2312039 (Refugee)

[2024] AATA 4162

2312039 (Refugee) [2024] AATA 4162 (6 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Paola Andrea Aristizabal Ramirez

CASE NUMBER:  2312039

COUNTRY OF REFERENCE:                   Angola

MEMBER:Nicole Burns

DATE:6 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 06 September 2024 at 4:45pm

CATCHWORDS
REFUGEE – protection visa – Angola – fear of harm from neighbour after reporting him to police – threatened, kidnapped, tortured and raped, and family members attacked and killed – police inaction and corruption – single mother and victim of gender-based violence – mental health – young adult children’s physical and mental health – specific, detailed and generally consistent claims and evidence – inconsistencies because of passage of time and trauma – perpetrator of and motivation for attacks on family members unclear – delay in departure because of lack of funds and concern for children’s safety – fear of harm from neighbour not for refugee criteria reason, and does not relate to all areas of country – complementary protection – country information – treaty right to enter and reside in neighbouring countries limited in practice – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
AGA16 v MIBP [2018] FCA 628
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
MIMAC v SZRHU (2013) 215 FCR 35
SZTOX v MIBP [2015] FCAFC 77

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a [Age]-year-old woman from Luanda, the capital of Angola.  She came to Australia [in] September 2018 holding a visitor visa and applied for the protection visa on 15 November 2018.

3. The applicant appeared before the Tribunal on 27 March 2024 and 9 May 2024 to give evidence and present arguments about the issues in her case. The Tribunal hearings were conducted with the assistance of an interpreter in the Portuguese and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

5. The issue in this case is whether the applicant meets the criteria for a protection visa as a refugee or under the complementary protection provisions (set out below). For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

12. As there is no DFAT report for Angola, the Tribunal has relied on country information from other sources in considering whether the applicant’s fears of persecution on return to Angola are well founded, which are discussed in more detail below. 

    Background

13. Based on the applicant’s generally consistent evidence before the Department and Tribunal, the Tribunal accepts the following about her background, including her family composition and work history (in summary):

    a.The applicant was born in Angola in [Year], [before] the civil war began. She fled to [Country 1] when young, along with her mother and siblings, returning to Angola at [age] years of age where her mother left her with an uncle.  At around [age] her brother died.  She went back to [Country 1] where she attended school and stayed with her mother as her uncle was not treating her and her siblings well.

    b.In 1992, when the situation improved in Angola, the applicant returned home.  She went back to [Country 1] in [year] to complete school, before returning to Angola again.

    c.In terms of her work history, the applicant worked in the [work sector] in Lunda Norte province (located around 650 kilometres from Luanda), then as [an occupation 1] for a private company from 2000-2002 in Luanda.  After that she started a business buying [product] and reselling it at market. 

    d.The applicant joined the Angola police force in 2008.  After training she joined the [named Department] under the umbrella of the national police, first [doing job task] and then in [another] area of the same department after completing studies in [subject] (in 2015).  She worked as a police officer up until she left the country. (The Tribunal notes she provided evidence of being a police officer in the past in Angola to the Department in the form of her police identity card dated 2017 containing a photograph of her in uniform, and the delegate accepted her claims to have been with the Angolan police force.)

    e.The applicant has been married twice and has four children as follows:

    i.Her first husband was [Mr A] who is an Australian citizen originally from [Country 1].  They met when the applicant was visiting her uncle ([based] in [Country 1]) in 1996 whilst [Mr A] was visiting his relatives there, from Australia.  They had a traditional marriage in Angola before [Mr A] returned to Australia promising he would sponsor the applicant to join him.  They had two sons: [the eldest] born in [Year], and [the second son] (whom the applicant refers to as ‘[Second given name]’ in the protection visa application form), born in [Year] in Angola.  [Mr A] took [their eldest son] to Australia as a baby (aged [age]), with the promise that the applicant would join them, however this did not eventuate.  Their relationship ended in 1998 when the applicant found out [Mr A] had a wife and children in Australia and never intended to sponsor her.  [The second son] moved to Australia when he was [age].  Both [the eldest son] and [the second son] are Australian citizens and have their own children.   

    ii.Her second husband was [Mr D], originally from [Country 1], whom the applicant met when she was living and working in Lunda.  [Mr D] was working illegally [there].  They married in 2000 and had two children: a son, [Son 3], born in [Year], and a daughter, [Daughter 1] born in [Year].  They separated in 2008 because [Mr D] converted to Islam and the applicant – who is Christian – refused to do so.  The applicant and her children moved to Luanda and [Mr D] had nothing to do with them until he and the applicant got back together in 2014.  He continued to work in Lunda, and the applicant continued to work (as a police officer) in Luanda: they would visit one another on weekends and during holidays.  [Mr D] was assaulted in around mid-2018 at a bus stop in Luanda, whilst visiting the applicant and obtaining medical treatment in the capital.  He died a few days later, after his father had transported him to hospital in [Country 1]. 

14. The applicant also had a relationship with a man called [Mr G] from a few months after she broke up with [Mr D] until around 2012.  Although not their biological father, [Mr G] considered the applicant’s children ([Son 3 and Daughter 1]) his and was named as their father on their birth certificates, which the applicant obtained when they started school.  At hearing the applicant said she did this because their biological father – [Mr D] – was not Angolan and was residing in Angola illegally.  [Mr G] helped raise [Son 3 and Daughter 1] and support them financially, however they never lived together.  They broke up in 2012 because he wanted children whereas the applicant did not want any more.  Nonetheless, they stayed in touch and he continued to financially support [Son 3 and Daughter 1] for some time thereafter.

15. The applicant’s father was largely absent and her mother, who lived with her and her children in Luanda, died in 2015.  She has [siblings], including [sisters] and a brother in Angola, and [sisters] who live in [Country 1].

16. At hearing the applicant explained when she left Angola in October 2018 she left [Son 3] at their home, who was [Age] years old at the time.  One of her sisters stayed with him for a few months, then he moved to [Country 2].  Her daughter, [Daughter 1], stayed in [Country 3] studying and living in student quarters until [year] when she finished high school and returned to Angola.  Presently she is living with her aunt and waiting to have her passport renewed to return to [Country 3] to undertake university studies.  She also has some health issues, including a diagnosis of [physical condition].  [Son 3] returned to Angola from [Country 2] and has resided in a drug rehabilitation centre in Luanda since 12 December 2023.  Evidence has been provided to the Tribunal from [Daughter 1]’s [specialist] and the rehabilitation centre where [Son 3] currently resides.

17. The Tribunal notes in her application form the applicant lists two stepchildren ([Stepdaughter 1] and [Stepdaughter 2]) and states in a statutory declaration that she had a ‘lost’ twin to [the second son], called [Ms J].  She has since explained (including at hearing) that [Stepdaughter 2] was [Mr D]’s daughter from a previous relationship whom she registered as her daughter in Angola.  [Stepdaughter 1] was [Mr D]’s daughter from a relationship he had during the period they were separated.  She has lost contact with them.  [Daughter 1] told her [Stepdaughter 2] went to [Country 1] where she lives with her mother, and [Stepdaughter 1] lives in Luanda with her older sister.  [Stepdaughter 1] remains in contact with [Daughter 1] and the applicant pays her school fees from Australia.

