said M23 continues to attack large parts of eastern DRC. He provided country information about massacres attributed to M23 rebels in eastern DRC and fighting between the government and M23. He claimed to fear harm and persecution from M23 or any other rebel groups and from members of the rebel groups who remain in government.
119. He referred to the UNHCR 18 November 2022 call for a ban on forced returns of asylum seekers to eastern DRC and claimed that there was nowhere in the DRC where he would be safe from persecution because he is a member of a tribe based in the north east and it would not be reasonable for him to return to any other region.
Country information
120. In considering the applicant’s claims, the Tribunal has considered the country information available in relation to the DRC.
The situation in North Kivu and eastern DRC
121. After the second Congo war (1998–2003), some RCD combatants moved to the CNDP, a Rwandan-backed rebel group.[3] In March 2009, the CNDP signed the 23 March 2009 peace agreement with the government and many CNDP combatants joined the Congolese national army (FARDC).
[3] Ben Shepherd, ‘Congo, Rwanda and the National Congress for the Defence of the People’, Accord (Issue 22, January 2011).
122. Human Rights Watch reported that in April and May 2012, previous members of the CNDP mutinied in protest against the DRC government’s failure to fully implement the 23 March 2009 peace agreement. Soldiers who participated in a mutiny originally made up M23. With support from Rwanda, M23 forces took over large parts of North Kivu in 2012 and the Rwandan army deployed its troops in eastern Congo to support the M23 rebels in military operations. UN investigators said that Ugandan army commanders also sent troops and weapons to reinforce some M23 operations and assist with recruiting.[4]
[4] Human Rights Watch, ‘DR Congo: Killings, rapes by Rwanda-backed M23 rebels’ (13 June 2023).
123. M23 was defeated in 2013 and lay dormant until late 2021 when it ramped up attacks.[5]
[5] Brian Sabbe ‘Why M23 is not your average rebel group’ IPIS Briefing – January 2023 (6 February 2023).
124. Human Rights Watch has reported as follows on the current situation:
From March to May 2023, Human Rights Watch interviewed, in-person and by phone, 81 Congolese victims of abuses, family members, witnesses, local authorities, representatives of Congolese and international nongovernmental organizations, UN officials, and foreign diplomats. Human Rights Watch also verified, using satellite imagery, photos, and videos, the shelling and destruction of civilian infrastructure. Most of the abuses documented took place between November 2022 and March 2023.
Human Rights Watch documented 8 unlawful killings and 14 cases of rape by M23 fighters. Human Rights Watch also received credible reports of over a dozen other summary killings by M23 forces, but because of access and security constraints, could not independently corroborate them. In addition, seven people were killed and three injured in apparently indiscriminate shelling on populated areas in Kanombe, Kitchanga, and near Mushaki, during M23 attacks.[6]
[6] Human Rights Watch, ‘DR Congo: Killings, rapes by Rwanda-backed M23 rebels’ (13 June 2023).

