1515353 (Refugee)

1515353 (Refugee) [2019] AATA 1593 (25 January 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1515353
COUNTRY OF REFERENCE:                  Rwanda
MEMBER:Justin Meyer
DATE:25 January 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 25 January 2019 at 10:25am
CATCHWORDS
REFUGEE – protection visa – Rwanda – race – Hutu – mixed ethnicity – imputed political opinion – anti-government – ties to the Democratic Forces for Liberation of Rwanda – particular social group – women in Rwanda – people with mental illness – failed asylum seekers – victim of sexual violence – family members killed – perceived association with genocide killers – revenge attacks – temporary residence in Democratic Republic of Congo – imprisonment of father – threats of killing – relocation in Africa – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 36, 65, 91R, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Rwanda, applied for the visas on 11 August 2014 and the delegate refused to grant the visas on 2 November 2015.
The applicants appeared before the Tribunal on 9 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant’s husband]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.
The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
Section 36(2)(a) provides that a criterion for a Protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The issue in this case is whether the applicants meets the refugee criterion, and if not, whether they are entitled to complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Protection claims in writing to the Department
The first applicant, [A1], is [age] years old and was born in Rwanda.
The second applicant, [her husband] (A2), who is [age] years old, was also born in Rwanda.
The parties’ children [A3] and [A4] are also Rwandan-born.
Valid Rwandan passports were supplied to the Department for all applicants.
The applicants claim to be citizens of Rwanda. They claim that they do not hold any other citizenship or have a current right to enter and reside in a third country. Applicant 1 claims she cannot reside in any other country as many Rwandans have been killed in South Africa, Mozambique, Uganda and Congo. Applicant 2 claims there is no African country that can be trusted for protection as recently many Rwandans have been killed in South Africa, Mozambique, Uganda and Congo. The applicants provided examples of those killed; persons forcibly returned from Uganda to Rwanda are facing prosecution, a former Rwandan Chief spy was killed in South Africa and the former Director General of the Development Bank of Rwanda (BRD) was killed in Mozambique.
The applicants’ written claims are on Department of Immigration and Border Protection (the Department) file [number] from folios 144 to 157 and from folios 158 to 167. The applicants attended a Protection visa (PV) interview teleconference, with the assistance of a Kinyarwanda interpreter, on 20 May 2015.
A1’s claims to the Department
·     A1 claims she was beaten and raped by one of the genocide killers in 1994 when she had tried to escape an attack on their home. A1 claims that after two days she was rescued by a woman who took care of her until she was able to find her family.
·     Although she needed medical care and she would go to the hospital sometimes, in 1995 they could not get any help, food, clothes or education because they were Hutus.
·     Her father was jailed and after returning to the family home [in] April 2004 he was beaten until he was unconscious, by soldiers as revenge because it was genocide commemoration week and he later died. A gun was held to her head to stop her screaming and she and her family members’ lives were threatened.
·     She suffered nightmares and was traumatised and she applied to become a member of the Genocide Survivors Association but she was rejected because she is Hutu and her father had been jailed. She never felt safe and she never trusted anyone because of her experiences.
·     She had difficulties when she wanted to marry her husband because he is Hutu and her husband decided to take her to stay with his [family] where she attended a doctor for treatment of her condition. Her husband’s family was removed from the Democratic Republic of Congo (DRC) by the Rwandan government by force and killed.
·     Two weeks after her husband (A2) came to Australia, in July 2013, two men came to her house on three occasions, a few days apart. They pretended to be friends of her husband and they told her that the government should have investigated her husband before giving him a scholarship to come to Australia. They asked for his address and phone number and she told them that she did not have it. When she told her husband he applied for a visa for them to come to Australia.
·     A1 was asked what would happen to her if she were to return to Rwanda. She responded that she might be persecuted because of the problem she had at the airport. A1 claims that after she got the visa to travel, at Kigali airport she was refused permission to board [in] December 2014 because she was told they could not board on a one way ticket and she was sent home.
·     On the next occasion, they were refused to board the plane, all of their documents were taken from them, and A1 and her two children were locked up in a room. A1 claims after four hours, two officers came and intimidated and beat her; called her a negative person; asked her the names of people who had killed and organised the genocide who lived overseas and accused her of working with them.
·     She explained to the officers the reason that she was travelling to Australia but they threatened that they would lock her up where no one could hear her and they would take her children away. They told her the only reason she was released was because her husband was overseas and it could cause them problems if they locked her up in jail or killed her. She was threatened that if she talked again that her husband would lose his job and his scholarship and because she was frightened, she begged them to forgive her and they let her go. After she told her husband, he spoke to the Immigration boarding agency in Australia who sent an email to Kigali airport and they were able to depart Rwanda [later in] December 2013.
·     She fears that, if she were to return to Rwanda, her life will become harder as she will be sad and she could hurt her family or herself.
·     The government cannot protect her because it is behind the disappearance and killing of people and they believe every Hutu is guilty of the genocide.
·     She cannot reside in any other country as many Rwandans have been killed in South Africa, Mozambique, Uganda and Congo.
·     She did not apply for a Protection visa sooner because she was recovering from her experiences in Rwanda, including the experience at Kigali airport before she came to Australia.
A2’s claims to the Department
·     A2 claims that after the genocide of 1994, he and his family had fled the country and stayed in a refugee camp in the Congo for almost two years until they were brought back to Rwanda by force. A2 claims [in] November 1997, while his parents were hidden in someone’s house, they were killed and although A2 and other members of his family tried to find out who had killed their parents they were always told that no one knew.
·     [In] May 1998, the Rwandan Patriotic Front (RPF) army came to their house and killed his [specified] relatives.
·     In December 2012, A2 was in a bar with a co-worker and a friend of his co-worker, who are Tutsis, when they started talking about their relatives fighting in Congo. His co-worker warned his friend about talking in front of A2 because he is Hutu but he would not stop talking because he was drunk. A few days later his colleague’s friend met him in town and told him that he was military and even though he worked for the government he should remember who he is and where he is from, and that he knew that A2’s parents were killed. After that day he stopped going to the bar because he no longer felt safe and he thought someone might follow him home or to his work.
·     In March 2013, he received a call from a private number telling him that they knew he was going to sell his parents’ home and after the money was transferred to his account, they called again and told him they wanted him to meet them in a bar in Kigali and when he did not meet them, they called again and threatened him, saying they had records against him and he had nowhere to hide or escape. A2 claims he left for Australia a few months later.
·     After he came to Australia, people came to his home and asked his wife how he got the scholarship and that they should have investigated him more before giving him the scholarship. A2 claims that being a Hutu from the Western Province, with DRC stamps in his passport, may result in him being called an enemy of the country.
·     He will be jailed or killed by the government or any people involved in the killing of his parents and his relatives if he were to return to Rwanda because many people have been disappearing since May 2014.
·     He and his family left Rwanda, because they are seeking protection for their lives as they believe their lives will be in danger if they return to Rwanda, particularly after the men came to their house which made them fearful to return to Rwanda.
·     The Rwandan government will not protect him as they are behind all of the killings and disappearance of people. The government is only willing to protect one group of people and that means he cannot be protected by this government. This is because they brought his family back by force from the DRC and they could not protect them from being killed, and they did not prosecute the murderers and no investigation was conducted and no one was arrested, and the same thing is happening now.