18. With respect to [Ms J], the applicant explained she was her first husband’s niece’s daughter who was born two weeks after her [second son] was born.  Given [Mr A]’s niece was very young at the time, the applicant agreed to help look after her and her newborn baby: they moved from [Country 1] and lived with the applicant and her mother (and other children) in Angola for several years.  When the applicant went to register [the second son]’s birth she said [Ms J] was his twin.  The applicant is unsure what happened to [Ms J] as the last time she saw her was in 2015 when the applicant’s mother died. 

19. Presently the applicant works [at] [Workplace].  She is estranged from her two sons in Australia.  She sends money to her daughter in Angola to help pay for [Son 3]’s rehabilitation costs, among other things. 

    PROTECTION CLAIMS AND EVIDENCE

20. In summary the applicant claims to fear serious harm on return to Angola from a former neighbour ([Mr K]) and/or his associates because she reported him to the police for sexually abusing his daughter ([Ms L]), in 2013, when [Ms L] was [Age].   More broadly, she claims to fear serious harm on return as a woman and single mother who has been a victim of gender-based violence (GBV) in the past.  She is also concerned she will face discrimination and lack of support for her mental health issues.

21. Initially the applicant set out her protection claims in the protection visa application, stating in summary the following (relevant to the matter with [Mr K]):

    a.On 24 April 2013 her [second son] called her at work and told her [Ms L]’s father had raped her.  After returning home the applicant took [Ms L] to the doctor who confirmed the rape and took photographs as evidence.  The applicant made an official police report and on 26 April 2013 the police arrested [Ms L]’s father, [Mr K] on rape charges.  He paid USD4,000 to police prosecutor [Mr M] and was released.

    b.[In] July 2013 the applicant wrote a letter to the Director General of Criminal Investigations [about] the case.  There was no response so the applicant wrote again.  They then arrested [Mr K] and locked him up for seven months before he was released. 

    c.On 1 December 2013 [Mr K] found the applicant, pushed her against a wall and threatened to kill her.  He also threatened and falsely accused her [second son]: he was sent to prison in Angola [in] December 2013.  Shortly after he was released his father in Australia sent [her second son] a ticket to go to Australia [in] May 2014.

    d.On 29 September 2017 the applicant’s niece was stabbed to death.  She received a message via people from [Mr K] that that was just the beginning.

    e.The applicant reported the threats to her manager at work but no action was taken.  He advised her to move house.

    f.On 24 May 2018 the applicant’s then partner [Mr D] was hit on his head with a stick and died three days later.  Once more she received a message saying there was more to come.

    g.On 15 June 2018 the applicant was kidnapped.  She was forced into a car by two men unknown to her; had her hands, eyes and mouth tied; was driven to an unknown location where [Mr K] was; and when there was tortured and raped over a three-day period.

    h.[In] July 2018 the applicant went to [Country 3] with [Son 3 and Daughter 1].  On 12 July 2018 her children were attacked, and [Son 3] was stabbed in the neck with a bottle.

    i.She applied for visitor visas to Australia and [another country] from [Country 3].

    j.[Son 3 and Daughter 1] have disappeared in [Country 3]. 

22. Documents the applicant provided to the Department in support of the protection visa application included:

    ·A copy of a translated letter from the applicant to the Director of the Department of Criminal Investigations (Angola) dated [July] 2013.  In it she states that [Ms L] has been sexually abused by her father ([Mr K], a [Country 5] national); results of the exams performed by the gynaecologist at the Crime Laboratory on [date] April this year were negative, according to instructor [Mr M]; and the accused was therefore released, since there was no evidence against him.  Before she reported the matter, the applicant explains she took [Ms L] to [a] maternity centre, where the midwives examined her; as it was a Sunday there was no physician to write a report, and the midwife asked her to take photographs with her mobile.  She adds that she doubts the results of the exams were negative.

    ·A copy of a translated letter from the Provincial Court of Luanda dated [December] 2013.

    ·A copy of a translated letter from the Luanda Military Region Attorney's Office dated [January] 2014.

    ·A copy of translated Marching Orders from the [police force department] dated [January] 2014.

    ·A copy of a translated letter from the Provincial Department of Crime Investigation (Angola) dated [September] 2014.

    ·A copy of a translated letter from the Provincial Department of Crime Investigation (Angola) dated [September] 2014.

    ·A copy of a letter from a registered clinical psychologist in relation to the applicant dated 26 June 2020.

23. On 14 March 2023 the delegate sent the applicant a letter pursuant to s 56 of the Act seeking clarification as to how, despite her extensive injuries after allegedly being kidnapped and mistreated in Angola in mid-2018, she was able to travel to [Country 3] a short period of time later.  In response the applicant provided to the Department a statutory declaration dated 17 April 2023, clarifying as follows:

    ·She was kidnapped in 2017 (not 2018 as incorrectly stated in the protection visa application).

    ·She was forced into a car by unknown men and taken to an area she had not seen before where [Mr K] ordered two men to rape her in front of him. 

    ·A third man who had spoken to her in her native tongue ([Language 1]) helped her escape.

    ·She drove home from the place where she was held captive.

24. In the April 2023 statutory declaration, the applicant also provided details about [Mr K’s] arrest, detention and release and subsequent complaints he lodged against her with police after his release.  Specifically, he lodged a complaint through a local police station in January 2014 alleging that she had stolen his daughter and another complaint in July 2014 alleging that she had made false allegations against him.  She clarified [Mr K] was kept in prison for eight months (not seven), and on release when he saw her (noting they lived in the same neighbourhood) he would often threaten her and her children.  In addition, she states one day a security guard attached to a medical centre close to her house told her [Mr K] had offered him money to kill her.

25. The applicant also states in August 2018, a week before she left Angola, she reported her kidnapping to the police.  They told her they could not do anything.

1. At her interview with the delegate on 30 June 2023 the applicant said she received help completing her application form in [Language 1], and there may have been translation issues.  She clarified further that her ribs were not broken when she was abducted, as originally claimed.

2. A written submission from the applicant’s representative was provided to the Department after the interview, dated 27 July 2023, as well as a copy of a letter from a clinical psychologist [dated] 7 July 2023.

3. The delegate accepted the applicant was a police officer in Angola who had cared for [Ms L], a young girl in their neighbourhood, for around three months in 2013.  The delegate also accepted that on discovering [Ms L] had been sexually abused by her father – [Mr K] – the applicant reported him to the police, and that he was arrested and released eight months later without charge, likely due to bribery. 

4. The delegate did not, however, accept the applicant’s claims to have been kidnapped and raped by men linked to [Mr K] several years later (in 2017) given several concerns with her evidence in this respect.  The delegate therefore concluded the applicant was not of ongoing adverse interest to [Mr K] and her fears of being seriously harmed by him or others on return (including more broadly as a woman with mental health issues) was not well founded.  The delegate refused to grant the applicant a protection visa on 7 August 2023.

5. On review, the representative provided to the Tribunal a written submission dated 26 March 2024, a statutory declaration from the applicant dated 22 March 2024, and the following supporting documents:

   ·A copy of reports from clinical psychologist [named] dated 7 July 2023 and 15 November 2023.

   ·A translated statement from [Ms L’s mother], dated 1 August 2023.

   • Copies of untranslated letters purportedly sent to the applicant at her work, requesting her to attend the police station.