125. In December 2023, the Centre for Preventative Action reported on recent developments in the DRC, including the ongoing confrontation with Rwanda and M23 rebel activity in North Kivu:
Exacerbating the decades-long conflict in Congo’s resource-rich eastern provinces, the country is embroiled in an ongoing confrontation with Rwanda. In 2022, M23 rebels resurfaced after five years of inactivity and gained control of large parts of the North Kivu province by July 2023. Kinshasa accused Kigali of funding and supporting M23’s resurgence (an accusation supported by the African Union, European Union, and the United States). In return, Kigali accused Kinshasa of once again supporting Hutu extremist militias and increased its military presence inside the Congo. Rwanda and Uganda—and militias with their support—have financial stakes in Congolese mines (though they are not always legitimate). In October, UN Special Envoy to the Great Lakes Region Xia Huang warned that tensions between the two countries could lead to an open military confrontation, expressing his concerns about “the military strengthening in both countries, the absence of direct high-level dialogue, and the persistence of hate speech.”
In a promising move, the two countries agreed in late November to a pact negotiated by the United States to bilaterally reduce military presence on their shared border, reduce hate speech, and refrain from efforts to affect one another’s political systems. Despite the agreement, political animosity between Kinshasa and Kigali was reinforced on December 9, when Congolese President Felix Tshisekedi compared Rwandan President Paul Kagame to Adolf Hitler. Three days later, the White House announced that it had brokered a seventy-two hour ceasefire in the eastern Congo including a partial drawdown of the M23 (a group with ties to Rwanda). However, past attempts to reach a lasting ceasefire have proven unsuccessful and some rebel groups in the region have displayed hesitance to comply since the agreement was announced.
Kinshasa ordered international and regional contingents to leave the country following years of widespread protests against peacekeeping forces, which have been accused of abusing civilians and labeled ineffective by officials. In May, the South African Development Community (SADC) agreed to deploy troops to eastern Congo to assist UN forces ahead of the December 2023 elections. However, a month later, the UN announced a planned withdrawal of the largely unpopular MOUSCO peacekeeping mission, a decision the United States called premature. The poor reputation of the UN mission has led to violent unrest and extrajudicial killings of anti-MONUSCO protestors by Congolese security forces in Goma. UN officials have acknowledged that the drawdown of MONUSCO and other forces poses the risk of a security vacuum amid a deteriorating security situation in Ituri and North Kivu. The drawdown of foreign forces will coincide with a highly contested presidential election on December 20, 2023. East African Community (EAC) troops began their drawdown in early December.
In addition to the threat of M23, the Congolese military and residents of eastern DRC continue to contend with increasing attacks by the Islamic State-affiliated Allied Democratic Forces (ADF) and other groups. DRC’s relations with its other neighbors remain charged, including those with Burundi and Uganda.
DRC is home to nearly 7 million people who have been internally displaced due to the threat of violence and atrocities, extreme poverty, and mining expansion. The displaced population urgently needs security support, medical aid, and other humanitarian aid. Approximately one million Congolese nationals are seeking refuge beyond the Congo’s borders.
DRC is holding national elections on December 20, 2023. In the three months leading up to the election, candidates have been attacked by the president and even jailed, and the political opposition is split between two dozen candidates. International monitoring groups have raised alarms about the corrupt practices of the Congo’s electoral commission and the potential for political violence in and beyond Kinshasa, which would compound the conflict in the eastern provinces and further increase displacement just as foreign troops withdraw from DRC.[7]
[7] Centre for Preventative Action ‘Conflict in the Democratic Republic of Congo’, Global Conflict Tracker (18 December 2023).

126. In its Country Reports on Terrorism 2019: Democratic Republic of the Congo, the United States Bureau of Counterterrorism reported that the rebel group Allied Democratic Forces (ADF) established ties with ISIS in late 2018. ISIS publicly recognised ADF as an affiliate in late 2018 and claimed responsibility for ADF-attributed attacks on the Armed Forces of the Democratic Republic of the Congo (FARDC).[8]
[8] United States Bureau of Counterterrorism Country Reports on Terrorism 2019: Democratic Republic of the Congo (2019) Democratic Republic of the Congo - United States Department of State.
127. In its 2023 Annual Report, the United States Commission in International Religious Freedom included the following on the activities of Islamic State in the DRC:
The Islamic State continued to pose a threat to freedom of religion or belief, gaining strength, territory, and fighters in several contexts. In addition to threats from the group discussed in the relevant country chapters—including Afghanistan, Pakistan, Syria, and Turkey—affiliates in Mozambique, the Democratic Republic of Congo (DRC), and others continued to conduct attacks, harm civilians, and enforce harsh interpretations of Islamic law in their campaigns to establish governance based on their religious beliefs. For example, the Islamic State-affiliated Allied Defense Forces (ADF) reportedly continued to enforce a strict interpretation of Islamic law and commit egregious violations of freedom of religion or belief, including forced prayer, conversion, and marriage. In addition to violent threats from Islamic State affiliates, armed groups in the DRC directly placed religious communities in their line of fire, including targeting houses of worship. An attack in March by the Cooperative for Development of the Congo (CODECO) on a church compound in Ituri Province killed 18 civilians seeking refuge there. Rwandan-backed armed group M23 also attacked worshipers at an Adventist church in the context of a wider massacre that killed an estimated 270 people in December in Kishishe.[9]
[9] United States Commission on International Religious Freedom 2023 Annual Report (April 2023) 73.

128. The 30 December 2023 midterm report to the United Nations Security Council by the Group of Experts on the Democratic Republic of the Congo reported that the provinces of the eastern DRC were affected by episodes of intense violence.
… In North Kivu, all parties to the conflict breached the ceasefire agreement. The newly created and Government-sponsored armed group coalition Volontaires pour la défense de la Patrie (VDP) triggered a flareup of violence. Heavy fighting resumed between M23, supported by the Rwandan Defence Force (RDF) and FARDC supported by VDP, Forces démocratiques de libération du Rwanda (FDLR), private military companies and Force de défense nationale du Burundi (FDNB) troops. Civilians belonging to all communities found themselves in the crosshairs of the different parties to the conflict, exposed to retaliation and forced to flee. Indiscriminate shelling, kidnappings and targeted assassinations were committed by both sides.