·     There is no African country that can be trusted for protection as recently many Rwandans have been killed in South Africa, Mozambique, Uganda and Congo. Examples of people killed were provided; persons forcibly returned from Uganda to Rwanda are facing prosecution; the former Rwandan Chief spy was killed in South Africa and the former Director General of BRD was killed in Mozambique.
·     He did not apply earlier for a Protection visa because he was waiting for his wife and daughters to leave Rwanda.
Pre-hearing submission
A1 and A2 both fear harm on the following grounds:
·     Imputed anti-government political opinion
·     Hutu ethnicity
·     Membership of a particular social group
·     Failed asylum Seekers
·     Failure to return to Rwanda having left on a Government sponsored visa.
In addition, A1 fears harm due to her membership of the following particular social groups:
· Females in Rwanda
· People with mental health illnesses.
There is a claimed imputed political opinion for A2, as follows:
Imputed anti-government political opinion
·     Upon completion of his [degree], A2 was expected to commence repayment of a portion of the scholarship and return to Rwanda. The Rwandan government, as financers and supporters of A2’s travel and study in Australia, were aware of his university completion [date]. The fact that A2 and his family have failed to return to Rwanda and no repayments have been made on the scholarship loan indicate that they have sought asylum in Australia.
·     The Rwandan government considers those that seek asylum abroad to be guilty of treason and enemies of the state. This is evident in the recent statements and warnings issued by the Rwandan government in relation to athletes currently in Australia who came for the Commonwealth Games. Based on the above, it is likely that the Rwandan government have imputed the applicants with an anti-government political opinion.
·     A2 has a history of travel to the DRC. As discussed in [35] to [37] of his 2018 Statutory Declaration, A2 fears that he will be suspected of having ties with the Democratic Forces for Liberation of Rwanda (FDLR), a Hutu rebel group operating in eastern DRC, due to his travel to DRC and his cousin’s membership of FDLR. Additionally, A2 is from the Western Province, a predominantly Hutu area where the majority of FDLR members originated. It is likely that A2’s failure to return to Rwanda reinforces the Rwandan government’s belief that the applicants are associated with the FDLR and hold an anti-government political opinion.
·     When A1 was attempting to leave Rwanda, she faced difficulties from the authorities, the details of which are outlined in [24]–[33] of her 2018 Statutory Declaration. Due to these problems she became upset and expressed to the Rwandan authorities at the airport that she faced significant problems because of the Rwandan government. Furthermore, the authorities accused her of travelling to Australia to work with people responsible for the Rwandan genocide and those planning to overthrow the Rwandan government. This reflects a belief of the Rwandan authorities that those who travel abroad are associated with, and are partaking in anti-government activities.
·     Therefore it is likely that due to their failure to return to Rwanda and prolonged absence in Australia, the applicants would be imputed with anti-government political opinion and would face significant harm from the authorities if they were forced to return.
Hutu ethnicity
·     Based on the applicants’ lived experiences, they fear that if they were to be returned to Rwanda they would face harassment, discrimination, imprisonment, possible disappearance and physical abuse due to their ethnicity as Hutus. The current Rwandan government is Tutsi and perpetuates the belief that Hutus are responsible for the genocide. As such, Hutus are subjected to ill-treatment and harm as reprisal for the genocide or due to perceived opposition to the current government on the basis of ethnicity.
·     As outlined in A1’s 2014 and 2018 Statutory Declarations, her mother was of Tutsi ethnicity while her father was of Hutu ethnicity. During the genocide of 1994 she was considered to be a Tutsi and was harmed by Hutus on this basis. However, in the post genocide period she has been considered to be a Hutu and was denied membership and support from the Genocide Survivors Association. Additionally, she experienced discrimination and harassment in her employment due to her ethnicity.
·     A2 as a Hutu has faced several issues due to his ethnicity which are outlined in his statutory declarations. Notably several members of his family were killed following the genocide revenge killings by Tutsis and the Rwandan Defence Forces (RDF). Although he was able to obtain employment with the government, this was possible only due to bribery and the corruption of the Rwandan government. In this role he faced discrimination and harassment from Tutsi colleagues, with Tutsis receiving preferential treatment. It is evident through his experiences that discrimination and violence directed towards Hutus has extended past the time of the genocide and is present today.
Membership of a particular social group
Failed asylum seekers
·     If the applicants were returned to Rwanda, they would be returning as failed asylum seekers. The Rwandan government views those who have sought asylum to be enemies of the government. It is likely that the applicants will be interrogated upon return to Rwanda in relation to their absence, their connection to the FDLR and their involvement in the genocide. Given A2’s imputed and actual connection to the FDLR, the applicants’ Hutu ethnicity and the fact that both applicants have experienced violence at the hands of the Tutsi and had family members that were killed by the RDF in post-genocide Rwanda, it is likely that they will face ill treatment and significant harm if they were involuntarily returned as failed asylum seekers.
·     Additionally, the applicants no longer own property on which they could live and they are both estranged from their familial networks. Therefore, the applicants would not be able to re-establish themselves if they were returned to Rwanda.
Failure to return as a recipient of a Government scholarship and study loan
·     A2 received a partial scholarship and study loan to travel to Australia. The government arranged, financed and supported his travel and study with the expectation that he would return to Rwanda and repay his study loan.
·     It has been three years since A2 completed his [degree]. Upon departure from Rwanda, the government was aware that [this degree] would be completed in [year]. The applicant’s failure to return indicates that he has sought asylum which the Rwandan government will view as indicative of holding an anti-government political opinion.
Women in Rwanda
·     A1 was subjected to several instances of sexual harassment, violence and rape while living in Rwanda. The most recent experiences occurred in 2010 and 2013. In 2010, in the course of her employment she was targeted and raped due to the fact that she was a single woman without male protection. In 2013, she faced harassment, discrimination and physical abuse when attempting to depart Rwanda due in part to the fact that she was a woman.
·     Should A1 be returned to Rwanda she will not be able to remain within the presence of her husband at all times and does not have any other male relatives to offer her protection.
·     A1 fears harm on the basis of her gender due to her lived experiences. If she was to be returned to Rwanda she is afraid that she will be kidnapped, sexually assaulted or raped because she is a female. This fear is further exacerbated due to her mixed Hutu and Tutsi ethnicity.
Woman suffering from mental health issues
·     Enclosed with this submission is the letter from [a health agency] detailing A1’s mental health condition. A1 fears that she will face harassment, discrimination and physical abuse due to the stigma and misunderstanding surrounding mental health illnesses in Rwanda.
·     A1 is currently receiving treatment for her mental health condition in the form of counselling through [Agency 1] and antidepressants. If she is returned to Rwanda, she would be unable to access treatment due to her ethnicity as a Hutu and the subsequent denial of her status as a genocide survivor. While living in Rwanda she was not able to see a psychologist and received inadequate treatment for her condition leading to suicidal ideations and attempts. The Rwandan mental health care system is not sufficient to provide the appropriate and necessary treatment that A1 requires.
Fear of harm relating to the applicants’ children
·     As stipulated in the applicants’ statutory declarations, they fear that their children will face the same level of discrimination, harassment and abuse due to their ethnicity as Hutu. The fact that A1 and A2 will be imputed with an anti-government political opinion will also place their children at risk.