6. In her statutory declaration, the applicant advised of some incorrect information given in her previous statutory declaration provided to the Department: in particular regarding the names of the police officers in charge of investigating [Ms L]’s case, and the complaints lodged against her by [Mr K] in the past in Angola.  She clarified that:

   a.‘[Mr M]’ was the name of the police officer in charge of the investigation into [Ms L]’s sexual abuse.

   b.‘[Mr P]’ was the name of the police officer in charge of the second investigation initiated against her by [Mr K].

   c.She believes [Mr K] paid bribes to both [Mr M] and [Mr P].

   d.She received verbally abusive telephone calls from [Mr M] during this period, who accused her of providing incorrect information to the police (about [Mr K]).

7. The applicant also provided an update about her and her children’s current circumstances advising, among other things, that her son [Son 3] had returned to Angola from [Country 2] where he is undertaking drug and alcohol rehabilitation.  She adds that he may be schizophrenic.

8. In her oral evidence to the Tribunal the applicant detailed her background including family composition and work history, which the Tribunal accepts, as set out earlier.  She also explained the reasons she left Angola in 2018 and fears upon returning now, centred around her problems with [Mr K], summarised as follows.

9. The applicant told the Tribunal that in January 2013 a then [Age]-year-old girl ([Ms L]) who lived with her father ([Mr K]) in their neighbourhood came to live with her, her children and mother in their house in Luanda.  [Mr K] had agreed to this arrangement suggested to him by the applicant after she saw [Ms L] on the street one day being hit by another child. 

10. Around two months later and after noticing some odd behaviour, the applicant spoke to [Ms L] who said her father used to touch her inappropriately.  There were rumours in the neighbourhood that that was the case.  One day in April that year whilst the applicant was at work, [Mr K] took [Ms L] to his house: she later told the applicant’s son ([the second son]) that he had abused her.  A few days later the applicant took [Ms L] to a maternity hospital near her house, dressed in her police uniform, and asked that she be examined.  The staff were reluctant to do so, in case they would have to testify in court at a later date and said there were no doctors available.  Finally, a nurse agreed to examine [Ms L] but would not write anything down.  On examination it was clear [Ms L] had been raped.  The applicant took photographs of [Ms L]’s injuries on her phone, which she showed to police at the local police station immediately after leaving the hospital.  She then accompanied police in a patrol car to [Mr K’s] house where he was arrested and taken to a police station.

11. On return home many neighbours came to talk to the applicant.  This included one of [Ms L]’s cousins who told her if they ever tried to approach [Ms L] in the past, [Mr K] would threaten them with a pistol.  The cousin said [Ms L]’s mother lived in another province. The applicant asked her to send a message to come to them, which she did three days later.  [Ms L]’s mother told the applicant she had run away from [Mr K] because he was also abusing her eldest daughter (his stepdaughter).  [Ms L]’s mother then took [Ms L] to live with her.

12. Around three days after [Mr K’s] arrest the applicant received a telephone call from the officer in charge of the case, [Ms L].  He screamed at the applicant, asking if she was sure about the allegations.  After reporting this to her supervisor, the applicant told [Mr M] he would have to go through the proper channels if he wanted the applicant’s cooperation in the matter, which he did eventually.  Sometime later the applicant (and her [second son]) gave a statement to [Mr M] about what happened.  The applicant also showed him the photographs from when [Ms L] was examined at the maternity hospital.  [Ms L]’s mother also gave a statement, in which she described the abuse her eldest daughter had received from [Mr K] as well. 

13. The applicant said around this time [Ms L] was subject to a rape test kit, which was sent to the police laboratory by [Mr M]. 

14. Around two weeks later the applicant heard (via a friend who had overhead the owner of [a business], who is a relative of [Mr K], tell someone) that [Mr K] was going to be released from prison after paying someone USD4,000.  She then wrote a letter to the Director of investigations for Angola police about the matter.  When visiting the municipal command centre to have the letter certified the applicant discovered [Mr K] was still being held there, which was against protocol.  That is, normally after statements have been taken and a case opened a suspect only stays at the municipal command centre for 48 hours before being transferred to the provincial command centre: yet [Mr K] at that time had been there for 14 days.  She suspects he paid money to stop his transfer whilst some corrupt officers were trying to figure out a way to get him released. 

15. The officer helping the applicant with her letter, who was [Mr M]’s superior, spoke to another officer and told him to arrange for [Mr K] to be moved.  The next day he was transferred immediately to prison, which the applicant says happens in serious cases.

16. The applicant said around eight months later, at the end of 2013, she saw [Mr K] had returned to their neighbourhood, released from prison without any charges.  She found out [Ms L]’s rape test results had been negative, which she suspects was incorrect.  Often when [Mr K] saw her or her children he harassed and threatened them.  She told some colleagues at work and they suggested she think about moving.  She did not, however, noting she had paid rent a year in advance, her children attended school nearby, and she did not believe she had done anything wrong. 

17. Around this time the applicant said a security guard at a medical centre near her house warned her to be careful as [Mr K] had approached him offering him money to kill the applicant (which he refused).  The applicant asked the security guard to make a statement to the police, however, he did not want to get involved. 

18. The applicant said [Mr K] then made two complaints against her to the police, as follows:

    a.The first, made in early 2014, in which [Mr K] alleged she had kidnapped [Ms L]. However, following a preliminary [investigation] (in which the investigator talked to [Ms L] and her mother, among others), the police were satisfied there was no case. 

    b.The second, made in July 2014, alleged the applicant had made false allegations against [Mr K].  She received a telephone call from the investigator from municipal command assigned to the matter, [Mr P], who screamed at her, blaming her for sending someone to jail due to the false accusations made by her.  She was told to visit his office to make a statement.  However, on arrival the person at reception told the applicant [Mr P] was not in charge of that particular department and directed her to speak to a police officer called [Ms Q].  The applicant showed [Ms Q] the letter from [Mr P] requesting she attend his office and give a statement.  [Ms Q] said she knew nothing about the matter and called [Mr P] to her office, who on arrival, feigned surprise.  The applicant explained the situation and showed the photographs on her phone showing [Ms L]’s injuries.  [Ms Q] then indicated she would arrange to take evidence from her (and [Ms L]’s mother) through the proper channels.  In September that year the applicant and [Ms L]’s mother returned to speak to [Mr Q] who also spoke to [Mr K] and [Mr P] about the matter.  After hearing their evidence, [Ms Q] expressed her surprise that [Mr K] was free and dismissed the allegations he had made against the applicant.  She also told [Mr K] to leave the applicant alone and warned if he did not he would be arrested immediately.

19. The applicant said after being warned by [Ms Q], [Mr K’s] threats and harassment towards her and her family stopped.  She mostly forgot about the matter until 15 June 2017 when she was kidnapped whilst undertaking a 24-hour police shift (which took place monthly) by masked men. 

20. The applicant explains she was driving back to work from a break at home at around 1.45am when a car stopped in front of her, two masked men got out (with the driver remaining in the car) and forced her into the back of their car, with a bag over her head.  They drove for around 55 minutes before arriving at a remote, forested area.  Two days later [Mr K] showed up.  He spat at the applicant and told two of the men to rape her in front of him, which they did.  One of the men kicked her in the back which caused the applicant to scream in her mother’s language, [Language 2] (mistakenly identified as [Language 1] in her statutory declaration).  Sometime later the applicant said one of her captors – who also spoke [Language 2] – returned with her phone (which he had taken from her car, which had been driven by another man and parked nearby) and asked what she had done to [Mr K].  The applicant explained what [Mr K] had done to his daughter and showed him the incriminating photographs on her phone.  Sometime later, whilst the others were asleep, the same man helped her escape, taking her through the bush to where her car was located.  He told the applicant they had orders to kill her and that if she told police about what happened he would do it.  He also asked for her phone number and rang her phone to see if it was correct. He used to ring her on occasion thereafter. 