Special forces of the Republican Guard killed over 57 unarmed demonstrators in Goma, following rumours they had been infiltrated by M23.[10]
[10] United Nations Security Council, ‘Midterm report of the Group of Experts on the Democratic Republic of the Congo’ (S/2023/990) (30 December 2023).

129. In its February 2023 conflicts to watch report, the Armed Conflict Location & Event Data Project (ACLED) observed:
Political violence events remained concentrated in the eastern region in 2022, driven by political rivalries, land disputes, mineral interests, and foreign intervention. Specifically, Nord-Kivu province accounted for the highest number of political violence events (Political violence is defined as the use of force by a group with a political purpose or motivation, or with distinct political effects. ACLED Codebook.) and grew by 7% from last year. Of the groups operating in eastern DRC, the Allied Democratic Forces (ADF) and the Cooperative for the Development of the Congo (CODECO) remained two of the most active [in eastern DRC]. The ADF has early roots as an opposition group to the Ugandan government but later positioned itself as an Islamist militia with pledges to the Islamic State and merger with other militias operating in Nord-Kivu and Ituri provinces. Despite an overall decrease in ADF activity from 2021, the group directed more violence toward civilians in 2022, driving an overall increase in attack events in the DRC of 12% compared to 2021. ADF’s targeting of civilians accounted for nearly 40% of the total estimated fatalities across the country and comprised 27% of violence targeting civilians in Ituri province.’[11]
[11] ACLED, ‘Democratic Republic of Congo: Rising Tensions with Rwanda amid escalating violence and upcoming elections’ 8 February 2023 cited in UK Visa and Immigration, Country policy and information note: opposition to government, Democratic Republic of the Congo (14 November 2023).

Political opinion
130. The United Kingdom (UK) Visa and Immigration Department reports that ‘there are hundreds of political parties in the DRC’, many of which are ‘organised along ethnic, communal or regional lines’. They are ‘generally able to operate and recruit new members’ but ‘are subject to restrictions and interference by the state’. In general, rank and file members in opposition to the government are unlikely to be at risk of persecution but ‘high-profile opponents may be at risk in some circumstances’. It continued:
3.1.5 If someone is considered to be (or would be perceived to be) a person of interest (in an opposition group), then likely adverse consequences could include imprisonment. In the country guidance case of BM and Others (returnees – criminal and non-criminal) DRC CG [2015] 293 (IAC) (2 June 2015) (heard in March and April 2015), the Home Office acknowledged, amongst other things, that, owing to the poor prison conditions, a period of detention of more than approximately one day would result in a breach of Article 3 [of the European Convention on Human Rights]. The UT [Upper Tribunal] accepted this assessment as ‘clearly warranted by substantial and compelling evidence’ (paragraph 13). Conditions in detention centres and prisons continue to be very poor, with ill-treatment reportedly commonplace. It therefore remains the case that a person detained for more than a day, even for short period of time, is likely to face conditions that breach Article 3 (see Conditions and treatment in detention).[12]
…
[12] UK Visas and Immigration Country policy and information note: opposition to the government, Democratic Republic of the Congo, November 2023 (14 November 2023).
10.4 Conditions and treatment in detention
10.4.1 The USSD’s 2022 Country Report on Human Rights Practices noted, not specifically in regard to persons detained because of political activities ‘Conditions in most prisons throughout the country were harsh and life threatening due to food shortages, gross overcrowding, and inadequate sanitary conditions and medical care. Harsher conditions prevailed in small detention centers run by the ANR, Republican Guard, or other security forces, which often detained prisoners for lengthy pretrial periods without providing them access to family or legal counsel.’[13] (footnotes removed)
[13] UK Visa and Immigration, Country policy and information note: opposition to government, Democratic Republic of the Congo, November 2023 (14 November 2023).