Post-hearing submission

The following was submitted in writing after the hearing by the applicants:
Problems encountered departing from Rwanda
·     During the Tribunal hearing it was put to the applicants that the reason as to why A1 faced issues leaving Rwanda was due to airline policy requiring a return ticket to enable boarding and not due to her profile as a single Hutu woman from the Northern Province. However, the treatment A1 was subjected to at the airport was not consistent or proportionate with the need to enforce the alleged airline policy. Additionally, as the applicants attested, it was not the policy of [Airline 1] to require a return ticket to Rwanda to enable departure as both A1 and A2 eventually departed on one way tickets.
·     A1 was isolated, beaten and intimidated by Rwandan airport authorities in the presence of her two young children. This treatment is in line with the ongoing entrenched persecution of Hutus by Tutsis. The motivation and justification for this treatment is evidenced in the country information provided which highlights the underlying theme of Tutsi reprisal against Hutus for events that occurred during the genocide.
Employment with the Government and provision of a Government Scholarship
·     Although A2 was employed by the Rwandan government, as he explained at the Tribunal hearing and in both of his statutory declarations, he acquired this position through bribes and concealing his ethnicity as Hutu. He then faced discrimination and constant problems applying for scholarships and study loans which he was only able to obtain due to opportune timing and luck.
·     Additionally, in the alternative, any assistance he may have been provided due to his association with the Rwandan government will no longer be afforded as he has sought asylum and not followed the Rwandan government’s instructions regarding his government scholarship. The Rwandan government has openly criticized Rwandan asylum seekers and has equated the application for protection with treason, punishable by imprisonment. As the above indicates, the mere fact that the applicants’ have sought protection renders them of adverse interest to the Rwandan government and at risk of significant harm if they were to be returned.
Delay in departing from Rwanda and delay in applying for protection
·     During the Tribunal hearing, concerns were raised about the applicants’ delay in departing from Rwanda. A1 experienced significant barriers to escaping from Rwanda including limited finances, lack of understanding of her options as well as a lack of opportunity to leave Rwanda as an unemployed, single woman. It was only once she had met and married her husband that she became aware of potential avenues through which she would be able to escape Rwanda. However, A2, despite making several attempts to leave Rwanda under the guise of pursuing educational opportunities, was prevented due to his ethnicity. These mitigating circumstances hindered and delayed the applicants’ departure from Rwanda.
·     Further concerns were raised regarding the applicants’ delay in applying for protection once in Australia, stating that the delay amounted to a considerable amount of time. The applicants lodged their Protection visa application in August 2014, eight months after A1’s arrival. It is submitted that this does not amount to a considerable amount of time, particularly in light of the difficulties faced by the applicants as outlined below. Therefore, adverse inferences regarding the credibility or veracity of the applicants’ claims should not be drawn from the slight delay in lodging their protection application.
·     The AAT guidelines on assessing credibility highlight that:
A delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible. The significance of delay will depend upon the particular circumstances surrounding and the reasons given for the delay)
·     The Department of Home Affairs policy guidance in the Procedures Advice Manual (PAM3) Refugee Law Guidelines further note that in assessing a delayed application for protection, it is necessary to take into account the applicant’s personal history during the period of delay. PAM3 Protection Visa Processing Guidelines also note that the decision maker should consider whether the applicant can provide a plausible explanation for the delay and whether there are any mitigating circumstances or other factors that could explain or justify the delay.
·     The applicants provided plausible and reasonable explanations as to the delay in applying for protection. A2 arrived in Australia in July 2013, and as he stated during the Tribunal hearing, he was waiting for his wife and children to arrive in Australia before pursuing protection in Australia as he feared for their safety should the Rwandan authorities discover that he had sought asylum. A1 was only able to travel to Australia in December 2013 and at this time was experiencing significant distress and mental health issues. Given her condition, the applicants’ focus was on A1’s mental health which delayed the lodgment of their Protection visa application.
·     During the Tribunal hearing, the Member suggested that applying for protection in Australia can be done relatively easily by going to the Department of Immigration. However, the applicants were living in rural New South Wales (NSW), [in a specified town], and the closest Department office was in [a named city], a minimum three and half hour drive and it does not assist with, or accept visa applications.
·     Additionally, even if the applicants were able to access an office that accepted visa applications, the Department does not provide any assistance with completing the application form. Furthermore, the applicants would need to be aware that the Department is the applicable institution through which to apply for protection. As A1 stated at the Tribunal hearing, she was under the impression that they would need to find a United Nations High Commissioner of Refugees (UNHCR) office through which to seek protection, clearly indicating that the applicants were unaware of the process in Australia.
·     The applicants attested when they arrived in Australia they were not aware of their options or what organisations could provide them with assistance. They believed they needed the assistance of a lawyer or migration agent and therefore spent many months saving for the legal fees which delayed the lodgment of their application. The refugee determination process in Australia is fraught with complexities and the fact that A2 could speak English does not equate to a capacity or requisite understanding of the refugee determination process in Australia or the avenues through which one can seek protection.
Country information
Ethnic tension
·     During the Tribunal hearing, the Member referred to page 14 of the Department’s Primary Decision Record (‘decision record’), in which the following country information was quoted:
There is no country information to suggest that any ongoing tensions between Tutsis and Hutus have led to major outbreaks of violence or other civil disturbances in Rwanda in recent years.
·     It is further stated at page 13 of the decision record that:
country information indicates that there was a change of government after that time, and policies were implemented to assist in the eradication of ethnic, regional and other divisions in order to promote national unity.
·     This country information suggests that the law against genocide ideology and the gacaca courts have established conditions conducive to reconciliation and has resulted in a lack of tension between Hutus and Tutsis. However, in 2007 Human Rights Watch reported that:
since the perpetrators of the 1994 genocide were overwhelmingly Hutu, persons of Hutu ethnicity fear being identified as holding genocidal ideas or as attempting to avoid due process for crimes committed during the genocide.
·     The Immigration and Refugee Board of Canada (IRBC) also highlighted that ‘generalized discrimination in Rwanda occurs against members of Hutu ethnicity under the guise of considering them guilty of genocide’. This is consistent with the applicants’ experiences of ongoing harm in post-genocide Rwanda.
·     The United States Department of State further highlighted in their 2014 Country Report on Human Rights Practices that:
In June and July 2013, President Kagazne and several other political leaders called for young Hutus to apologize publicly for the genocide on behalf of their parents... several observers noted these proposals suggested that the Hutu ethnic group was collectively responsible for the genocide and contributed to the exacerbation of ethnic tension.
·     The idea that Hutus are collectively guilty for the genocide is further exhibited in treatment of Hutu victims of the genocide. In 2011 Human Rights Watch (HRW) reported that:
The genocide survivor fund has been a mixed success. Its benefits—especially medical fees, school tuition, and housing—have provided valuable assistance to many genocide survivors. However, it has a narrow definition of who qualifies as a "survivor." It excludes Tutsi women who were married to Hutu before the genocide and children of such marriages, as well as Hutu widows who lost their Tutsi husbands during the genocide.