21. The applicant then drove herself home, after recognising the main road.  At home she packed a suitcase and went and stayed with a friend in another neighbourhood.  She rang a family doctor telling him she had fallen and hurt her back who sent her a prescription for pain killers and cream over the phone.  At that time [Son 3] was staying with his father in Lunda, and [Daughter 1] with the applicant’s sister-in-law in Luanda.

22. When she returned to work a week or so later the applicant explained her truancy by claiming to have fallen and sick.  She did not tell the police at that time what had happened to her.  She did tell [Mr D] who was scared for her (and their children) but they had limited options given his financial situation was not that good.  She then organised for the children to go to [Country 3]: she went with [Daughter 1] in September 2017 and got her settled into student accommodation. [Son 3] went to [Country 3] from Lunda where he was staying with his father. 

23. The applicant said after this incident [Mr K] never said anything further to her when he saw her in their neighbourhood.  She noted he looked very surprised the first time he saw her after she returned home after being kidnapped.

24. The applicant told the Tribunal [Mr D] was attacked by someone wielding a wooden stick at a bus stop on 19 June 2018 in Luanda.  He was visiting from Lunda at the time, needing to be in the capital to undertake treatment for complications arising from having [physical conditions].  He was taken to hospital unconscious and awoke a few days later.  His father then decided to take him to [Country 1] where he died shortly thereafter. 

25. The applicant said she never found out who attacked [Mr D] or why, but noted after her kidnapping she noticed she was followed at times.  She reported the attack against [Mr D] at a police station near her house.  The police there asked her several questions and she told them about being followed and that prior to that there had been an attempt on her life.  They asked why she did not lodge a complaint at that time and said because it was in the past they would not investigate.  The police nonetheless said they would try to investigate the assault against [Mr D], however when she checked with them sometime later they said there was no evidence or witnesses.

26. The applicant was asked about the circumstances of her niece’s death.  She explained she was stabbed and killed at a bus stop in Luanda one day (she could not recall the date but said it took place in April or May 2017, before [Mr D] died.  There were no witnesses and the case was not properly investigated.  The applicant suspects [Mr K] had something to do with it because he said he could do something to her, her children or her family.

27. The applicant told the Tribunal she has heard from a former neighbour in Luanda that [Mr K] has left his house, and they do not know where he lives presently.  She noted he was born in [Country 5] but spent many years in Angola.  She said he often wore military clothing and was known to have weapons. 

28. When asked who she is afraid of if she returns to Angola now, the applicant said she is afraid because she is a woman, and women are not seen as worthy in her country.  She was kidnapped and raped and the police did not do anything, or in relation to the rape of [Ms L] by her father.  She was very traumatised by what happened to her.  She fears not only repercussions from [Mr K] on return, but also [Mr P] and [Mr M] because she reported them to their superiors and they were exposed as corrupt.  Both are in higher positions than she was in the police and have been in the police for a long time, which may become a problem if she returns to work as a police officer.

29. After the hearing the representative provided a written submission to the Tribunal dated 15 May 2024.  In it she clarified the context in which the applicant purportedly told the police about being kidnapped in Angola, that is, when she went to the police in 2018 to report the attack on her husband ([Mr D]).  At that time, she told the police she thought [Mr K] was involved in the attack against [Mr D] and explained what had happened to her in the past, including being kidnapped (in mid-2017).  As she had not reported the kidnapping at the time it occurred, the police told her they could not investigate it.  Nonetheless, they opened an investigation into the attack against [Mr D].  The applicant instructs that when she answered ‘no’ at hearing when asked whether she had reported being kidnapped and raped to the police, she meant she did not report it right after it happened or as a separate incident.

30. In her submission the representative also addresses a potential issue in this case about whether the applicant has a right to enter and reside in a safe third country based on Angola’s membership of the Economic Community of Central African States (ECCAS) and the Southern African Development Community (SADC), discussed at hearing and further below. 

    Findings about the applicant’s past experiences and profile in Angola

31. The Tribunal has considered the applicant’s claims to have experienced threats and harm at the hands of a neighbour in Angola after she reported him to the police for sexually abusing his daughter. 

32. It accepts the applicant’s claims to have reported a neighbour ([Mr K]) to the police in April 2013 for sexually abusing his daughter ([Ms L]) who had been in her care for the preceding three months.  It accepts this resulted in his arrest, and eight months’ detention before he was released without trial or charge, possibly due to him paying corrupt police and/or others.  Further, the Tribunal accepts [Mr K] threatened the applicant and her family members on several occasions after his release and lodged two complaints with the police – in early 2014 and mid 2014 – against the applicant, both of which were ultimately dismissed.  The Tribunal accepts his threats included: verbally abusing her when she walked past his house after his release; pushing her against a wall on one occasion and threatening her; and hearing via a local security guard that [Mr K] had offered him money to kill the applicant. 

33. The Tribunal accepts more broadly that [Mr K] was known in the applicant’s neighbourhood as someone who was violent and threatening and who possessed weapons.  He had threatened [Ms L]’s relatives with a gun if they asked questions about [Ms L] or tried to protect her.  It also accepts that [Ms L]’s mother alleged the reason she ran away from [Mr K] was because he had sexually abused her eldest daughter, as detailed in a letter she provided to the Tribunal. 

34. The applicant provided translated letters pertaining to the case against [Mr K] and his complaints made against her to the Department in support of the protection visa application, as noted earlier. 

35. The Tribunal found the applicant’s oral evidence about these and related matters detailed, context specific and generally consistent with her earlier written and oral evidence to the Department, with some exceptions.  For example, she confused the names of the police officers who investigated [Mr K] ([Mr M]) and the complaints [Mr K] lodged against her ([Mr P]).  However, once she became aware of the mistake she sought to clarify this in writing, as noted.  The Tribunal also notes inconsistencies with some dates: for example, in the protection visa application form she states [Mr D] was assaulted in May 2018, however, before the Tribunal she states this occurred on 19 June 2018. It is submitted some of these events took place over 10 years ago and were very traumatic, which may have affected the applicant’s memory. 

36. Given the passage of time since the events occurred, having to retell them multiple times, and sometimes in ways that can trigger traumatic memories, with an interpreter, the Tribunal does not find it surprising that the applicant at times confused her evidence in these ways.  She has otherwise been generally consistent and detailed. 

37. The Tribunal notes the delegate also accepted her evidence in these respects.

38. The Tribunal accepts both [Mr M] and [Mr P] – who were the applicant’s superiors in the Angolan police force – verbally abused the applicant over the phone when investigating [Mr K], and his complaints against the applicant.  In [Mr P’s] case the Tribunal accepts he did not have the authority to investigate the complaint, which was ultimately decided by another police officer ([Ms Q]).  It appears both [Mr M] and [Mr P], at least initially, tried to circumvent the proper procedure for investigating such matters, including allowing [Mr K] to remain in a cell for 14 days instead of only 48 hours as is protocol before being transferred.  The Tribunal accepts the applicant had to approach other members of the Angolan police force – superior to [Mr M] and [Mr P] – in order to have the matters progressed officially, without undue interference. This included lodging complaints about them with the director of the criminal investigation department, as shown in the letters provided.