DRC authorities
131. There is a high perception of public sector corruption in the DRC. The Corruption Perceptions Index ranks 180 countries and territories by their perceived levels of public sector corruption, scoring on a scale of 0 (highly corrupt) to 100 (very clean) In 2022, the DRC scored 20 points and was ranked 166^th of 180 countries.[14]
[14] Transparency International, Corruption Perceptions Index 2022 [Web Page] The Corruptions Perception Index is based on investigations and surveys of nine independent institutions and published annually by Transparency International.
132. In its most recent annual report, Amnesty International said that the DRC authorities lacked the political will to act against the perpetrators of human rights violations:
The Democratic Republic of the Congo (DRC) continued to experience serious human rights violations, including mass killings in the context of armed conflict and inter-communal violence, a crackdown on dissent and ill-treatment of detainees. People from regions affected by armed conflict, including eastern DRC, were particularly affected amid mass displacement and a deepening humanitarian crisis. The authorities continued to show a lack of political will to hold the perpetrators of human rights violations to account. The right to education was violated.[15]
[15] ‘Democratic Republic of the Congo 2022’ Amnesty International (2022–23).

133. In its policy and information note on opposition to the DRC government, the UK Visa and Immigration Department assessed that ‘[w]here the person has a well-founded fear of persecution from the state, it is unlikely that they will be able to relocate to escape that risk’.[16]
[16] UK Visas and Immigration Country policy and information note: opposition to the government, Democratic Republic of the Congo, November 2023 (14 November 2023).
Assessment and findings
Ethnicity and religion
134. The applicant claims, and the Tribunal accepts, that he is a DRC national who was born in [Town 1], Maniema province, DRC, that he belongs to the [Ethnic Group 1] ethnic group and that he last resided in Goma.
135. He claims, and the Tribunal accepts, that he is a Catholic, having been baptised as a Christian [in] March 2013 in [a specified church] in Pretoria, RSA. The applicant claims that before becoming a Christian, he was a Muslim. To support this claim, the applicant [specified family names].
136. In considering this claim, the Tribunal considered that in the DRC around 50 per cent of people are Catholic, 20 per cent are Protestant, 10 per cent are Kimbanguist Christians and 10 per cent are Muslim. Maniema province, where the applicant was born, is the historic birthplace of Islam in the Congo and the home to the majority of Congolese Muslims. In Kindu, the capital of Maniema, Muslims make up 25 per cent of the population and in Kasongo, the second largest city, they make up 80 to 90 per cent of the population.[17]
[17] Ashley E Leinweber, ‘The Muslim Minority in the Democratic Republic of Congo’ Cahiers d’etudes africaines [En ligne], 206–207 (2012) The Tribunal also considered that the Catholic Church recognises ‘one baptism for the forgiveness of sins’ and it recognises all validly administered baptisms using the Trinitarian formula,[18] which is that used in the Catholic and Protestant churches.
[18] ‘What the early Church believed: Trinitarian baptism’ Catholic.com [Web Page] Based on the evidence before it, including where the applicant was born, the names of his family members, the religious make up of the DRC and his baptism at the age of [age], the Tribunal accepts that the applicant converted from Islam to Christianity and assesses his claims accordingly.
Employment
139. The applicant claims, and the Tribunal accepts, that he was employed in a senior [occupation 1] position at [Employer 1] in Rwanda [between specified years]. The applicant claims, and the Tribunal accepts, that in this role he regularly visited four [project sites] and numerous farms and he also interacted with Rwandan soldiers. The applicant claims, and the Tribunal accepts, that he was dismissed from his position at [Employer 1] in 2001 in part because of rising tensions between Rwanda and the DRC and he subsequently returned to the DRC.
140. The applicant claims that he was identified and arrested by RDC-Goma rebels in Goma, North Kivu province, who knew him from Rwanda. The applicant also claims he was detained by government soldiers in Lubumbashi in Katanga province because he had come from Goma and they imprisoned him after finding he had been living and working in Rwanda, as evidenced by his [Employer 1] service card.
141. In May 2001, Human Rights Watch (HRW) reported that the rebel group RDC-Goma controlled parts of North Kivu, South Kivu, Maniema, Orientale and Katanga provinces and that HRW holds that these areas should be considered under the occupation of Rwanda. HRW advised that it had received credible reports indicating that Rwandan Patriotic Army troops withdrawn in mid-March from the front lines had not left the country but were redeployed elsewhere in South and North Kivu.[19]
[19] Suliman Ali Baldo, ‘Rampant human rights abuses and occupation of the DRC by foreign armies’, Human Rights Watch (17 May 2001)
142. Throughout his engagement with the Department and the Tribunal, the applicant has maintained his claim that he was identified and arrested in Goma because the Rwandan soldiers recognised him from his time at [Employer 1]. In recounting his experiences in Goma and Lubumbashi at his hearings with Tribunal 1 and Tribunal 2 and in his statutory declarations, the applicant has provided cogent evidence that is consistent with a lived experience. Based on the country information and the applicant’s evidence, the Tribunal accepts that he was identified and targeted because of his employment in Rwanda by RDC-Goma rebels in Goma and government soldiers in Lubumbashi.