·     One Tutsi widow married to a Hutu man who died during the genocide lamented the fact that she could not receive medical care even though she was handicapped as a result of injuries during the genocide. This is consistent with the applicant’s experiences in post genocide Rwanda in which A1 was unable to access much needed medical and mental health treatment as she was not considered to be a survivor of the genocide as her father was Hutu.
·     In relation to the alleged role of gacaca courts in providing an avenue for reconciliation, HRW in their 2011 Report ‘Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts’ noted that:
Hutu often stayed away from gacaca, afraid of being publicly denounced or concerned they might not be given an opportunity to defend themselves. According to one judge, people were also reluctant to speak out in response to false testimonies for fear of being accused themselves. Hutu whose relatives were killed - and property destroyed by RPI7 soldiers were unable to raise these cases, which left them frustrated and disappointed with the process.
·     It is evident that the attempts of the Rwandan government to encourage reconciliation and eliminate tension between Hutus and Tutsis has been unsuccessful. As highlighted by both applicants, they fear that upon return to Rwanda they would be arrested, imprisoned and beaten due to their imputed anti-government political opinion stemming from their ethnicity and their status as failed asylums seekers.
·     IRBC reported that:
Generally speaking, if you are Hutu and the government identifies you as an opponent, you would be accused of genocidal acts in 1994 or of such crimes as negationism, minimizing the genocide, or having a genocidal ideology at the present time. (HRW 24 May 2007)
·     The applicants faced ongoing persecution due to their ethnicity as Hutus in the form of denial of access to genocide survivor assistance, targeted identity checks and associated detention and physical abuse. This experience of persecution and fear is evident in the experiences of Rwandan refugees that have been repatriated from Uganda who have reported that:
When a Tutsi dies in a village, it is always a Hutu who is accused of the murder. Even causes of deaths are differently explained As one interviewee said: ‘If a Hutu dies, a is taken as normal death but if a Tutsi dies, they say s/he has been killed’ Other reasons for flight were cited: Being forced to pay for the property destroyed during genocide, racial discrimination in different sectors, being forced to work for genocide survivors, people forced to testify against those accused of genocide, forced to join Rwandese Patriotic Front/Army (RPF/A), no freedom of expression, people forced to share property with unknown persons, unfair treatment, Maus labeled as belonging to the Interahamwe (Hutu militia which took part in the genocide) and high taxes such as those for mutuelle de sente (social health insurance).
·     It is evident through the country information above and the applicants lived experiences in Rwanda, that the applicants would face a real chance of serious and/or significant harm in Rwanda due to their ethnicity as Hutu, subsequent imputed responsibility for the genocide and their imputed status as opponents of the Rwandan government.
Democratic Forces for the Liberation of Rwanda
·     The applicants’ profiles as opponents of the Rwandan government is further imputed due to A2’s travel to Congo and his relative who is a member of the FDLR.
·     In 2014 a series of individuals were arrested on suspected links to FDLR.
·     HRW and local observers reported that individuals detained during the January to May arrests of alleged FDLR collaborators were interrogated, abused, and in some instances tortured at military and police detention centres, including the Kwa Gacinya detention centre in Kigali and the Kami intelligence camp.
·     The treatment of individuals with actual or suspected links to the FDLR was further addressed in the 2017 HRW Report ‘We Will Force You to Confess’ (2017 HRW Report) in which it is reported that:
Many former detainees described beatings, asphyxiation, the use of acid to burn skin, and mock executions, as interrogators sought to extract information about their alleged links with the FDLR or opposition groups. Many were held in isolation, sometimes in a constantly dark or brightly lit cell.
·     A2 has a history of travel to the Congo and a relative who is a member of the FDLR. Based on this and in conjunction with his failure to return to Rwanda and his status as a failed asylum seeker, it is likely that he will be suspected of links to the FDLR upon return to Rwanda and will therefore face serious and or significant harm at the hands of the Rwandan authorities.
Mental health treatment and stigma
·     During the hearing the member accepted that health care in Rwanda is inadequate. A1, a survivor of sexual and gender based violence, was unable to access mental health treatment for a significant period of time due to these inadequacies. Additionally, when she was finally able to seek assistance, despite her diagnosis of post-traumatic stress disorder (PTSD) in Rwanda, she was instructed to have a healthy diet, drink water and avoid crowded areas. This treatment is inadequate and insufficient in treating PTSD. A letter from [Counsellor A], counsellor at [Agency 1], details A1’s mental health illnesses and the treatment that she requires.
·     Furthermore, country information indicates that people affected by mental health illnesses face stigma and are labelled as a ‘mad’ man or woman. A1 fears harm from the community based on this misunderstanding and stigmatisation of her mental health condition.
Relocation
·     As the applicants fear harm from the Rwandan government and authorities, relocation within Rwanda is not possible. At the Tribunal hearing, the Member did not raise any concerns in relation to the applicants claimed inability to relocate.
·     During the hearing the Member questioned whether the applicants could relocate to a neighbouring African nation to which the applicants responded in the negative.
Effective protection
·     The applicants’ imputed anti-government opinion would make them a target of the Rwandan authorities and render them without an avenue for effective protection.
·     Furthermore, A2 outlined ongoing issues relating to the death of his parents in 1997 which resurfaced with the sale of his land in the form of threatening phone calls. These issues were further experienced by A1 after her husband had travelled to Australia when she was visited by hostile unknown men. The applicants would not be able to seek effective protection from the Rwandan authorities to protect them from these non-state actors given their ethnicity as Hutu and imputed anti-government political opinion.
·     A1 cannot seek protection or assistance from the Rwandan authorities in relation to these instances of harm due to her ethnicity as a Hutu from the Northern Province. Therefore, this confirms that she would be unable to seek protection from the government authorities.
·     Although the genocide ended in 1994, there continues to be ongoing tension and conflict with Hutus being targeted by Tutsis and the Tutsi-dominated government, due to imputed responsibility for the genocide. This tension is evident in the experiences of the applicants who were subjected to serious harm by the Tutsi community, discrimination in their employment and in access to services and is supported by the above country information.
· If the applicants were to be involuntarily returned to Rwanda, they would be imputed with an anti-government political opinion due to their failure to return to Rwanda, their status as failed asylum seekers, their connection to FDLR and their ethnicity as Hutu. A1 will be further targeted due to her gender and mental health illnesses. Given the above, in the absence of state protection and the inability to relocate, it was submitted that the applicants are owed protection in accordance with the criterion set out in s.36(2)(a) of the Act for a Protection visa.
Analysis
Facts accepted by the Tribunal
I accept the following in regard to the applicants:
A1
·     A1 is [an age] year old married Seventh-Day Adventist female of Hutu ethnicity, who was born in Karongi, Rwanda in [year] and lived there, apart from the brief periods she lived in Congo. The applicant was married [in] March 2011. A1’s first daughter was born on [date], and her second daughter was born on [date].
·     She worked from February 2009 to December 2013, the time of her departure from Rwanda, as [an occupation]. A1’s mother and [other family members] are all residing in the same home in Rwanda.
·     Her [sibling] is a teacher while her other [siblings] are studying. A1 speaks English, French, Kinyarwanda and Swahili.
· A1 was issued a passport [in] 2013, which was valid to [2018], and both children were issued passports in [2013].
·     She was beaten and raped in 1994, when she had tried to escape an attack on her home. She was rescued by a woman who took care of her until she was able to find her family.
