1608569 (Refugee)

1608569 (Refugee) [2019] AATA 6658 (26 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1608569
COUNTRY OF REFERENCE:                   Rwanda
MEMBER:Roslyn Smidt
DATE:26 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 26 August 2019 at 2:18pm
CATCHWORDS
REFUGEE – protection visa – Rwanda – political opinion – senior role with Rwandan National Congress (RNC) in Australia – former member of Rwandan Patriotic Front (RPF) in Rwanda – threat of harm – court summons – father killed in ethnic violence – credibility – fraudulent documents – delay in making application – third country protection – risk of refoulement East African Community countries – decision under review remitted
LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

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 on 17 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who are citizens of Rwanda, applied for the visas on 9 January 2015. The delegate refused to grant the visas on the basis that while he accepted that the applicant had been involved with the Rwandan National Congress (RNC) in Australia, he had a right to enter and reside in other countries in the East African Community [Kenya, Uganda, Burundi or Tanzania] and he had not taken all possible steps to avail himself of this right. The delegate also found that the applicant did not face a real chance of experiencing serious or significant harm in the EAC countries as he was not a high profile member of the RNC.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant is a [age] year old man of Hutu ethnicity and Christian religion. He is married and has two children. His wife and children are included in this application as dependents, but have not made any individual claims for protection. His father is deceased. His mother and [number] siblings reside in Rwanda. Another brother lives in [Country 1].
The applicant completed high school in [year]. In 2004 he completed [a course] at [an educational institute]. In 2008 he completed [a higher qualification] at [a university] in [Country 2]. From 2005 until his departure from Rwanda in 2013 he worked in relatively senior positions within government [institutions]. From December 2011 until January 2013 he [worked in a senior government position] . During the time he worked in these positions he was sent to [Country 3], [Country 4] and [Country 5] on a number of occasions to participate in training or to attend professional conferences.
The applicant travelled to [Country 3] in [2010] for training and [again later in] 2010 and in [2012] to attend a conference.
In [2012] the applicant applied for [a] scholarship to study in Australia. He was granted the scholarship and obtained a student visa 3 December 2012. He arrived in Australia [in] January 2013. He completed his degree in late 2014. He applied for a protection visa on 9 January 2015. His student visa ceased on 25 January 2015. His passport expired [in] 2017.
The applicant’s wife and children obtained Rwandan passports [in] 2013. They were granted Australian visas on 4 October 2013 and arrived in Australia [in] November 2013.
SUMMARY OF CLAIMS
The applicant claims that he would face detention, torture and possibility death if he returned to Rwanda because he is an active member of the RNC and because his demand for a decent burial for his father and his views on reconciliation in Rwanda are unacceptable to the Rwandan government.
The applicant’s claims are contained in a statement provided with his protection visa application lodged on 9 January 2015, oral evidence provided during an interview with a delegate of the Minister for Immigration on 25 November 2915, a submission prepared with the assistance of his representative which was provided to the Tribunal on 3 July 2019 and oral evidence provided at a hearing on 9 July 2019. The hearing was conducted in English.
The applicant has also provided a number of documents including membership cards for the RNC, supporting letters from members of the RNC, a letter requesting leave of absence from his job and a response from his employer refusing this request and a summons to attend a police station in Kigale. He also provided submissions and supporting reports regarding the situation in Rwanda.
COUNTRY INFORMATION
According to the 2018 US Country Report on Human Rights Practices, Rwanda is a constitutional republic dominated by a strong presidency. The ruling Rwandan Patriotic Front (RPF) led a governing coalition that included four smaller parties. The constitution provides for a multiparty system, but gives few rights for parties and their candidates. There were numerous reports of detention of individuals who disagreed publicly with government decisions or policies.
Rwanda has laws prohibiting divisionism, genocide ideology, and genocide denial which prohibit any act that divides the populace or may set them against each other or cause civil unrest because of discrimination. The law also prohibits spreading “false information or harmful propaganda with intent to cause public disaffection against the government”. A failed asylum seeker who founded a political party and a blog which was blocked by the government while living in Norway was arrested when he was returned to Rwanda in 2016 and sentenced to ten years jail in 2018 for inciting civil disobedience and spreading rumors. In July 2018 a man was sentenced to nine years in prison for genocide denial because he had described the events of 1994 as a civil war rather than as genocide.
Human rights issues noted in the US report include unlawful or arbitrary killings by state security forces; forced disappearance by state security forces; torture by state security forces including; arbitrary detention by state security forces; political prisoners; arbitrary or unlawful interference with privacy; threats to and violence against journalists, censorship, website blocking, and criminal libel; substantial interference with the rights of peaceful assembly and freedom of association, such as overly restrictive nongovernmental organization (NGO) laws; and restrictions on political participation.
The RNC is an opposition political organisation formed in exiled during December 2010 by former senior members of the Rwandan government based in the USA and South Africa some of whom had been sentenced in absentia to lengthy prison terms. Founding members included former chief of staff of the Rwandan army Kayumba Nyamwasa and a former chief of military intelligence, Patrick Karegeya and Gervais Condo.[1] Reports suggest that there have been a number of splits in the group since 2010.
[1] Mukombozi, R 2010, ‘Exiled Rwandan officers form party’, Daily Monitor, 14 December
The RNC is banned in Rwanda, in part because the government has accused the group of being a terrorist group with links to the Democratic Forces for the Liberation of Rwanda (FDLR), a claim denied by the RNC but supported to some degree by a December 2018 United Nations Security Council report.[2]
[2] ‘Rwanda National Congress (RNC) denies once again the links with FDLR’ 2019, The Rwandan, 29 January >
It is not clear whether the RNC has a significant presence inside Rwanda. However, the evidence suggests that known or suspected members or associates of the group would be at risk of detention. A Rwandan-British woman married to a member of the RNC was detained and charged with revealing state secrets and offenses against the established government while visiting Rwanda in February 2017. She was released on bail in late March because there was insufficient evidence to warrant her detention. She returned to the United Kingdom shortly afterwards.[3]
[3] Human Rights Watch, World Report 2018 - Rwanda, 18 January
Limited evidence on the presence and history of the RNC in Australia could be located. According to reports the RNC mobilised people in Australia to protest against President Kagame’s attendance at the Commonwealth Heads of Government Meeting (CHOGM) in Perth from 28 to 30 October 2011.[4] According to press releases from the [group][5] [Mr A] was elected as [Office Bearer 1] of the Australia chapter of the group in [2016] and again in [2018]. [Mr B] was [Office Bearer 2] in 2016 and [Office Bearer 3] in 2018.
