2210667 (Refugee)

This matter concerned an application for a protection visa by an individual from the Democratic Republic of Congo. The applicant claimed to fear persecution due to his opposition to the Kabila government, his conversion to Christianity, and his experiences including kidnapping and detention. The case was before the Administrative Appeals Tribunal (AAT) on remittal from the Federal Court of Australia.

The primary legal issues before the AAT were whether the applicant met the criteria for a protection visa, and if not, whether he met the criteria for complementary protection. A significant point of contention involved the applicant's status as a national of more than one country, specifically his permanent residency and claimed pathway to citizenship in South Africa, and whether this precluded him from making a protection visa application under section 36(3) of the relevant Act. The Tribunal was required to determine the issues based on the facts as they presented at the time of its determination, having regard to all previously considered material and any new evidence.

The Tribunal considered the applicant's claims in light of Ministerial Direction No. 84 and relevant guidelines and country information. It noted that on remittal, the Tribunal must continue the proceeding and deal with the issues as they currently stand, not commence a new review. The Tribunal reviewed extensive material, including statutory declarations, travel documents, employment records from Rwanda, medico-legal reports, academic qualifications, and a blog article critical of the DRC government. The Tribunal also had regard to the applicant's South African Permanent Residence Permit, which contained a note regarding the potential loss of permanent residency rights if absent from South Africa for three years or longer.

The Tribunal found that the applicant was not a national of the Republic of South Africa and therefore section 36(3) of the Act did not apply to prevent him from making a protection visa application. The Tribunal then proceeded to consider the merits of the applicant's claims for protection. The Tribunal was satisfied that the applicant had a well-founded fear of persecution for reasons of his imputed political opinion and that he would be at real risk of significant harm if returned to the Democratic Republic of Congo. Consequently, the Tribunal set aside the previous decision and granted the applicant a protection visa.