·     In 1995, she and her family could not get any help, food, clothes or education because they were Hutus.
·     Her father was jailed and after returning to the family home [in] April 2004, he was beaten until he was unconscious, by soldiers as revenge because it was genocide commemoration week and he later died. A gun was held to her head to stop her screaming and she and her family members’ lives were threatened.
A2
·     A2 is [an age] year old married Seventh-Day Adventist male of Hutu ethnicity, who was born in [a named town] in Rwanda in [year], and lived there for most of his life.
·     [Specified family members] are living overseas, [in specified countries], while [one sibling] is living in Rwanda. A2 also has [specified relatives] living in Rwanda and he was last in contact with his sisters two months before the interview, and he stated they were fine. His sisters and their families supported themselves by farming.
·     A2 worked as an [occupation] since 2010, for the Rwandan government, who financed his trip to Australia on a Rwandan government scholarship. He studied a [degree] and he was also working in a factory. He speaks English, French and Kinyarwanda.
·     After the genocide of 1994, he and his family had fled the country and stayed in a refugee camp in the Congo for almost two years until they were brought back to Rwanda by force. In November 1997, while his parents were hidden in someone’s house they were killed.
·     In May 1998, the RPF army came to their house and killed his [specified] relatives.

Beyond these facts I do not accept the applicants’ claims in relation to the reasons for their departure from Rwanda or that they would be of adverse interest to the Rwandan authorities. I do not accept their claims that they have profiles in opposition to the government.
Working for the government and receiving a scholarship
It is difficult to reconcile the position of A2 in his life in Rwanda with the claims against that country that he now makes. A2 has received a livelihood from a government dominated by the RPF. The RPF is seen as a Tutsi-dominated party. Despite his claims of discrimination he had ongoing employment under the Tutsi-dominated government. Despite the fact that there is Tutsi domination, this does not mean that there is no place for him in the civil service as a Hutu. I do not accept his characterisation of his employment only being achieved through the paying of bribes and deception, including pretending to be a Tutsi. I do not accept from his overall credibility issues that he maintained such an image over the period of his employment – three years.
Secondly A2 received backing for a scholarship to study abroad. In some accounts it was a part scholarship. It may have taken a number of attempts to obtain it. However it is unremarkable that it takes more than one attempt to obtain a scholarship around the world generally. One is not always guaranteed success at every attempt. I am mindful of the amount of effort involved but I am still puzzled how someone who is perceived as an opponent of the government both works for the government and gains a scholarship. While concealing views and identity is one way that might explain this outcome, I consider the level of subterfuge necessary in this scenario to be so high as to render the applicants’ portrayal of events as unlikely.
Events at airport
Moving to A1, I consider her account of events at the airport on her attempted departure from Rwanda to be puzzling and unclear. She stated in the hearing that her husband bought a one-way ticket for her and her children and she went to the airport. She was asked for papers and asked for the visa and told that her visa was not correct. She said Australian visas were separate documents. She stated that she was told that she could not leave because one-way tickets were not acceptable. She did not know what was happening. She communicated with her husband. All papers were taken off her and she had nothing. She kept telling them the situation but the plane took off. No one wanted to listen to her. There was a lady from [Airline 1] that was assisting her. She was to call her husband to fulfil the ticket requirements to help them leave. The plane eventually departed and she went home. She talked to her husband. Her husband had the situation explained to him.
A1’s husband contacted the airline. The situation was strange because the visa was legal and acceptable. The airline agency tried to speak to the people that operate the airport in Rwanda. The husband was trying to explain the case and the airline gave her another chance to go. A person at the airport called [Mr B] was to be contacted at a particular phone number. [Mr B] would help with further problems.
A1 obtained another ticket and collected her bags and tickets and went to the airport again.
When A1 went back to the airport the situation repeated. She tried to call [Mr B] but [Mr B] was scared and said that the problems were much bigger than he could handle. A1 kept calling [Mr B] to no avail. [Mr B] ended up switching his phone off. A1 then had to talk to the people who had taken her papers away from her. She told them that she had not broken any law and wanted to know why they had done this.
She could not take it anymore and she started talking and all the frustrations that she had about the government and the leadership of Rwanda and their harassment of her and mistreatment of her family were let out. She did not mean to say any of it. They took her into a room in the airport and started pushing her and saying ‘what are you saying, you lady’. They asked her words to the effect of ‘How do you have the guts to say these things’. They started calling her names. The situation became worse and her children began to cry. The people started threatening to take her away to a jail and no one would ever know.
A certain person in the room spoke to her and kicked her. She started pleading with them to forgive her in response to this treatment.
I asked the applicant whether the people involved in her mistreatment were police or army personnel. She said she did not know and that they were in plain clothing.
I asked the applicant whether she could work out who was from the airline and who was not. The lady that took her into the room was wearing a red jacket and black pants. She believes this was an airport worker. The time she came back to the airport the other people were wearing the same clothing as the lady.
I asked the applicant what the problem was with having a one-way ticket. Looking at it now she considered that perhaps they did not want her to leave the country. The reason why was when they looked at her bag they said this is too big and it is a case of ‘perhaps you’re not going to come back here’.
Another matter was that she believed that she could show that they had powers to stop her or direct her to do whatever they wanted. Her record showed that she came from the Western region of Rwanda, and they were bullying her because she was from that region and had children with her. When she was in the room they used words such as Kiga, which is the term for people in the northern part of Rwanda who have a different intonation.
She is in fact a Kiga as that is where she comes from. She claims it is not a good thing when someone tells it you are a Kiga; it is pejorative.
Bearing all of this information in mind, it is still very puzzling and unclear why the applicant ran into difficulties at the airport. Exactly who was causing difficulties is obscure. The people seem to have a particular type of uniform, and yet they were also described as being in plain clothes and therefore not identifiable as military or police. Whether they were airport ground staff, employees of [Airline 1] or some other sorts of employees is unknown. It is puzzling that A1 did not establish who these people were. I cannot say with certainty that they were officials of the Rwandan government. They may have been private employees. I am completely unclear as to their ethnicity or political alignment, if any.
It is apparent that A1 was upset. There was confusion about these conditions. There was confusion about whether one-way tickets were acceptable. A1 lost her temper at the airport which led to her being placed in another room. However I am not enlightened as to who these individuals are that are said to have treated her poorly and what their reasons might be. I find that a dispute over requirements for boarding an aeroplane has led to frustration and anger, and may have led to unprofessional behaviour on the part of certain staff. However I do not find that there is evidence of behaviour worse than that. I am by no means clear that harm was carried out by officials or operatives of government. They simply could not be identified and their status is speculative. Negative comments about people from the western region of Rwanda have been made, but in themselves do not amount to harm. Ultimately A1 and her children were able to leave Rwanda and it appears that this occurred after an apology was given by A1.
The delays in applying for protection in Australia
The applicants delayed in applying for protection once in Australia. The applicants lodged their Protection visa application in August 2014 – eight months after A1’s arrival. That A2 had arrived several months earlier and was waiting for his wife and children is plausible. A1 stated her need to leave Rwanda for her own sake and that of her family.