[4] Rwanda Opposition to Stage anti-Kagame Protest During CHOGM’ 2011, Great Lakes Voice, 19 October and African Survivors Network 2011, Rwanda Under Undeclared State of Emergency as the Rwandan Leader is met by Protestors around the world, 30 October
[5] [source deleted]
At the hearing [Mr B] said that he had joined the RNC shortly after it was formed in 2010 at the invitation of one of the members of the group. He and others established an RNC group in Australia in about June 2010 [presumably 2011]. At that time it had [number] members. Initially they were involved in recruiting members from the Rwandan community in Australia. They were also involved in a demonstration against the Rwandan President who visited Australia to attend a Commonwealth Heads of Government meeting in 2011. He said that that group had not operated in Australia openly prior to 2016. He said that there were now has about [number] members of the group in Australia.
FINDINGS OF FACT
Activities and problems prior to arriving in Australia
Claims and evidence
The applicant claims that his father was killed during ethnic violence in 1998, probably by the by the Rwandan Patriotic Army, and buried without dignity in a mass grave. The applicant was away from home at school at that time. In his initial application he claimed that he had been targeted by RPF intelligence for raising the issue of his father’s undignified burial and because of his opinions regarding Rwanda’s reconciliation policy. It was because of this that he had to join the RNC and fight for freedom. During his interview with the delegate he said had wanted to bury his father with dignity but this was against the ideology of the ruling party and some politicians had been jailed for expressing similar views, but the issue was not further examined.
During the hearing the applicant said that he had first raised the issue of his father’s burial with local authorities in 2002 and that he had raised the issue a number of time following this, but to no avail. He also claimed that he began to raise broader objections to the Rwanda’s reconciliation process after his visit to [Country 3] in 2010. For example, he objected to a requirement that the sons of those involved in the genocide should ask for forgiveness. He claimed that raising these issues could lead to jail in Rwanda. However he said that he had not faced any problems until November 2012.
The applicant states that he joined the ruling Rwandan RFP in 2004, mainly in order to advance in his profession and to avoid suspicion which non-members faced. He occupied senior positions in his branch of the party including [named positions], and in late 2008 he became [Office Bearer 4] at his branch. According to his evidence, [in this role he] was responsible for controlling other members. He told the delegate that he had ceased his involvement in the RPF in 2011 or 2012 because the party did not accept his ideas. However, during the hearing he said that he had reduced his activities significantly after he returned from [Country 3] in October 2010, but he did not resign from the party and continued to hold the position of [Office Bearer 4] of his branch until he left for Australia in January 2013.
The applicant claims that he became a member or supporter of the RNC prior to coming to Australia. In his initial application he said that he joined the party in March 2012 because he had been targeted by the RFP. During his interview with the delegate he claimed that he had first had informal contact with the group when he visited [Country 3] in October 2010 and spoke to his friend [Mr C] who knew about the proposal to form the party. He claimed that he joined the RFP in [Country 3] in March 2012 by telephoning [Mr C] who spoke to the manager of the group. He showed the delegate two membership cards both dated March 2012. He said that one was issued in [Country 3] and sent to the Chairman of the local group in December 2014, the other was issued in Australia. He said that they were both dated March 2012 because that was when he joined the group. He said that the group operated secretly inside Rwanda. He claimed that he spoke to friends about the group and recruited some people to the party.
In submissions provided to the Tribunal on 9 July 2019 the applicant said that he had been in contact with [Mr C] by telephone or online several times a year after October 2010, but they had to be cautious about discussing politics. During this time he gradually formed the view that the RFP was corrupt and that the RNC was the best organisation to bring change to the country. By October 2012 he had declared his support for the group. While in [Country 3] in October 2012 he spoke to [Mr C] by telephone and [Mr C] tried to persuade him to defect from the RPF and remain in [Country 3] to work with the RNC. He told [Mr C] that he agreed with the aims of the group, but he had already made plans to study in Australia so it made more sense for him to work for the RNC in Australia.
The applicant said that in 2014 he asked [Mr C] to send him a [Country 3] RNC membership card to prove his membership of the RNC to [Australian State 1] Chapter of the group. He received the card in about September 2014. He assumed his details had been entered on the RNC database in March 2012 and that he became a member of the group at that time because the card was dated March 2012. However, he later learned that there was no membership database and the card was dated March 2012 because that was the date it was printed. He said that his association with the RNC prior to arriving in Australia could better be described as that of supporter. The applicant’s representative said that all RNC cards were dated March 2012, apparently because that is when they were printed.
In support of his claim regarding his association with the RNC prior to arriving in Australia the applicant provided the Tribunal with a letter from [Mr C] dated [June] 2019. [Mr C] said that he had been a member of the RNC since it was founded in December 2010. He said that he had first introduced the applicant to the yet to be formed RNC during lengthy discussions held in [Country 3] in October 2010. He did this because he knew the applicant’s views and that he was a member of the RPF and hoped to recruit him. Following this they continued to hold secret political discussions. They also discussed the RNC when the applicant visited [Country 3] in October 2012 and have remained in contact since then.
At the hearing the applicant confirmed that he had first learned of the plan to establish the RNC when visiting [Country 3] in October 2010. Following that he kept in contact with [Mr C] who gave him information about the group. He also obtained information from the internet and by 2012 he was committed to the group. [Mr C] was the only RNC member he had contact with prior to arriving in Australia.
I asked the applicant about his activities as an RNC supporter prior to arriving in Australia. He said that he had spoken to trusted friends and work colleagues who he thought he could influence. However, he did not know whether any of them were members of the RNC because it was not possible to speak openly about these matters in Rwanda. When asked to clarify what he had said to his friends he said that he had spoken about the lack of freedom of speech in Rwanda and the RNC’s policies on reconciliation which he obtained from the internet.