Imputed political opinion
143. The applicant claims, and the Tribunal accepts, that he holds tertiary qualifications in [subject 1] equivalent to a [Qualification 4] level.
144. The applicant claims that his level of education and the 22 years he has spent outside of the DRC, including 9 years in Australia, will make him a target of the government and armed rebel groups if he returned to the DRC now or in the foreseeable future because of his imputed political opinion and his imputed ability to organise and lead people.
145. The applicant did not provide country information to support his claim that more educated people are targeted by the government or armed rebel groups and the Tribunal has not been able to locate any such publicly available country information. However, the Tribunal accepts that the applicant would be returning to the DRC after more than 22 years abroad as a failed asylum seeker.
146. The applicant made various claims about his political activities in the DRC, the RSA and Australia, as detailed above. He did not provide third-party documentary evidence to support his claims about his membership of and activities with UDPS, [Group 1] or ADCBN and the Tribunal has not been able to locate information about [Group 1] or ADCBN. The UDPS (the Union for Democracy and Social Progress) is the party of DRC President Felix Tshisekedi,[20] who is the incumbent party leader.
[20] Lauriane Noelle Vofo Kana, ‘DRC: President’s party celebrates 40^th anniversary looking ahead to challenges’, Africa News (15 February 2022).
147. In assessing his claims, the Tribunal has taken into account that the applicant is currently not represented and that he was not represented when he applied for protection. The applicant claimed, and the Tribunal accepts, that he completed his protection visa application on his own and that when he had difficulties, he asked for help. The Tribunal is concerned that the applicant made a number of new claims to Tribunal 2 that were not made before the primary decision was made. When asked why he was making new claims, the applicant said that previous hearings had focused on his citizenship and residency rights and that when he arrived (in Australia) he was not asked. He also said that when people ask him a question in depth, he answers.
148. Although he did not provide any third-party documentary evidence to support his claims about his political activities, at the hearing the applicant provided spontaneous and detailed evidence that did not appear to be planned or rehearsed about the creation of UDPS and its key members, his activities with [Group 1] and his activities with ADCBN. He provided further details in his statutory declaration. The applicant described his motivation over time from joining UDPS because he and the other students wanted democracy and a multi-party political system, to opposing corruption with his activities in [Group 1] and ADCBN. Based on the evidence before it, the Tribunal accepts that the applicant has been engaged in political activities in the DRC and Australia and that he holds an opinion that is critical of the policies and methods of the authorities.
Does the applicant meet the refugee criterion?
149. Taking into account the findings set out above and the country information referred to in this decision and having considered his claims singularly and cumulatively, the Tribunal is satisfied that if the applicant returns to the DRC now or in the foreseeable future he faces a real chance of persecution for reasons of his imputed political opinion and his religion.
150. If the applicant returns to the DRC now or in the foreseeable future, the Tribunal considers it unlikely that he would face a real chance of serious harm from the DRC authorities or M23 rebels or other rebel groups because they could identify him as having worked in Rwanda [between specified years] and would draw imputations about his political opinion because of his time in Rwanda. However, while the Tribunal considers it unlikely it does consider it possible.
151. The applicant’s imputed political opinion because his is a returning failed asylum seeker, because of his previous and current political activities, and because of the political opinion he holds when considered together with his time working in Rwanda and the imputations drawn about his political opinion because of that, could put the applicant at risk of serious harm and mistreatment by the authorities, M23 or other rebel insurgents in the current political climate. While unlikely to place the applicant at risk on its own, his conversion from Islam adds to the applicant’s risk profile with some of the rebel insurgents, such as ADF and CODECO. In considering the claims cumulatively, the possibility he will face serious harm is greater than a remote chance.
152. Based on the country information, the Tribunal finds that the DRC authorities could not provide the applicant with effective protection measures from M23 or other rebel groups.
153. The Tribunal finds that if the applicant returns to the DRC now of in the foreseeable future, he faces a real chance of serious harm for reasons of imputed political opinion and religion.
154. Taking the above into account, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for a Convention-based reason.
Conclusion
155. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s 36(2)(a).
DECISION
156. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s36(2)(a) of the Migration Act.
Katherine Harvey
Senior Member

[2024] AATA 1661

31 January 2024

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