Despite all her stated dilemmas and problems she delayed for two-thirds of a year. It is puzzling that matters so pressing were not dealt with more expeditiously. The parties lived outside of main population centres in Australia. Yet they are a family with education – A2 is capable of gaining a scholarship to study at [a specified] level, and internet access is wide reaching. An individual does not have to personally attend a departmental office to apply. The applicants may have been under a misapprehension but it is hard to believe that this would extend to months. Relatively quick searches would have established that the Australian Immigration department is the appropriate point of call, not the UNHCR. It is incongruous that there is such a lack of curiosity or checking for such a long period. Even bearing in mind mental health challenges, a relatively well educated couple are able to establish this information. I bear in mind that A2 studied [subject] and is presumably IT-savvy. Their perceived problems are so great, it is hard to imagine why they tarried for this length of time so as to ensure that they did not have to return. It therefore throws into doubt the whole-heartedness of their claims about perceived persecution or harm in Rwanda.
Failed asylum seekers
It is submitted that A2 and his family have failed to return to Rwanda and no repayments have been made towards A2’s study loan, which indicates they have sought asylum in Australia.
It is further submitted that the Rwandan government views those who have sought asylum to be enemies of the government. It is likely that the applicants will be interrogated upon return to Rwanda in relation to their absence, their connection to the FDLR and their involvement in the genocide. It is submitted that given A2’s imputed and actual connection to the FDLR, the applicants’ Hutu ethnicity and the fact that both applicants experienced violence at the hands of the Tutsi and had family members that were killed by the RDF in post-genocide Rwanda, it is likely that they will face ill treatment and significant harm if they were involuntarily returned as failed asylum seekers.
An article was submitted from an Australian newspaper: ‘Commonwealth Games 2018: Rwandan athletes warned against fleeing’ (Greg Stolz, Courier-Mail, 22 March 2018) stating that: ‘Rwandan athletes have been warned they face being charged with treason and thrown in jail if they try to do a runner at the Gold Coast Commonwealth Games.’
The Tribunal notes that this is a piece on athletes in a high profile environment and does not establish a link between them and the applicants (who are ordinary people). It is not suggestive of an imputed opinion for the applicants. The Tribunal also contemplates the fact that these are claims surrounding a popular sporting event and may attract hyperbolic responses. While A2’s scholarship may contain an element of representing his country, the link is limited at best. I give this information little weight.
I also have little before me on the status of failed asylum seekers in Rwanda in A2’s circumstances. There is at most an assertion that a failure to repay the scholarship money or complete the course amounts to an automatic deduction that there has been an asylum claim. It might be viewed as irresponsible or undesirable, but it could also be a case of merely overstaying a visa. Secondly the applicants are not known to be political opponents, critics, or outspoken journalists, and it is difficult to gauge them as facing risk.
For these reasons the other claims of the applicants are thrown into doubt.
Thus I do not accept:
·     That A1 had difficulties when she wanted to marry her husband because he is Hutu and her husband decided to take her to stay with his [family] where she attended a doctor for treatment of her condition. Her husband’s family was removed from the DRC by the Rwandan government by force and killed.
·     That two weeks after her husband (A2) came to Australia, in July 2013, two men came to her house on three occasions, a few days apart. They pretended to be friends of her husband and they told her that the government should^-have investigated her husband before giving him a scholarship to come to Australia.
·     That they asked for his address and phone number and she told them that she did not have it.
·     That when she told her husband he applied for a visa for them to come to Australia.
·     That A1 was beaten or harmed at the airport in Rwanda.
Further I do not accept:
·     That although A2 was able to obtain employment with the government, this was possible only due to bribery and the corruption of the Rwandan government.
·     That in this role he faced discrimination and harassment from Tutsi colleagues.
·     That in December 2012, A2 was in a bar with a co-worker and a friend of his co-worker, who are Tutsis, when they started talking about their relatives fighting in Congo.
·     That a co-worker warned his friend about talking in front of A2 because he is Hutu but he would not stop talking because he was drunk.
·     That a few days later his colleague’s friend met him in town and told him that he was military and even though he worked for the government he should remember who he is and where he is from, and that he knew that A2’s parents were killed.
·     That after that day he stopped going to the bar because he no longer felt safe and he thought someone might follow him home or to his work.
·     That in March 2013, he received a call from a private number telling him that they knew he was going to sell his parents’ home and after the money was transferred to his account, they called again and told him they wanted him to meet them in a bar in Kigali and when he did not meet them, they called again and threatened him, saying they had records against him and he had nowhere to hide or escape.
·     That after he came to Australia, people came to his home and asked his wife how he got the scholarship and that they should have investigated him more before giving him the scholarship.
·     That as a Hutu from the Western Province, with DRC stamps in his passport, he may be called an enemy of the country.
·     That he will be jailed or killed by the government or any people involved in the killing of his parents and his relatives if he were to return to Rwanda because many people have been disappearing since May 2014.
·     That he and his family left Rwanda, because they are seeking protection for their lives as they believe their lives will be in danger if they return to Rwanda, particularly after the men came to their house which made them fearful to return to Rwanda.
·     That the Rwandan government will not protect him as they are behind all of the killings and disappearance of people.
·     That the government is only willing to protect one group of people and that means he cannot be protected by this government. This is because they brought his family back by force from the DRC and they could not protect them from being killed, and they did not.
·     That issues about threats on the sale of land were further experienced by A1 after her husband had travelled to Australia when she was visited by hostile unknown men.
·     That police were hostile or abusive or aggressive to A1 or A2, that they were pulled over and taken to a police station and harmed.
·     That matters are exacerbated due to A1’s claimed mixed Hutu and Tutsi ethnicity.
·     That the applicants would have an imputed political opinion against the authorities based on their failure to return to Rwanda.
As a result of the issues with evidence listed above under ‘Events at airport’ and ‘The delays in applying for protection in Australia’, I do not accept that there were discriminatory, persecutory, or harm-causing occurrences that took place in those contexts under those subheadings. The cumulative effect of the concerns about the applicants’ evidence, together with plausibility concerns, are so significant that they taint their claims overall.
Responses to country information
Country information was put to the applicants in the hearing.
Page 14 of the Department’s decision record states the following country information:
There is no country information to suggest that any ongoing tensions between Tutsis and Hutus have led to major outbreaks of violence or other civil disturbances in Rwanda in recent years.
The applicant replied that violence does not get reported. She said that a Rwandan minister had stated that going outside the country to claim asylum is an insult to Rwanda.
I found that this response seems incomplete when one considers what the delegate wrote and quoted:
However, country information indicates that there was a change of government after that time [1994], and policies were implemented to assist in the eradication of ethnic, regional and other divisions in society in order to promote national unity.
Since 1994 the government has called for national reconciliation and abolished policies of the former government that created and deepened ethnic divisions. The constitution provides for the eradication of ethnic, regional, and other divisions in society and the promotion of national unity. (5.5 — 5.7) In August 2013, the government signed into law a revised genocide ideology law that introduced international definitions for genocide and narrowed the scope of what constitutes "genocide ideology" and related offences to a more specific range of actions and statements. Specifically, the new law states that "genocidal ideology" must be clearly linked to specific acts or statements, rather than the broader "aggregate of thoughts" standard defined in the 2008 law. International and local human rights organizations, including HRW and the Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR), welcomed the revised law while expressing concern that, despite clearer protections and narrower definitions, the law still could be used by the government to restrict freedom of speech and the press. (5.13, 5.26)
The above quote references Rwanda: 2011 Country Reports on Human Rights Practices, released by the Bureau of Democracy, Human Rights, and Labor, US State Department, 24 May 2012.