The applicant claims that he was questioned by Rwandan officials in November 2012. In his initial application he claimed that he was questioned more than three times by military intelligence. He told the delegate that he was questioned three times. On the first occasion he was asked why he was no longer active in the RPF and on the final occasion he was detained for 24 hours and told that his interrogators knew that he had met RNC members in [Country 3] in 2012.
In his submissions to the Tribunal the applicant said that [in] November 2012 he was called to a meeting by the head of the RPF branch at his workplace. He was then taken to the offices of the RPF Secretariat where he was questioned by a team of RPF members including [a senior official] of the RPF. They asked him why he had reduced his involvement it the RPF. He said that he still supported the RPF but he had been busy with his family. About a week and a half later the applicant was called to another meeting by the head of his RPF branch. On that occasion he was interrogated by three men he believes were plain-clothed officers of the Rwandan security forces, who accused him of divisionism and being a member of the RNC. He denied these allegations. In late November 2012, the he was called to the RPF Secretariat in Kigali. From there he was taken to an unknown place of detention by men he believes to have been plain-clothed security officials. He was detained in a room overnight, interrogated and accused of having met with the RNC in [Country 3] and of mobilising for the group. He again denied these allegations and he was eventually released.
At the hearing the applicant again said that he was questioned about his lack of involvement with the RNC during the first meeting. He said that on the second occasion he was accused of creating divisionism. He initially said that his interrogators had not raised any specific allegations during that interview, but later claimed that he had been told he was suspected of involvement in the RNC and accused of having contact with the RNC during his visit to [Country 3] in 2012. On the third occasion he was detained for 24 hours and told that the authorities were aware that he supported the RNC and believed he had been in contact with members of the group in 2012.
The applicant claims that a summons dated [January] 2013 directing that he appear at the local police station [later in] January 2013 was delivered to his home after he left Rwanda. In support of this claim he provided a printed form with his name and the date added in handwriting. He told the delegate he believed that the summons was related to his involvement in the RPF.
At the hearing the applicant said that said he did not know why the summons had been issued, but it could have related to the questioning he was subjected to in November 2012 or to the fact that he had left his job. He said that the local area leader had taken the summons to his wife. She told the leader that he had travelled somewhere, but did not say that he had left the country. She had no further contact with the local leader or anyone else regarding this summons following that visit. Later in the hearing the applicant’s wife confirmed that a summons had been delivered to her home after the applicant left, but said that she had not said anything to the person who delivered it.
I noted that the applicant’s name and other details had been hand-written on these documents and observed that it would easily have been manufactured by anyone who had a computer. I observed that it seemed somewhat strange that the applicant would have been allowed to leave the country after being questioned on suspicion of involvement with the RNC only to be summoned to the police station shortly afterwards. I also observed that it seemed strange that nobody had contacted his wife again after the summons was served, particularly as she had not advised them that he had left the country. The applicant said that concerns about him might not have been at a level which warranted stopping him leaving the country. He also said that there were two systems in Rwanda, the police and the military intelligence and the summons could have issued by military intelligence who operated in the manner he had described.
The applicant claims that he requested a leave of absence from his job after arriving in Australia. He provided the department with a letter dated 17 January 2013 in which states that he wanted to requested a leave of absence for a non-specific period. There is no indication of his whereabouts on the letter or of his reason for requesting the leave. He also provided a copy of a response dated [in] February 2013 which denied his request as he had not provided prior notice of is intentions, but also suggests that his request would be considered if he followed official handover procedures. He told the delegate that he had written the letter because he was ashamed of the manner in which he had left Rwanda and he wanted to let his employer that he had left. He said that he had provided the letter to the Department as evidence that he had not left the country in a formal manner. The delegate noted that he had come to Australia on [a] scholarship which required the support of his employer. He said that the process took a long time and they did not know when he was leaving. The delegate noted that his scholarship application gave the date he was due to commence studying.
At the hearing the applicant confirmed that scholarship application was to study a [course] commencing in January 2013 and that the application was supported by a number of his superiors at this workplace. I asked why he had applied for leave of absence from his job in January 2013. He said that did this so that his employer would know he had left the country and said that the letter was intended as his resignation. I observed that the letter did not state that he intended to resign and as he had already been approved to study in Australia and it appeared that he had no reason to seek leave at that time. I also observed that it was difficult to understand why he would have applied for leave if he did not intend to return to Rwanda, as appeared to be the case. Finally, I observed that the letters he had provided regarding his application for leave could have been produced by anyone with access to computer and I doubted that they were genuine. He maintained that his claims were true. Later in the hearing his wife said that she had delivered the letter requesting leave to the applicant’s employer following his departure from Rwanda.
In his application for protection the applicant said that he had been looking for an opportunity to leave Rwanda prior to coming to Australia and that travelling to Australia was his last chance to avoid danger to his life. During his interview with the delegate he said that he left Rwanda in January 2013 to study and because he had received a death threat. When asked why he had not sought asylum during his visit to [Country 3] in October 2012 he said that he had not been threatened prior to November 2012. He was also asked why he had not left Rwanda immediately after his student visa was granted on 3 December 2012. He said that he had followed the instructions of the people in Australia who made the travel arrangements. The delegate noted that he had arrived in Australia in January 2013, but had not applied for protection until January 2015 when his studies were completed and his student visa was about to expire. He said that he had been focussed on his studies and he had not faced problems during that time. When asked for clarification he said that his lawyer would respond on his behalf. No further information was sought or provided.
Findings
For the reasons set out below, I found the applicant’s evidence regarding his political activities and the problems he faced prior to leaving Rwanda to be lacking in credibility.
In the first place, while I accept that the applicant’s father may have been killed during ethnic violence in 1998 and buried in a mass grave I found his evidence relating his complaints about the manner of his father’s burial and his criticism of Rwanda’s reconciliation policies unpersuasive.