1. The applicant claimed at the protection visa stage the deaths of her niece (in 2017) and husband [Mr D] (in 2018) were attributable to [Mr K] or someone linked to him, given he had made threats against her and her family members.  As noted in her protection visa application, the applicant claims she received warnings along the lines that this was just the beginning after these deaths. However, before the Tribunal she made no mention of these specific messages and indicated she is unsure why her niece and [Mr D] were killed, but speculated [Mr K] may have been responsible because he had more generally threatened to harm her and her family members. 

2. The Tribunal accepts the applicant’s niece was stabbed whilst waiting for a bus in around May 2017 and died, and her husband ([Mr D]) was hit over the head with a stick also whilst waiting for a bus, in June 2018, and died a few days later.  Both of the attacks occurred in Luanda.  It does not accept [Mr K] or his associates were responsible given the applicant’s vague and largely speculative evidence in this regard.  The motivations for the attacks remain unclear.  The Tribunal accepts the attacks were reported to the police who endeavoured to investigate but that no perpetrators were identified. 

3. The Tribunal notes in the application form the applicant claimed [Mr K] arranged to have her [second son] arrested in December 2013, and that her other son, [Son 3], was stabbed in [Country 3]. On this latter point the applicant made no further mention that [Son 3] had been stabbed, including at the Tribunal hearings, and therefore the Tribunal does not accept that occurred as claimed in the application form.  It is unclear why it was included and may have been an interpreting mistake.

4. With respect to [the second son]’s arrest in Angola (before he left to live with his father in Australia when he was aged [Age]), at hearing the applicant explained that one night in around 2013 or 2014, both of her sons ([the second son] and [Son 3]) had broken into a school, where they were found by a security guard and taken to the police station.  The police called the applicant and she told them to keep them there overnight, to teach them a lesson.  They released [Son 3] – who slept in one of the police officers’ offices given he was only [Age] – the next morning, however, due to a misunderstanding, [the second son] was transported to regional headquarters.  There he came across [Mr M] who recognised him from the case against [Mr K].  [Mr M] wrote a report that [the second son] had been caught stealing, which was not true.  The applicant visited him, asked to see his file, and when she pointed out there was no proof [the second son] had stolen anything, they released him five days after he had first been detained. (The applicant noted she has his release document in Portuguese.)  Shortly after, they made arrangements for [the second son] to leave Angola, for Australia with his father’s support, as noted. 

5. The Tribunal accepts the applicant’s evidence about [the second son] in this regard. It accepts he came across [Mr M] by chance at police regional headquarters a day after he had been detained overnight at their local police station for breaking into a school. It accepts [Mr M] made a false report about [the second son] stealing something and he was released five days later with no charge.  It is unclear to the Tribunal whether [Mr M] deliberately did this as some form of revenge against [the second son] (and the applicant) who was a witness in the case against [Mr K], as the applicant suspects. Nonetheless, given the Tribunal accepts [Mr M] had verbally abused the applicant about the case in the past, and attempted to circumvent the official channels to investigate the matter, at least initially, the Tribunal considers it possible.

6. The Tribunal has also considered the applicant’s claims to have been kidnapped and raped by men linked to [Mr K] – purportedly at his behest – in June 2017.  As noted, the delegate did not accept this aspect of the applicant’s claims, finding her oral evidence at interview at times implausible, incoherent and conflicting.  For instance, the delegate found it implausible that a man helped her escape after he saw photographic evidence of child abuse on her phone, which she kept on her person whilst tied up, and that he guided her past some fields and onto a main road where her car was parked.  The delegate also questioned how the applicant was able to drive herself home if her location was unknown to her, at night, and given her injuries.

7. In her statutory declaration provided to the Tribunal, the applicant states, among other things, that it is hard to talk about what happened to her, and to think about the possibility of having to return to Angola.  Some memories make her really upset and she is starting to forget some details.  She notes her psychologist says that trauma has an impact on memory and recalling details, and that may be why this is happening to her. 

8. The representative in her submission has emphasised the imperfections of memory over time, the variable nature of memory, and the impact of trauma on memory processing.

9. In her written and oral evidence to the Tribunal the applicant has provided, to some degree, further explanations about some of the matters that bothered the delegate with respect to her alleged kidnapping.  For example, she said even though she was scared and weak she managed to drive home, in order to survive.  Although she did not know where she was in the bushes, she recognised the main road when she saw it because it was the same road she had driven many times in the past to see her husband, [Mr D], in Lunda (from Luanda).  The person who helped her escape took her through the bush back to the main road, walked with her and when close to the main road explained how to get her car, then left her. 

10. The applicant explained at hearing that when she was first kidnapped she was placed in a car driven by one of her captors, and another of her captors drove her car, leaving it near the main road where she ran to when she escaped (with the help of the captor who spoke her mother’s native language).

11. The Tribunal considers these further explanations, about a traumatic event in relation to which there can be difficulties recollecting specifics, plausible. 

12. The Tribunal notes at hearing the applicant claimed she showed photographs of [Ms L]’s injuries contained on her phone to one of her captors to show that [Mr K] had abused his daughter.  However, earlier she had told the Tribunal her phone (which contained those photos) had broken around 2015.  When asked about this discrepancy the applicant said she kept the SIM.  Although a concern, given the otherwise strong aspects of this case for reasons above and below, the Tribunal is willing to give the applicant the benefit of the doubt and accepts her explanation in this respect.

13. The Tribunal also notes the applicant’s changing evidence about the language one of her captors who helped her escape purportedly spoke: that is, identifying it as [Language 1] at the interview with the delegate, and in her April 2023 statutory declaration provided to the Department, whereas before the Tribunal she clarified it was [Language 2].  This inconsistency may be explained however, by interpreting errors. 

14. The Tribunal does not consider these concerns in isolation or combined particularly significant and notes the applicant’s evidence about this incident has been otherwise reasonably detailed and generally consistent.  The Tribunal has accepted [Mr K] had reason to seek revenge against the applicant and notes he had earlier attempted to recruit others to do so in the form of a local security guard.    

15. The Tribunal notes a further concern the delegate had with this aspect of the applicant’s claims related to her return home, and to work, and to where she encountered [Mr K] again until she left Angola in 2018, despite being kidnapped (and seriously harmed) in 2017.  The delegate also expected that the applicant, as a police officer, would seek help from the police given the significance and seriousness of her ordeal.

16. In the Tribunal’s view, the fact the applicant stayed living in the same neighbourhood as [Mr K] for over a year, knowing he had directed men to abduct, rape and kill her, does also raise some doubts about her claims in this respect.  However, she has consistently claimed to have been making efforts to get herself and her children somewhere safe, evidenced by trips to [Country 3], and she was looking into options to leave, which can take time (and money).  She did leave as soon as she was able to, financially and otherwise. 

17. Taking into account these considerations, the Tribunal accepts that in 2017, the applicant was abducted, raped and threatened by men linked to [Mr K], as punishment for her reporting him to the police several years earlier.  It accepts one of her captors helped her escape, and that he contacted her from time to time thereafter.  It accepts he told the applicant they were instructed to kill her and threatened to do as such if she told anyone.