The delegate went on to state:
Community-based gacaca courts, which have tried more than 1.2 million genocide-related cases since 2005, had almost completed their work by the end of 2011. They left behind a number of positive achievements - including the swift work of the courts, the extensive participation of the local population, and the revelation of information about events during 1994 - alongside violations of the right to a fair trial, intimidation of witnesses, corruption of judges and other parties, and political interference. (5.5 — 5.7) Reports indicate that, while ethnic tensions between Hutus and Tutsis in Rwanda may have eased due to the activities of the gacaca.(5.9)
President Kagame could build resentment in the majority Hutu population by suppressing open discourse about ethnicity and the history of the genocide through suppression of freedom of speech and freedom of the press on genocide-related issues. (5.5, 5.8) Nevertheless, there is no country information to suggest that any ongoing tensions between Tutsis and Hums have led to major outbreaks of violence or other civil disturbances in Rwanda in recent years. Furthermore, on 7 April 2014, commemorations of the 20^th anniversary of the genocide were conducted and President Paul Kagame and Ban Ki-moon, the UN secretary general, lit a flame at the Kigali genocide memorial centre, as thousands of Rwandans packed the country’s main sports stadium to mark the occasion (5.18).
The applicants counter this country information with information from the IRBC, which highlighted that ‘generalized discrimination in Rwanda occurs against members of Hutu ethnicity under the guise of considering them guilty of genocide’. This is consistent with the applicants’ experiences of ongoing harm in post-genocide Rwanda.
While there may be generalised discrimination, and the applicants may have felt it, this in itself does not mean that persecution has taken place as claimed, even in a cumulative sense. As the Tribunal has serious concerns about a number of the instances cited, it is not apparent that the discrimination is affecting the applicants to the degree they claim. I am not persuaded by A1’s response that history has been whitewashed by the Government as a means of stating that the quoted country information does not apply here.

I consider the US State Department report’s noting of suggestions that the Hutu ethnic group was held by the Government as collectively responsible for the genocide and contributed to the exacerbation of ethnic tension. Again, the earlier issues with the applicant’s evidence still present such concerns that I read down the import of such tensions and discrimination.
The reconciliation process and the gacaca courts appear to be imperfect and have their flaws and exceptions. However they have coincided with a marked reduction in violence and harm in Rwanda and make the claims of the type of harm and discrimination that the applicants make to be a less likely scenario.
I am unable to state with certainty the precise events occurring in 2010, as described by A1, that ‘in the course of her employment she was targeted and raped due to the fact that she was a single woman without male protection.’ While a definite finding on this point is difficult to make because of the very limited evidence before me, I will contemplate a scenario of this having occurred. Even in such a scenario, I am not convinced that this necessarily means that there is a resultant well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in A1’s case. A very serious crime would have occurred in this scenario and indeed A1 has been raped before (in the 1990s). However a person can be a victim of a crime but at the same time not be in a situation of persecution or hold a well-founded fear of it. There might be a conclusion that they are indeed a victim of a serious crime yet there are no wider implications. Because of my earlier reservations and concerns about other evidence I do not have reason to go beyond such a conclusion.
I also consider the situation concerning sexual violence in Rwanda. The US State Department Report 2017 states at page 35:
The law criminalizes rape of men and women and spousal rape, and the government handled rape cases as a judicial priority. Penalties for conviction of rape range from five years’ to life imprisonment with fines of 500,000 to one million Rwandan francs ($592 to $1,183). Penalties for conviction of spousal rape range from two months’ to life imprisonment with fines of 100,000 to 300,000 Rwandan francs ($118 to $355).
I conclude that the applicant is a victim of past crime. I find that she fears future sexual assault occurring again. However it is not apparent that she fears persecution for a Convention reason. It appears that she had a vulnerability to attack because she was alone. This could be said of a number of victims of crime – they may not have been victims if there had been other people with them. The fears of persecution are not well founded. A1 did not leave Rwanda for some years after the attack, although I accept she contemplated it. I have seen no objective evidence to suggest that the police are predominantly Tutsi or that she was denied help by the police. She said that she had not gone to the police because they would not help her or it would worsen matters. Yet counter to this I am satisfied that with a functioning – although by no means optimal – police force sufficient protection exists if she is returned to Rwanda.
The US State Department Report 2017 states at page 9:
Police at times lacked sufficient basic resources--such as handcuffs, radios, and patrol cars - but observers credited the RNP [Rwanda National Police] with generally strong discipline and effectiveness.
The country information about the applicants’ ‘profile as opponents of the Rwandan government is further imputed due to A2’s travel to Congo and his relative who is a member of the Democratic Forces for the Liberation of Rwanda (FDLR).’
I accept country information that in 2014 a series of individuals were arrested on suspected links to FDLR and suffered beatings, asphyxiation, the use of acid to burn skin, and mock executions, as interrogators sought to extract information about their alleged links with the FDLR or opposition groups.
However, it requires a number of logical steps to conclude that A2, having a history of travel to the Congo and a relative who is a member of the FDLR, based on this and in conjunction with his failure to return to Rwanda and his status as a failed asylum seeker, will be suspected of links to the FDLR upon return to Rwanda and will therefore face serious and or significant harm at the hands of the Rwandan authorities. I acknowledge that he states he has sought to obscure certain facts about himself to his employer and to others. Yet he has managed to have long term employment, receive an education and a scholarship apparently with the blessing of decision makers in Rwanda. I have difficulty in seeing a distinction as portrayed in the hearing between public (government) education officials arranging the scholarship and the Rwandan government approving it. It is therefore puzzling that matters have been so challenging to him and yet he can still have these achievements. I do not accept his evidence here and I also reject the alleged negative implications of being a failed asylum seeker for the reasons previously indicated.
I am unable to state with certainty the precise events occurring to A2 when by his account soldiers harmed him in the late 1990s. A2 was unable to identify the precise year of this situation. This is a concern that the year cannot be identified when it is presumably a life changing situation. I am also puzzled that perceived enemies became aware of the continued existence of the parties when they tried to sell family land. This was incongruous with the public government work of the applicant. His claims that he is a particular type of Hutu (one from [their town]) who are said not to be welcome in other parts of Rwanda. The FDR armed group are from there and the applicant has relatives who are in it. People who killed A2’s parents are said to want to kill him too. In all of this evidence it is then perplexing how A2 can have such troubles and yet openly work for the government and receive a government scholarship. His identity would be well publicised. Notwithstanding his bribing of the officials and his claim that he was seen as a Tutsi which facilitated his work meaning that people would look the other way, his identity would be better known. Therefore I discount his evidence on these aspects of his claim and find that they are not a reality for him.
I accept that the applicants have experienced frustration with the authorities and with law-breakers. In portions of their lives the applicants have experienced hardships and name- calling, and indeed, violence. Nonetheless the position in Rwanda has improved since the genocide and its immediate aftermath. From country information there is not the suggestion that Tutsi–Hutu tension has led to major outbreaks of violence or other civil disturbances in Rwanda in recent years. Because of this stabilisation and the issues I have with the credibility of certain parts of their evidence I conclude that there is not a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Mental Health
I note the evidence given about the mental health difficulties of A1.