As the applicant himself pointed out, raising issues relating to Hutu victims of ethnic violence or the reconciliation process are not acceptable in Rwanda and can cause significant problems. The US Country Report on Human Rights Practices for 2011 confirms that ideas based on “ethnic, regional, racial, religious, language, or other divisive characteristics or public incitement to “divisionism,” where prohibited at that time.
In these circumstances it is not plausible that the applicant faced problems prior to November 2012 or that he would have worked in relatively senior government positions until his departure for Australia or that he would have received a high level of support and assistance from the Rwandan government, including support for a scholarship to study in [Country 2] for a year in 2008, support to attend training and conferences [in Country 3 three occasions in 2010 and 2012 and support for his [scholarship]. I do not accept the applicant repeatedly complained about the manner of his father’s burial or that he openly criticised Rwanda’s reconciliation policies. I find that he concocted these claims to support his application for protection.
Secondly, the applicant has provided differing accounts of his involvement with the RPF. He told the delegate that he had ceased his involvement in 2011 or 2012 because the party did not accept his ideas. However, at the hearing he said that he had reduced his activities in October 2010, but had not resigned from the party and continued to hold the position of [Office Bearer 4] of his branch until he left for Australia in January 2013. I do not believe that the applicant would have continued to occupy the position of [Office Bearer 4] of his branch of the party until his departure 2013 if he had ceased or significantly reduced his participation in party activities in 2010 or if his ideas were unacceptable to the party. I do not accept that the applicant ceased or reduced his activities as a member of the RPF prior to leaving Rwanda. Furthermore, while I acknowledge that people in countries with authoritarian rulers often join the dominant political party in order to pursue a career or to avoid suspicion or problems which those who did not participate in the party sometimes face, the evidence indicates that the applicant sought and held senior positions in his branch of the party until his departure for Australia in January 2013 that that he was a willing and trusted member of the party until that time.
Thirdly, I found the applicant’s evidence regarding his recruitment as a member or supporter of the RNC prior to leaving Rwanda lacking in credibility. He claims he was told about the proposed formation of the group by an old friend in October 2010. As noted above, the RNC was established by former senior members of the RPF in December 2010. It is not plausible that [Mr C] who was not a former senior member of the RPF would have been aware of the plan to establish the group in October 2010.
I also found his evidence regarding his involvement with the RNC between October 2010 and his departure from Rwanda in January 2013 confused and unpersuasive. For example, he told the delegate that the group operated secretly inside Rwanda and claimed that he had recruited some friends to join, but at the hearing he said that he had it was impossible to speak openly about the RNC inside Rwanda and while he had spoken to trusted friends and work colleagues about some political issues he had not spoken to them about the RNC.
I found the applicant’s evidence that he wrongly believed he had become a member of the RNC until sometime after his interview with the delegate in November 2015 when he realised he was only a supporter prior to joining the group in Australia implausible. During his interview with the delegate he stated confidently that he had become a member in March 2012 and described how he had done so. Furthermore, according to his evidence he was in reasonably regular contact with [Mr C] after their meeting in 2010. I do not accept that he was confused about the nature of his association with the RNC prior to his arrival in Australia. I believe that his evidence was confused because his claims regarding his association with the group prior to arriving in Australia are untrue and were concocted to support his claim for protection.
Finally, as discussed below, the applicant claims that it took him some time to find local members of the RNC in Australia and build sufficient trust to be accepted as a member of the group. If the applicant was known to be a supporter of the RNC in [Country 3] they would surely have been able to give him the name of contacts in Australia and vouch for him with local members.
Fourthly, I found the applicant’s evidence regarding his encounters with Rwandan officials in November 2012 confused and unconvincing. His initial application states that he was questioned more than three times, but failed to mention that he was detained for 24 hours shortly before leaving Rwanda. Later submissions state that he was only questioned on three occasions. During the hearing he initially said that his interrogators had not raised any specific allegations during the second interview, but later claimed that he had been told he was suspected of involvement in the RNC and accused of having contact with the RNC during his visit to [Country 3] in 2012. I might perhaps have been prepared to give the applicant the benefit of the doubt in relation to these claims if this was the only problem with his evidence. However this is not the case and after considering all of the evidence I find that these claims were also concocted.
Fifth, I find the applicant’s failure to seek protection in Australia until January 2015, two years after he arrived in Australia and shortly after he completed his studies, a strong indication that he was not fearful of returning to Rwanda when he arrived in Australia.
After considering all of the relevant evidence, I do not accept that the applicant had any involvement with the RNC prior to arriving in Australia or that he was of adverse interest to the Rwandan authorities at the time of his departure for Australia in January 2013. I find that he concocted these claims in order to obtain protection and remain in Australia.
In reaching this conclusion I have considered the summons which the applicant claims was delivered to his house in January 2013. As pointed out at the hearing the document which the applicant provided to support this claim could easily have been manufactured by anyone with access to computer. In these circumstances and in the absence of any credible evidence that the applicant was of adverse interest to the police or military intelligence or anyone else in authority in Rwanda in January 2013, I find it to be a fraudulent document manufactured by the applicant or at his request and I have given it no weight.
I have also considered the letters provided by the applicant requesting leave from his job in Rwanda. He claims that he requested leave because he felt bad about the manner in which he had left and wanted to let his employer know that he had left. However, his employer had approved his application to study in Australia in 2013 and no doubt would have approved of his absence during the period of his studies prior to his departure. In addition, if he was fearful of returning to Rwanda and had no intention of doing so, he had no reason to seek leave. Given the applicant’s willingness to concoct claims and provide false evidence it appears that these letters may also have been fabricated in the mistaken belief that they would somehow assist his case. In any event, neither of them contains any information relevant to his claimed membership of the RNC or problems with the Rwandan authorities and I have given them no weight.
I have also noted the RNC membership card dated March 2012 which he claims was issued in [Country 3]. However, according to the Tribunal, the date on the card relates to when it was printed, not when he became a member and he did not receive it until about September 2014. As the applicant claims that he officially joined the RNC in Australia, I have some difficulty understanding how or why he obtained a membership card issued in [Country 3]. I also note that his name has been added by hand. In any event, in terms of his membership or association with the RNC prior to his arrival in Australia I have given it little weight.