18. The Tribunal accepts further that the applicant did not report this incident to the police initially after it occurred.  However, it accepts she did around a year later when reporting to the police a separate assault against her husband, [Mr D], and her belief that men linked to [Mr K] may have been responsible.  It accepts they did not investigate the kidnapping incident, as claimed.

    Are the applicant’s fears of persecution if she is returned to Angola well founded?

19. Given these findings about the applicant’s past experiences, the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Angola from [Mr K] or his associates or anyone else.

20. It is submitted the applicant faces a real chance of serious harm on return to Angola from [Mr K] and/or his associates, corrupt police (including [Mr M] whom she lodged a complaint against while in Angola, alleging he accepted a bribe from [Mr K]), men in the community and male members of the authorities due to her membership of the following particular social groups:

    ·Women in Angola; and/or

    ·Women who are perceived to have transgressed social norms in Angola; and/or

    ·Women with a mental illness in Angola; and/or

    ·A survivor of sexual abuse in Angola.

21. In her submission to the Tribunal, the representative argues that the applicant belongs to a particular social group of women (and other configurations as listed above) and that she is likely to face serious harm in future due to her membership of those particular social groups.  That is because, she submits, it is well known that key drivers of violence against women  and attitudes to gender are about structural gender relations of power between men and women, and the product of historically unequal power relations between men and women.  In the applicant’s case she reported family violence against a girl to the police, in contravention of social expectations in Angola, and as a result herself was a victim of sexual violence.  She fears harm on return from [Mr K] and his associates as a woman and is afraid they will harm her because they are aware the state will not protect her, it is submitted.  

22. Having considered the circumstances of this case, including the motivations for past threats and harm directed against the applicant, the Tribunal is of the view the main reason that [Mr K] (and/or his associates) may seek to harm the applicant on return is out of further revenge relating to her disclosure to the police that he had sexually abused his daughter in the past (and was imprisoned for eight months, even if not convicted), not an essential and significant refugee reason related to her race, religion, nationality, membership of a particular social group and/or her political opinion as required by s 5J(4)(a).  Gender is a relevant consideration in terms of her vulnerability to harm and limits of state protection, but not the essential and significant reason [Mr K] may seek to harm her in the future.

23. Additionally, the Tribunal does not accept [Mr K] would necessarily have the means or capability to track down the applicant in other parts of Angola, if she lived elsewhere, away from Luanda.  Accordingly, the Tribunal is not satisfied the real chance of persecution from [Mr K] and/or his associates relates to all areas of Angola in order to satisfy the meaning of a well-founded fear of persecution: s 5J(1)(c). 

24. Consequently, the Tribunal concludes that the applicant does not meet the requirements of s 36(2)(a) of the Act.

    Complementary protection

25. The Tribunal has considered whether, if the applicant were to return to Angola, there is a real risk she will suffer significant harm from [Mr K] and/or his associates for the reasons advanced. The Tribunal notes in this regard that the threshold of the ‘real risk’ element in the complementary protection criterion in s 36(2)(aa) is the same as that for the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.

26. In this case, the Tribunal finds the applicant is a national of Angola and therefore finds that Angola is the ‘receiving country’ for the purposes of s 5(1).

27. It is submitted there is a real risk of the applicant suffering significant harm (of the type defined) if removed from Australia to Angola in the form of: arbitrary deprivation of life; torture; cruel and inhuman treatment or punishment; and/or degrading treatment or punishment.  It is likely she would experience further instances of sexual harassment or sexual assault, and the threat of gender-based violence (GBV), it is submitted.  Even the threat of such harm would amount to significant harm considering her particular vulnerabilities due to her mental health and past experiences.

28. The representative submits that the applicant’s return to Luanda after a long time away may cause initial general gossip and suspicion that would draw attention to her among the local community, and therefore there is a risk [Mr K] will find out she is back. It is also submitted that she will come to the attention of the corrupt police officers associated with [Mr K], and she made a complaint against [Mr M] to a person from the criminal investigation department in Angola because she believes [Mr K] paid him a bribe.

29. In her submission to the Tribunal, the representative refers to country information from a variety of sources about women in Angola being vulnerable to attacks and harassment, and women with a mental illness being subject to stigma and discrimination as well as difficulties accessing appropriate mental health treatment.  This may affect the applicant’s ability to gain employment and subsist on return, she contends.  Country information shows women in Angola are at risk of significant harm because of their gender, including sexual abuse and violence by the Angolan police force and/or security forces and men in the community. The applicant is at higher risk because of her previous experiences of harm including sexual assault and her mental health condition. Her main points are that:

    ·The applicant faces a high risk of sexual violence and GBV if returned to Angola where violence against women is widespread and patriarchal norms deeply entrenched in society (with reference to relevant country information). Sexual assault goes widely unreported and unprosecuted.

    ·Widespread gender inequalities persist in Angola which generally performs poorly on indicia of women’s welfare, safety and liberation.  GBV is prevalent and above global norms: Angola ranks 27 out of 168 in the Most Dangerous Countries for Women in the World index.

    ·Sexual harassment of women is common and not illegal.

    ·Criminals target women driving or walking by themselves.[1]

    ·There are reports about women and girls being raped and subjected to other abuses during a mass expulsion of migrant workers from Angola to the DRC recently.  According to Human Rights Watch, the most serious abuse took place in detention facilities under the supervision of Angola’s Interior Ministry and committed by a broad range of security forces including agents of the Rapid Intervention Police (PIR), border police (GPF), prison guards as well as the Angolan Armed Forces (FAA) and Immigration officials (SME). According to victims’ testimony there was a high degree of complicity among different Angolan security services involved in the expulsion.

    [1] Overseas Security Advisory Council (OSAC), Angola Country Security Report, 12 September 2023

30. The Tribunal has taken into account these submissions, the country information contained within them and the applicant’s own evidence to determine if she faces a real risk of significant harm if removed from Australia to Angola. In doing so, it has also taken into account country information relevant to her claims and her potential risk profile on return, as follows. 

31. Country information indicates that violence against women is a significant problem in Angola.  The United States Department of State (USDOS) report on human rights practices in Angola for 2023 identifies ‘extensive gender-based violence, including domestic or intimate partner violence, sexual violence’ as significant human rights issues.  Whilst rape including spousal rape and intimate partner rape was illegal, the government did not enforce the law effectively.  The report also notes limited investigative resources, poor forensic capabilities and an ineffective judicial system prevented prosecution of most cases.  In addition, it notes that many cases were not reported to police.[2]

    [2] U.S Department of State, 2023 Country Report on Human Rights Practices: Angola, April 22, 2024

32. In the 2024 Bertelsmann Stiftung Transformation Index (BTI) Angola Country Report, it is stated that:

    Angola has legal provisions in place to promote gender equality and protest against discrimination based on sexual orientation, identity or religious beliefs.  However, issues like domestic violence persist.  The law does not specify legal sanctions for domestic violence, and police often hesitate to register complaints.  They may attempt to convince victims not to press charges but rather to resolve the issues through discussion.  In cases where charges are filed, the law mandates a family reconciliation, and the police may require this as a prerequisite for further investigation and prosecution.[3] 

    [3] Bertelsmann Stiftung Transformation Index (BTI) Angola Country Report 2024, p 22