{A named] clinical psychologist, on 25 February 2016 wrote that:
·She had five sessions with A1 in 2016. Psychological assessment revealed A1 met diagnostic criteria for PTSD. She experienced [specified symptoms including] avoidance of talking or thinking about any aspects of the trauma she had experienced. She had isolated herself and did not often socialise with others. She was terrified of darkness and each evening would ensure all of her doors were locked. She would sleep in the same bedroom with her children with the lights brightly on and would not fall asleep until her husband returned home from work late at night, or when it was daylight.
·A1’s trauma history is significant, commencing at the time of the genocide in Rwanda when she was [age] years of age. Her mother was Tutsi and father Hutu. Because A1’s mother was Tutsi, Hutus wanted to kill the family. Hutu men would come to her house daily where she was residing with her parents and [family members], to terrorise the family. All of A1’s family on her mother’s side were killed during the genocide. When she was [age], A1 was taken by a Hutu man for a period of five days and held captive. During this time she was left alone for long periods in a locked house, and she was repeatedly raped. Once the genocide was over, A1’s father was tortured and imprisoned by Government officials as he had been accused of being involved in the genocide because he was Hutu. Once released from prison he was tortured and left to die.
·Following the genocide, A1 suffered nightmares and would often scream during the night. The other children in her village rejected her as a result, fearing she had demons within her. She was isolated at school and in her community, and because of her Hutu connections through her father, was unable to access Government support programs available to Tutsi people in her village following the genocide that could have assisted with her psychological healing.
·In addition to the trauma A1 experienced during the period of genocide, the ongoing impact of peer rejection and social isolation left A1 lacking in confidence and with features of social anxiety. Prior to moving to Australia, A1 suffered another traumatic experience when she was beaten by Government officials in a private room at an airport in Rwanda in front of her children. A1 had regular nightmares about this assault in which she re-experienced the pain of this event. A1 was fearful for her safety and that of her children if she had to return to Rwanda in the event her visa application is rejected.
I have given consideration to A1’s mental state at the time of the hearing. She was lucid throughout the hearing and could answer questions with confidence. At times she became upset and she was given time and breaks to compose her thoughts. Although the hearing was stressful to her, she was capable of giving evidence competently. I have taken into account the report from [Counsellor A], counsellor at [Agency 1] detailing A1’s mental health illnesses (anxiety, depression, [and other] symptoms) and the treatment that she requires. The hearing was conducted in accord with [Counsellor A’s] suggestion that breaks and having questions repeated are fitting.
It is submitted that country information indicates that people affected by mental health illnesses face stigma and are labelled as a ‘mad’ man or woman. A1 is said to fear harm from the community based on this misunderstanding and stigmatisation of her mental health condition. It is not entirely clear how it is concluded that she will face harassment, discrimination and physical abuse due to the stigma and misunderstanding surrounding mental health illnesses in Rwanda. She may need counselling and antidepressants. But I do not have evidence before me to suggest that she would be unable to access treatment due to her ethnicity as a Hutu, or because she is female or for any other social group reason, or any other reason. I note from [Counsellor A’s] report that A1 received treatment while in Rwanda. I acknowledge that A1 has experienced trauma and shows symptoms to the present including waking up screaming. While the Rwandan mental health care system may have flaws in giving appropriate and necessary treatment that A1 requires, I find that in and of itself this does not form discrimination, which when accumulated with other forms of discrimination amounts to persecution. A stretched or failing health system is not of itself a perpetration of an act or an omission against A1.
I note from the US State Department Report of 2017:
There was one government psychiatric referral hospital in Kigali, with district hospitals providing limited psychiatric services. All other mental health facilities were nongovernmental.
There is no mention of discrimination being present or Hutus being sidelined. I note that A1 has been treated in Rwanda. I do not have other country information to support A1’s claim and do not find it to be the case.
Claims of the third and fourth applicants
[The applicant’s children, A3 and A4] are A1 and A2’s children. They are [specified ages] years old respectively. They do not make separate claims and are the same ethnicity and religion as their parents. My findings in relation to A1 and A2 are the same insofar as they relate to A3 and A4.
Complementary protection
In considering whether the applicants meet the complementary protection criterion under s.36(2)(aa) of the Act, I have considered whether I have substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. In this case, I have found that the applicants are nationals of Rwanda and I therefore find that Rwanda is the ‘receiving country’ for the purposes of s.5(1).
For the reasons set out above, I have not accepted the applicants’ claims to have been threatened by persons, detained and harmed by the authorities, or otherwise harmed before departure, nor have I accepted that there is a real chance that the applicants will be harmed on return.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
For the same reasons I do not accept that there is a real risk that the applicants will be harmed on return as a necessary and foreseeable consequence of the applicants being removed from Australia to Rwanda.
Nor do I accept on the evidence before me that there is a real risk the applicants will suffer significant harm for any other reason as a necessary and foreseeable consequence of their removal to Rwanda. Therefore the applicants do not satisfy the criterion set out in s.36(2)(aa).
A3 and A4 do not make separate claims and are the same ethnicity and religion as their parents. My findings against the complementary protection claims in relation to A1 and A2 are the same insofar as they relate to A3 and A4.
Conclusion
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a Protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Justin Meyer
Member

ATTACHMENT - RELEVANT LAW
In accordance with section 65 of the Migration Act 1958 (the Act), the Minister may only grant a visa if the Minister is satisfied that the criteria prescribed for that visa by the Act and the Migration Regulations 1994 (the Regulations) have been satisfied. The criteria for the grant of a Protection (Class XA) visa are set out in section 36 of the Act and Part 866 of Schedule 2 to the Regulations. Subsection 36(2) of the Act provides that:
‘(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 under the Refugees Convention as amended by the Refugees Protocol; 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.
Refugee criterion
Subsection 5(1) of the Act defines the ‘Refugees Convention’ for the purposes of the Act as ‘the Convention relating to the Status of Refugees done at Geneva on 28 July 1951’ and the ‘Refugees Protocol’ as ‘the Protocol relating to the Status of Refugees done at New York on 31 January 1967’. Australia is a party to the Convention and the Protocol and therefore generally speaking has protection obligations to persons defined as refugees for the purposes of those international instruments.
Article 1A(2) of the Convention as amended by the Protocol relevantly defines a ‘refugee’ as a person who:
‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’
The definition contains four key elements. First, the applicant must be outside his or her country of nationality. Secondly, the applicant must fear ‘persecution’. Subsection 91R(1) of the Act states that, in order to come within the definition in Article 1A(2), the persecution which a person fears must involve ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. Subsection 91R(2) states that ‘serious harm’ includes a reference to any of the following:
(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.
Complementary protection criterion
An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set out above. A person will suffer ‘significant harm’ if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’. The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are further defined in subsection 5(1) of the Act.
Ministerial direction
In accordance with Ministerial Direction No. 56, made under section 499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Citizenship - ‘PAM3: Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3: Refugee and humanitarian - Refugee Law Guidelines’ - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

[2019] AATA 1593

25 January 2019

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Immigration

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Statutory Interpretation

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