Finally, I have considered the letter from [Mr C] which purports to confirm the applicant’s claims regarding his involvement with the RNC prior to his arrival in Australia. However, [Mr C] appears to be the applicant’s friend and in light of my concerns about the claims made by the applicant and the absence of any other evidence corroborating [Mr C] statements I have given little weigh to his letter of support.
Activities in Australia
Claims and evidence
In his application for protection lodged in January 2015 the applicant made claims regarding his involvement in the RNC in Rwanda. He also spoke about his brother’s arrest or disappearance in May 2014. However, he provided no information about his involvement with the RNC in Australia.
During his interview with the delegate on 25 November 2015 the applicant said that he was a registered member of the RNC in [City 1, Australia]. He said that he did not have an official position in the group, but he had donated money and had also attended meetings at [a senior member’s] house, his own home and in a pub. He said that he was involved in mobilising people by talking to them about the problems in Rwanda and getting them to join the group or make donations.
In a submission to the Tribunal dated 9 July 2019 the applicant said that he met [Mr B] at a Rwanda community event in [City 1] in early 2014. Sometime later when he was reading about RNC activities he realised that [Mr B] was a member of the RNC. In about May 2014 he approached [Mr B] and told him that he would like to become involved in the RNC in Australia. [Mr B] invited him to attend meetings of the group which were infrequent at that time. In about September 2014 he asked [Mr C] to send him a membership card from the [Country 3] branch of the group to help him to build trust with the branch in [State 1].
Sometime around mid-2015 the [State 1] branch of the Australian Chapter of the RNC began to hold bimonthly meetings, sometime face to face, sometimes by teleconference. The applicant attended these meetings and also discussed RNC matters with [Mr B] between meetings. He also made occasional cash donations.
In about May 2016 the applicant became [Office Bearer 5] of the [State 1] branch of the RNC. His protection visa application was refused on 17 May 2016.
In March 2017 the applicant took part in an RNC document translation project involving the translation of sections of RNC policy documents into Kinyarwanda. In support of this claim he provided copies of an email chain and a transcript from a Whatsapp group regarding this project.
In February 2018 the Australia Chapter of the RNC began a Whatsapp group. The applicant participated in the group. In support of this claim he provided copies of a number of screen shots showing the groups communications.
In July 2018 the applicant was elected to the position of [Office Bearer 6] of the Australia Chapter of the RNC.
In November 2018 the applicant attended a cultural festival organised by the Rwandan Australian Association in Brisbane. He was invited to participate in his role as [Office Bearer 6] of the RNC. The festival was also attended by Gervais Condo, the Secretary General of the RNC, who was visiting from the USA.
In February and March 2019 the applicant participated in meetings of the RNC Political Bureau as representative of the Australian Chapter. In support of this claim he provided screenshots of communications with Mr Condo and [another official] of the RNC regarding the meeting.

In support of his claims regarding his participation in the RNC in Australia the applicant provided references from [Mr B] and [Mr A, Office Bearer 1] of the Australian Chapter of the RNC.
[Mr B’s] letter states that he first met the applicant in early 2014 and the applicant told him he was a member of the RNC and wished to join the [State 1] branch in mid-2014. He was initially cautious due to safety concerns but after further discussions trust developed and he invited the applicant to attend meetings of the group. At the time these meetings were not frequent due to low membership numbers. By 2015 the meetings were more frequent and the applicant was more involved. In May 2016 he became [Office Bearer 5] of the [State 1] branch of the group and in July 2018 he was elected [Office Bearer 6] of the Australian chapter of the group. He also said that the applicant was a regular donor to the group.
[Mr A’s] letter states that he first came to know the applicant in May 2016 when he was appointed [Office Bearer 5] of the [State 1] branch of the RNC. It confirms that the applicant was elected to the post of [Office Bearer 6] of the Australia Chapter of the group in July 2018 and states that he contributed to building up the local branch of the group by recruiting new members and raising funds. It also states that he has participated in international teleconferences with the political bureau of the RNC when [Mr A] is not available.
[Mr B] gave evidence at the hearing on 9 July 2019. He said that he had arrived in Australia as a resettled refugee in 2007. He joined the RNC shortly after it was formed in 2010 at the invitation of one of the members of the group. He and others established an RNC group in Australia in about June 2010. At that time it had [number] members. Initially they were involved in recruiting members from the Rwandan community in Australia.
[Mr B] said that he first met the applicant at church in 2014. He was initially wary of revealing his RNC involvement due to the presence of government supporters in the community, but in 2015 came to know that he was a genuine supporter. He said that the applicant was an active member of the group and currently held the position of [Office Bearer 6] in [State 1].
At the hearing the applicant said it had taken him some time to connect with the Rwandan community after arriving in Australia in 2013. He said that he was still in contact with [Mr C] during that time. I asked if he had asked [Mr C] if he knew any members of RNC in Australia. He said that at the time the Australian group was in hiding and [Mr C] did not know any RNC members in Australia. I observed that it seemed unlikely that they would have kept their existence secret from the RNC in [Country 3] and it seemed unlikely that the group in [Country 3] would have been unable to provide him with contacts in Australia. He said that [Mr C] was only an ordinary member.
The applicant said that after arriving in Australia he had searched online for information on the RNC in Australia and had found information on the 2011 demonstration against Rwanda President Kagame when he attended CHOGM. He said that [Mr B] was named as a participant and a member of the RNC. I noted that [Mr B] had told me that RNC had been secret in Australia until 2016. The applicant maintained that [Mr B] had been named in a report as an RNC member in 2011.
The applicant said that he first approached [Mr B] about joining the RNC in 2014 after they met at church, but [Mr B] would not speak to him about the group. The applicant confirmed that he had obtained his membership card from [Country 3] in September 2014 in order to prove his association with the group, but said that he had not shown the card to [Mr B] or asked [Mr B] to confirm his membership of the group with the RNC in [Country 3]. He said that [Mr B] was in hiding and concerned that he might be involved with Rwandan security.