33. The Overseas Security Advisory Council (OSAC) crime and safety report published in November 2023 notes that sexual assault goes widely unreported and unprosecuted; whilst rape including spousal rape and intimate partner rape is illegal and punishable up to 12 years’ imprisonment if convicted, the government does not enforce this law effectively; and whilst under the constitution and law women enjoy the same rights and legal status as men, the government does not enforce the law effectively, and societal discrimination against women remains a problem, particularly in rural areas.[4]

    [4] Overseas Security Advisory Council (OSAC), Angola Country Security Report, 9 November 2023

34. In the applicant’s case the Tribunal acknowledges the passage of time since she was last harmed by [Mr K] (in mid-2017) of over seven years, as well as the applicant’s evidence that she has heard [Mr K] has left her former neighbourhood.  A question then arises as to whether or not the applicant may come to the attention of [Mr K], or his associates on return, and if so whether that would result in a real risk of significant harm.  As noted, it is submitted her return is likely to generate some gossip in her local community, which may alert [Mr K] or his associates to this fact.  The Tribunal agrees that although not definite, this is possible given the presence of community networks and connections, even in large cities such as Luanda.  The Tribunal also notes that if the applicant returns to Angola and rejoins the police force in some capacity, this will become known, including to [Mr M] and [Mr P], who are police members who attempted to thwart the case against [Mr K] in the past, and to influence the complaints made by [Mr K] against the applicant. 

1. Given such considerations, the Tribunal considers it is not far-fetched that the applicant’s return to Luanda may become known within her neighbourhood, and the wider community.  If so, and [Mr K] finds out, the Tribunal is satisfied she faces a real risk of significant harm at his hands, despite the passage of time.  It notes the nature and type of punishment he orchestrated against her in mid-2017 was particularly brutal and designed to humiliate and punish her.  More broadly, [Mr K] is known to be violent, threatening and have access to weapons, including after his arrest.  He also managed to escape prosecution related to the sexual abuse against his daughter. 

2. The Tribunal also accepts the applicant would be returning to Angola as a single woman with two children in Angola who are still financially dependent on her, even though they are now over 18 years of age.  Her children have their own health and substance abuse problems, as noted earlier.  It also accepts on the basis of the medical evidence provided that the applicant has a history of poor mental health. The Tribunal has taken these factors into account when assessing the applicant’s risk of significant harm if returned to Angola.

100.   Given these considerations, combined with the above country information about violence against women being a significant problem in Angola, including sexual violence, the Tribunal is satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of removal of the applicant to Angola, there is a real risk she will suffer significant harm at the hands of her former neighbour, [Mr K], and/or his associates.  The Tribunal is satisfied that the harm involves severe physical or mental pain or suffering or both, which is intentionally inflicted on the applicant. The Tribunal is satisfied that the harm also involves an act that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is therefore satisfied that the treatment that the applicant will be subjected to amounts to cruel or inhuman treatment or punishment or degrading treatment or punishment, as defined in the Act.

101.   In reaching this conclusion the Tribunal has taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It accepts she was threatened, harassed and subject to physical violence including rape by multiple perpetrators in Angola in the past and accepts she is psychologically vulnerable due to these past experiences, including presenting with adjustment disorder and post-traumatic stress disorder (PTSD) symptoms, as indicated in the letters provided from her treating psychologist. She would be returning to the country where these events happened and where, more broadly, sexual and gender-based violence remain problems, as the above country information indicates. Taking these considerations into account, the Tribunal is satisfied any future harm or even threats of harm the applicant may experience could amount to significant harm as contemplated in the Act.

102.   Accordingly, the Tribunal finds there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Angola, there is a real risk she will suffer significant harm from [Mr K] and/or his associates.

103.   Given these findings the Tribunal has gone on to consider if any of the complementary protection exceptions apply, as follows. 

104.   First, the Tribunal has considered if the applicant could obtain from the Angolan authorities protection such that there would not be a real risk that she would suffer significant harm as referred to under s 36(2B)(b).  

105.   The Tribunal notes that in order to satisfy s 36(2B)(b) of the Act, court authority requires the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one: see MIAC v MZYYL.[5] The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection, there would still be a real risk of significant harm: ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61].

[5] (2012) 207 FCR 211 at [40]

106.   The Tribunal also notes that the Department’s Complementary Protection Guidelines relevantly state:

The fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm. Nevertheless, an individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place.[6]

[6] Department of Immigration and Border Protection, PAM3 ‘Complementary Protection Guidelines’, section 38 as re-issued 21 May 2015

107.   In her written submission to the Tribunal the representative argues the applicant would be denied protection because of her gender and mental health condition, and even if not, there does not exist a reasonably effective police force or impartial system of justice in all parts of Angola that she would be able to access.  The level of state protection available to her in her circumstances would not be sufficient to reduce the risk of significant harm to below a real one, it is submitted.

108.   Additionally, the representative refers to country information indicating that corruption in Angola is widespread, due to a lack of checks and balances, insufficient institutional capacity, a culture of impunity, and active and passive bribery.  She notes that whilst illicit enrichment and conflict of interest are criminalised in Angola, offences are rarely prosecuted. 

109.   The Tribunal has considered these submissions and relevant country information contained within them when determining the question of state protection in the applicant’s case.

110.   In this matter the harm that the applicant fears from [Mr K] and/or his associates is from non-state actors.  The applicant claims the Angolan authorities will not protect her from that harm as a woman, as women are not considered worthy, noting they did not provide her or [Ms L] adequate protection in the past. 

111.   The Tribunal accepts the applicant’s claims that she told police colleagues about ongoing harassment and threats from [Mr K] after he was released from prison, and they only advised her that she should consider moving.  It also accepts she told police at a local station that she had been kidnapped and harmed, around a year after it occurred, in the context of her husband, [Mr D]’s attack and they said it was too late to do anything.  The Tribunal also accepts the applicant’s claims about compromised and possibly corrupt police officers - [Mr M] and [Mr P] - involved in the case against [Mr K], and the complaints made by [Mr K] against her.

112.   Given these considerations, and on the basis of country information, in particular concerns about government corruption[7] and police taking gender-based violence cases less seriously (noted earlier) the Tribunal is not satisfied that the general measure of state protection in Angola is sufficient in the applicant’s case to remove the real risk of significant harm from non-state actors. The Tribunal finds that, for the purposes of s 36(2B)(b) of the Act, the applicant could not obtain from an authority in Angola protection such that there would not be a real risk that she will suffer significant harm.

[7] Bertelsmann Stiftung Transformation Index (BTI) Angola Country Report 2024, p 30.

113.   Second, the Tribunal has considered if it would be reasonable for the applicant to relocate to an area of Angola where there would not be a real risk that she will suffer significant harm as required by s 36(2B)(a).

114.   It is submitted the applicant is at risk of significant harm in all areas of Angola, and that due to her personal circumstances, it is not reasonable for her to relocate.  These circumstances relate specifically to her gender, status as a single woman/widower without male protection, past experiences of sexual assault and mental health issues.

115.   The Tribunal finds it is not reasonable given the applicant’s personal circumstances for her to relocate away from Luanda – her home area – to an area of Angola where there would not be a real risk of significant harm.  She would be doing so as a single woman without family support, and with two still (financially) dependent children with serious health and substance abuse issues.  In addition, she is someone with mental health issues including PTSD, as noted.  It also might be more difficult for the applicant to secure employment if she moved away from the capital.  In these circumstances, the Tribunal is not satisfied that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that she will suffer significant harm as required by s 36(2B)(a).