I asked the applicant precisely when he joined the RNC. He said that he started to be active in the Australia chapter of the group in May 2015 when [Mr B] accepted that he was a genuine supporter of the group. He said that he received his membership card from the Australian group at the end of 2015. The applicant said there were about [number] members of the [State 1] branch in 2015 and they usually met once every two months.
The applicant said that in 2016 he was elected to [Office Bearer 5] of [State 1] of the group. His main duties involved recruitment and raising funds from donations for national and international activities of the group. He also [participated in] meetings of the group. He continued these activities in 2017 and began to make larger donations to the group. Meetings became more frequent as the membership grew. Members discussed developments in Rwanda and the regions and activities such as fundraising. In 2018 he was elected to the role of [Office Bearer 6] of the Australian Chapter. In this role he was involved in organizing at the national level and also represented the Australian chapter in discussions with other chapters of the group.
I asked the applicant to tell me about the goal of the RNC and how the group planned to achieve those goals. He said that they aimed to bring democratic change to Rwanda through diplomacy and political dialogue. They tried to put pressure on the Rwandan government to enter talks with the opposition by talking to international groups and government to support their cause. I asked the applicant about the diplomatic activities of the Australia chapter. He said that [Office Bearer 5] of the group wrote letters to parliamentarians and others, but he was not involved in this work. He said that it was difficult to engage in these activities because the Rwandan community in Australia was divided and some supported the government
I asked the applicant about his involvement with the Rwandan Australian Association of[Australian State 2]. He said that this group was not a political organization, but he had been invited to attend their festival in November 2018 in his capacity as a leader of the RNC. I noted that it appeared that the honorary Consul for Rwanda had also been invited and that it seemed unlikely that the group would have invited both a representative of the government and a member of the RNC. He said that the group had wanted a broad representation of Rwandans in Australia. He said that the General Secretary of the RNC Mr Condo had attended the event and the RNC members who were present had held a meeting at which he spoke.
The applicant provided a reference dated [June] 2019 from [Mr B]. It states that he met the applicant in early 2014. In mid-2014 the applicant told him he was a member of the RNC and wished to join the [State 1] branch. [Mr B] was cautious due to safety concerns but after further discussions and checking his references trust developed and he invited the applicant to attend meetings of the group. At the time these meetings were not frequent due to low membership numbers. By 2015 the meetings were more frequent and the applicant was more involved. In May 2016 he became [Office Bearer 5] of the [State 1] branch of the group and in July 2018 he was elected [Office Bearer 6] of the Australian chapter of the group. He also said that the applicant was a regular donor to the group.
The applicant also provided a letter from [Mr A, Office Bearer 1] of the Australian Chapter of the RNC. It states that he first came to know the applicant in May 2016 when he was appointed [Office Bearer 5] of [State 1] branch of the RNC. He confirmed that the applicant was elected to the post of [Office Bearer 6] of the Australia Chapter of the group in July 2018. He said that in addition to contributing to building up the local branch of the group by recruiting new members and raising funds the applicant has participated in teleconferences with the political bureau of the group when he ([Mr A]) is not available. The letter states that members of the RNC including the applicant are at risk of serious harm but provides no examples or supporting evidence.
The applicant provided print outs of what appear to be whatsapp groups involving the RNC –Australia Chapter or Gervais Condo and people from a number of different countries. The applicant provided what appear to be an emails and online conversation about preparation or translation of documents in early 2017.
The applicant provided bank statements which he claims provide evidence of donations to the RNC. Most deposits appear to be into accounts held by individuals.
Findings
I have a number of concerns about aspects of the evidence provided by the applicant regarding his involvement with the RNC in Australia. For example, as discussed above, I believe that he was an active member of the RPF until his departure from Rwanda and I do not accept that he had any involvement with the RNC before he arrived in Australia. It follows that I do not accept that he intended or wished to join the RNC when he arrived in Australia. In addition his evidence regarding the manner in which he learned that [Mr B] was a member of the group was unconvincing. According to [Mr B] the RNC operated in secret prior to 2016 and it is not plausible that the applicant would have been him identified as a member in a report on the 2011 demonstration against Present Kagame. The applicant’s failure to apply for protection until January 2015 and the absence of any mention of his involvement with the RNC in Australia in that application also casts doubt on his claim that he first sought to join the group in 2014.
The applicant’s willingness to provide false evidence and the fact that he first became active in the RNC after he applied for protection and increased his role after his application was refused by the delegate could suggest that he became involved with the group in Australia in order to support his claim for protection in Australia. However, it is also possible that his anti-government views developed after he arrived in Australia and he embellished his claims in the mistaken believe that this was necessary or would assist his cause. His account of his current involvement in the group was convincing and, more significantly, he has provided supporting statements by leading members of the group in Australia which confirm that he is a committed and active member of the group. In these circumstances I am prepared to extend the benefit of the doubt and accept that, whatever his original motivation for joining the group, he is now genuinely committed to its goals. I accept that he holds the positions of [Office Bearer 5] of the [State 1] Chapter and [Office Bearer 6] of the national organisation and that he is involved in activities such as fundraising and recruiting for the group. I also accept that his involvement is known by many people in the Rwandan community in Australia and it is therefore highly likely that the Rwandan authorities have been informed of his role by pro-regime members of the community.
DOES THE APPLICANT HAVE A WELL-FOUNDED FEAR OF PERSECUTION IN RWANDA?
After considering all of the evidence I am satisfied that the applicant is a member of the RNC and that he holds a senior position in the group in Australia. I am also satisfied that the Rwandan authorities would be aware of his membership of the group. It is clear from the country information set out above that the Rwandan authorities are likely to detain people they suspect of involvement with the RNC. The evidence also suggests that political detainees are at risk of suffering ill-treatment or torture. In these circumstances I am satisfied that the applicant faces a real chance of suffering serious harm amounting to persecution for reasons of political opinion if he returns to Rwanda within the reasonably foreseeable future and that he would not be able to seek protection from the Rwandan authorities.
DOES THE APPLICANT HAVE THE RIGHT TO ENTER AND RESIDE IN A COUNTRY OTHER THAN AUSTRALIA?
As noted above, the delegate found that the applicant was not owed protection in Australia because Rwanda is a member of the East African Community and treaties signed by the member countries provide for freedom of movement. She noted that citizens of members countries were routinely granted permission to remain in EAC countries for up to six months which in her view equated to right to enter and reside’ as per subsection 36(3) of the Migration Act.
Subsection 36(3) of the Act provides that Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia. Subsection 36(4) and (5) provide that s.36(3) does not apply if the non-citizen has a well-founded fear of persecution in the country in which they have a right to reside or a well-founded fear that that country will return them to a country where they have a well-founded fear of persecution.
Relevant country information
The EAC Treaty which came into force in July 2000 included an agreement to establish a protocol concerning free movement. Article 7(1) of Protocol on the Establishment of the EAC Common Market (the Protocol) which came into force on 1 July 2010, states that the partner states guarantee free movement of persons who are citizens of the other Partner states.[6]. The Free Movement of Persons Regulations sets out five categories of persons eligible to enter and remain temporarily in a partner state, including visitors and persons entering a partner state for any other lawful purpose, other than as a worker or self-employed persons for whom separate regulation apply.[7] Visitors are generally provided with a pass for up to six months provided they are in possession of an appropriate identity document, which appears to include national passports or identity cards.[8]
[6] East African Community, East African Community Common Market (Free Movement of Persons) Regulations, Annexure 1 Regulation 4, East African Community Common Market Protocol (Simplified) at 7,
[8] East African Community Common Market (Free Movement of Persons) Regulations, Annexure 1 Regulation 4, East African Community Common Market Protocol (Simplified) at 7, see also Daily Nation (Kenya),You don’t need passport to travel all over East Africa, 19 February 2014, >
According to the EAC website, Common Market Protocol allows workers from any Partner State to accept employment within any other EAC country. They cannot be discriminated against on the basis of their nationality, have the right to social security benefits and can be accompanied by a spouse and children. However, it also notes that employment in the public service is excluded unless permitted by the particular State and lists categories of works which states have committed to open up. The main category in all EAC states is professionals. The evidence also indicates that procedures for recognition of professional qualifications are in place. Workers who have a contract of employment for more than 90 days must apply to for a work permit within 15 working days from the date of entry. EAC citizens have the right to establish their business in any Partner State and pursue economic activities in accordance with the national laws of the Partner State.
While the EAC website appears to suggest that obtaining permission to work is straightforward, in a press release issued in July 2018 Deputy Secretary General noted that over 100 national laws including those relating to free movement of persons and free movement of labour needed to be reviewed to conform to the EAC Protocols and named regulations put in place by countries concerning immigration, customs and other cross-border procedures as barriers to progress.[9] Other reports state that procedures for obtaining work permits differ from one country to the next and are often complex and time consuming and some suggest that national legislation regarding work permits is used to deter cross border movement.[10]
[9] EAC Website, EAC Partner States need to harmonise 100 laws to conform to the Common Market Protocol, 17 July 2018,
[10] The Star, EAC states need to harmonization of their citizens' work permits, 21 June 2014, and The Daily Monitor, AC work permit disparities hurt integration, 9 October 2012, >
There are credible reports of the Rwandan government pursuing, threatening and killing or attempting to kill high profile dissents residing outside Rwanda, most notably in South Africa and Uganda.[11] A March 2014 report by the Canadian Refugee and Immigration Board cites media and human rights reports of attacks and threats on Rwandan dissidents living abroad including in in Kenya, Uganda, South Africa, and in Europe.[12] The Rwandan government has also pressured the governments of Uganda and South Africa to expel members of opposition groups living in exile.[13]
[11] See for example, Rwandan soldiers behind SA shooting, court told, The Mail and Guardian, 29 June 2011 Shooting death of Rwandan exile in Cape Town could be Pandor’s first big diplomatic test, the Daily Maverick, 3 June 201 Suspects in murder of ex-Rwandan spy chief 'directly linked to Kigali' The Guardian 18 April 2019 and Human Rights Watch, Rwanda: the Rwanda National Congress (RNC), including information on its structure and leaders; treatment of RNC members by the government, Research Directorate, Immigration and Refugee Board of Canada, Ottawa, RWA104829.E 26 March 2014 align="left">[13] ‘25 years after genocide, Rwanda's Kagame is praised, feared’ 2019, National Post, 9 April <>
Reports suggest that Rwandans living abroad frequently believe that they are being monitored by the Rwandan government. According to a dissertation by a Western Michigan University student Rwandans living abroad, experts believe that the Rwandan government actively monitor those Rwandans they consider to be dangerous, for example former senior RFP members and those expressing opinions which might be picked up by the media or might influence the policies of donors. Other informed observers suggest that the Rwanda government does not have the ability or resources to actively monitor ordinary Rwandans. However, some note that RPF members living outside the country were likely to report activities in Rwandan community abroad to party officials in Rwanda. A recent article on the ABC website[14] reports on allegations of spying in Australia by Rwandan students, asylum seekers and refugees.
[14] Spies in our suburbs: Unearthing an alleged shadowy network of spies and their efforts to silence dissent. ABC 25 August 2019 type="1">
Uganda, Tanzania and Kenya are parties to the Refugee’s Convention and are hosts to large populations of refugees and displaced persons.