116.   Third, the Tribunal is satisfied the significant harm the applicant faces is one faced by the applicant personally and not faced by the population of the country generally, as required by s 36(2B)(c) of the Act.

117.   Therefore, the Tribunal finds that the applicant is not precluded by the operation of ss 36(2B)(a), (b) and (c) of the Act.

Third country protection: s 36(3)

118.   Given the Tribunal’s findings that the applicant is owed protection under the complementary protection provisions for the reasons above, the Tribunal has considered whether the applicant has not taken all possible steps to avail herself of a right to enter and reside in a third country pursuant to s 36(3) of the Act.

119.   Australian courts have held that the right referred to in s 36(3) must be an existing right and not a past or lapsed right, or a potential right or an expectancy.[8] The Full Federal Court has also provided guidance on the scope of a right to enter and reside, in SZTOX v MIBP [2015] FCAFC 77, confirming the right may lie in an executive act as well as legislation, such as a treaty, executive policy or other executive instrument. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 held 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: a 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.

[8] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001)

120.   As discussed at hearing, this issue has arisen in the applicant’s case because Angola is part of the SADC, and ECCAS.  Accordingly, the applicant may have ‘a right to enter and reside in’ other SADC or ECCAS member states, within the meaning of s 36(3). 

121.   In a post hearing written submission addressing this issue, the representative argued s 36(3) does not apply in the applicant’s case, despite Angola being a member of SADC and ECCAS, because of gaps between laws and policies and practices.  With respect to ECCAS procedures, the representative noted country information indicates the procedures have been implemented only to a limited extent in practice and free movement within the Central African region remains to be achieved.[9]  In addition, other ECCAS member states either require each other’s citizens to obtain a visa in advance or allow them to enter their territory visa free for a limited period of time and as a visitor.[10]  Such circumstance do not give rise to a right of the applicant to enter and reside in any other ECCAS member state, it is submitted.

[9] International Organization for Migration, ‘West and Central Africa: The Regional Migration Context’, International Organization for Migration, UN Migration, “See migration like water: An analysis of flow monitoring survey data on migration flows in and through West and Central Africa,” 6 April 2021.

[10] African Union Commission Visa Openness Index, ‘Africa Visa Openness Report 2023’

122.   With respect to SADC, the representative notes Article 5(2)(d) of the SADC Treaty of 1992 provides for the free movement of people within the region, and the protocol was introduced in 2005 to help facilitate this, which obliges member states to allow visa free entry, and permanent or temporary residence and a right to work in the territory of another state.  However, it has not been enlivened given the requisite two thirds of SADC member states have not yet ratified the protocol, she contends.

123.   The representative adds that despite the SADC potential for visa free travel and free movement under the Protocol, it is still subject to the member states’ own laws and policies on migration and is restricted to a maximum period of 90 days per year for bona fide visits.  Further requirements in the Protocol (Article 14) include that the visitor has to produce evidence of sufficient means to support themselves for the duration of the visa, which could be particularly onerous for some, and the majority are unable to satisfy visa extension requirements or application requirements for alternative visas/work permits for them to continue staying or to be able to work in the host countries[11], she submits. 

[11] Clayton Havvinei Vhumbunu, Toyin Cotties Adetiba, and Charity Mawire, ‘The Free movement of People in SADC: Reflecting on the Experiences, Dilemmas and Strategic Considerations’, African Journal of Political Science 11(1), 2023.

124.   The Tribunal has taken this submission (and the country information contained within it) into account when considering whether or not the applicant has a right to enter and reside in other SADC or ECCAS member states. 

125.   Country information indicates that the SADC regional economic community, which includes Angola as one of 16 member states, seeks to progressively eliminate barriers to movement of persons, goods, capital and services amongst its member states (among other things).[12] However, implementation of this treaty has also been slow, and the SADC protocol has not been ratified by a majority of members.  According to a 2023 report by the African Union on visa openness:

[12] SADC website, Southern African Development Community: Integration Milestones (sadc.int)

SADC has facilitated the movement of people as well, less by means of a regional agreement than by bilateral agreements that leave plenty of room for national sovereignty. At the country level, too, many countries that have not yet ratified the protocol have made significant strides towards visa openness. Some have introduced innovative ways to ease travel and entry.[13]

[13] Visa Openness Index, Africa Visa Openness Report 2023, African Union, p 43

126.   SADC’s implementation gaps and shortcomings were highlighted in a 2023 Strategic Review for Southern Africa article, which states as follows:

Whilst there is general policy consensus on the ideal need and desirability to allow the free movement of people in order to facilitate trade, labour circulation, and investments in the SADC, the empirical reality is that thirty (30) years since the formation of the SADC in April 1980, the region is facing serious challenges relating to the free movement of people, migration, and labour movement. SADC member states (especially those that are relatively stable economically, socially, and politically) have been confronted with serious feasibility challenges, complexities, risks, and dilemmas as they attempt to implement commitments made towards the free movement of people in the region, with political, security, social, economic, and strategic interests and considerations, as well as technical factors often cited as obstacles.[14]

[14] Strategic Review for Southern Africa, Vol 45, No 2, 2023

127.   According to some reports, nationalism and xenophobia have also had a role to play in restricting immigration and closing borders as a result of the pandemic.[15] 

[15] J Vearey, T de Gruchy and N Maple, ‘Global health (security), immigration governance and Covid 19 in Southern Africa: An evolving research agenda’, Journal of Migration and Health, Volume 2, 2021

128.   At hearing, when this issue was discussed, the applicant said whilst she can visit South Africa without a visa, she needs a proper visa to work or study there, which is similar for other SADC countries.  It would be very difficult for her to go to another country and start all over again, even if she was able to, she added.

129.   With respect to ECCAS, country information confirms (as submitted by the representative) that implementation of the ECCAS protocol for free movement (for ECCAS citizens) remains incomplete, and as a result free movement within the Central African region has still not been fully achieved.[16]

[16] International Organization for Migration, ‘West and Central Africa: The Regional Migration Context’; International Organization for Migration, UN Migration “See migration like water: An analysis of flow monitoring survey data on migration flows in and through West and Central Africa,” 6 April 2021, p 6.

130.   Given such country information about the shortcomings in implementing aspects of both protocols regarding the free movement of persons between member states, continued reliance on states’ own laws, policies and practices in some instances, and other challenges including regional insecurity, which reflects an uncertain right of freedom to move, the Tribunal is not satisfied that the applicant has a presently existing right, in the sense of a ‘liberty, permission or privilege lawfully given’ which has not been withdrawn[17] and which is an existing right,[18] rather than a potential right or expectancy, to enter and reside in one of the ECCAS or SADC states.

[17] MIMAC v SZRHU (2013) 215 FCR 35

[18] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001)

131.   The Tribunal finds therefore that the applicant is not precluded from protection by s 36(3) of the Act.

132.   Given these findings, the Tribunal has not gone on to consider other aspects of the applicant’s claims and submissions.

CONCLUSION

133. 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 complementary protection provisions. Therefore, the applicant satisfies the criterion set out in s 36(2)(aa).

DECISION

134. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa)of the Migration Act.

Nicole Burns
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…