A paper published in Belgian academic journal in 2017 referred to ‘forced repatriation’ of Rwandan refugees from Uganda. It suggests that Rwandan refugees were put under pressure to return to Rwanda by officials who told them Rwanda was safe, and by losing land for cultivation and having food aid taken away from them. Some refugees gave evidence of Rwandans being forced at gunpoint on trucks to return to Rwanda.[15]
[15] Ahimbisiwe, F, Institute of Policy Development and Management, University of Antwerp, Rwandan Refugee Rights in Uganda: Between Law and Practice- Views from Below, 2017, >
According to an article by the International Refugee Rights Initiative published in 2018 protection of politically active or politically sensitive exiles is repeatedly compromised for political reasons in East Africa as host governments fail to prevent, and sometimes even facilitate, the abductions and extraditions of foreigners eligible for international protection. It reports that Rwandan refugees in Uganda have long been the target of harassment by the authorities of their home country.[16]
[16] International Refugee Rights Initiative (IRRI), Preventing illegal extraditions, refoulment and cross-border protection in East Africa, 31 January 2018, >
In 2010 Amnesty International reported of the return by Uganda of 1700 Rwanda failed asylum seekers and refugees some of whom were forced onto trucks at gunpoint.[17] In 2013 Tanzania expelled over 14,000 Rwandan immigrants due to conflicts between the two countries. The EAC stated that Tanzania was within its rights to do so, but that the expulsions were not in the spirit of the EAC.[18] In October 2013 the government of Uganda expelled a high-profile Rwandan refugee, Joel Mutabazi, and handed him over to Rwandan security forces.[19]
[17] Amnesty International, Amnesty International Annual Report 2011 – Rwanda, 13 May 2011,
[18] Uganda Radio Network, Rwanda Tanzania to meet over refugee expulsion, 10 September 2013, Reuters, applicant’s submissions
In submissions to the Tribunal the applicant’s representative argued that s 36 (3) did not apply because the evidence suggested that the applicant did not have a right to enter and reside the countries in the EAC, because he had a well-founded fear of persecution in relation to countries in the EAC as Rwanda pursued dissidents living there and because he had a well-founded fear that they would be returned to Rwanda if he sought to reside in another EAC. The submission referred to evidence which it was submitted demonstrated that the relevant treaties and protocols had been ratified by member states and that national laws continued to limit freedom of movement and rights of residence in various ways. In particular it submitted that the as a matter of practical reality only those who another EAC country with an employment contract have a right to residency.
The submission also notes that the right to reside in an EAC country is dependent on the individual in question possessing a valid passport for one of the member states. It notes evidence that the Rwandan government has revoked passports of family members of RNC activists and tried to force asylum seekers in Zambia to sign a document stating that they were not refugees and praising the RPF in order to obtain Rwandan travel documents. It notes that the applicant’s passport has expired and submits that he is unable to renew his passport or obtain any other identity document from the Rwandan authorities because of he has a well-founded fear of persecution at the hands of those authorities.
The submission notes evidence of Rwanda interference in the sovereignty of other neighbouring countries and of threats and attacks on Rwandans living outside Rwanda, particular in neighbouring countries and argues that the applicant has a well-founded fear of persecution in other countries in the EAC because of this.
The submission argues that even if the applicant is able to enter another EAC state for up to six months there is a real chance that he would not be able to remain beyond this period and he would likely be obliged to return to Rwanda at the end of that period to acquire or renew documents needed to enter or reside in another EAC country. The submission also argues that refoulement to Rwanda from other EAC states is a real possibility for people such as the applicant, particularly as President Kagame is currently the Chairperson of the Summit of EAC Heads of State in February 2019 and has been active in seeking arrangements for the return of his critics to Rwanda in the past. The submissions notes that these issues were considered in a decision of a differently constituted Tribunal in December 2017 and that after considering country of origin the Member concluded that there was a real chance that the applicant would be unable to remain in an EAC state following the expiry of the initial temporary visa and would face return to Rwanda.
At the hearing I noted that it appeared that the applicant had right to enter and reside in countries which are part of the EAC. I observed that his representative had provided submissions regarding this possibility which I would take into account when considering his case. I asked if he would like to add anything in particular in regard to his personal circumstances which meant that he would not be able to reside in another country in the EAC. He said that while it was true that he would be able to enter the other countries in the EAC members of the RNC who lived in those areas had been killed and he would be at risk of similar harm if he attempted to reside in the region. I asked if he had evidence that ordinary members of the group would face this possibility. He said that was not an ordinary member of the group. He also said that he believed it was likely that the Rwandan government would be aware of his involvement with the group given his role as an office bearer and the presence of government supporters in Australia.
Consideration of the applicant’s submissions
The available evidence indicates that it is relatively easy for EAC citizens to enter other EAC countries and remain of periods of up to six months. The applicant has previously entered both [Country 4] and [Country 5] without experiencing difficulties and agreed at the hearing that he could be able to do so in future. Furthermore, it appears that a passport is not necessarily required for EAC citizens to enter partner states. Furthermore, while it may be that permission to work and reside for longer periods can be difficult for some, the evidence indicates that people with professional qualifications such as the applicant are in demand in most EAC countries. In these circumstances, I find that he has not taken all possible steps to avail himself of a right to enter and reside in a country apart from Australia
As noted above section.36(3) does not apply if the non-citizen has a well-founded fear of persecution in the country in which they have a right to reside or a well-founded fear that that country will return them to a country where they have a well-founded fear of persecution.
The applicant claims that he would be at risk of harm from the Rwanda government in all EAC countries because of his involvement in the RNC and that he would also be at risk of refoulment from any of countries in the EAC to Rwanda.
As discussed above, there is evidence of the Rwandan authorities pursuing, threatening and in some cases abducting or killing dissents who reside in countries in the EAC. It appears that those targeted have generally been more high profile people who had occupied significant or senior positions within the Rwandan government, but some reports suggest that others who have people who speak out against the Rwanda regime may also face threats and perhaps physical harm from agents of the Rwandan government in other EAC countries. The evidence also suggests that outspoken or politically active Rwandan exiles in EAC countries may be at risk of refoulment as a result of pressure from the Rwandan government, even if they are seeking or have been granted international protection.
In these circumstances I accept that there is a real chance that the applicant would face persecution from the Rwanda government if he sought to reside in another country with the EAC. I also accept that he would not be able to obtain protection from the governments of other nations within the EAC and would face a real chance of being refouled to Rwanda where he faces a real chance of experiencing persecution for reasons of his political opinion. I am therefore satisfied that section 36 (3) does not apply in the applicant’s case.
CONCLUSIONS
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the applicant’s wife and children are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s.36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Roslyn Smidt

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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

United Nations Security Council 2018, Letter dated 18 December 2018, 31 December, p. 9-10 <

[2019] AATA 6658

26 August 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Standing

Statutory Construction