1611482 (Refugee)

1611482 (Refugee) [2019] AATA 6135 (31 July 2019)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611482
COUNTRY OF REFERENCE:                   Rwanda
MEMBER:Joseph Lindsay
DATE OF DECISION:  31 July 2019
DATE CORRIGENDUM
SIGNED:6 August 2019
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

The words “For the following reasons, the Tribunal has concluded that the decision under review should be affirmed” in paragraph 10 should be replaced with “For the following reasons, the Tribunal has concluded that the decision under review should be remitted with a direction that the primary applicant meets s 36(2)(a) of the Migration Act 1958 and that the other applicants satisfy s.36(2)(b)(i) of the Migration Act 1958.”
Joseph Lindsay
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1611482
COUNTRY OF REFERENCE:                   Rwanda
MEMBER:Joseph Lindsay
DATE:31 July 2019
PLACE OF DECISION:  Melbourne
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.

Statement made on 31 July 2019 at 2:20pm
CATCHWORDS
REFUGEE – protection visa – Rwanda – race – Tutsi – particular social group – survivor of genocide – failed asylum seeker – imputed political opinion – testimony against Interahamwe agents of genocide – testimony in Gacaca courts – fear of killing by Hutu extremists – threats of sexual violence – evidence of medical treatment – delay in leaving Rwanda – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1
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 30 May 2014 and the delegate refused to grant the visas on 22 July 2016.
The applicants, specifically [the applicant’s name] and [her husband] but not their children, appeared before the Tribunal on 24 September 2018 and 27 February 2019 to give evidence and present arguments. [The applicant] also attended the Tribunal for a short hearing on 24 July 2019.
The applicants were represented in relation to the review by their registered migration agent. [The applicant] and [her husband] spoke English in the hearing but were assisted by the interpreter as required.
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
On 27 July 2016, the applicant made application to the Tribunal seeking review of the delegate’s decision. As part of that application the applicant enclosed a copy of the Department’s decision dated 22 July 2016. The delegate’s decision revealed that further claims were made during an interview with the delegate on 14 December 2015.
Some background in respect to the applicant’s migration history is as follows. [In] January 2012 the applicant’s husband arrived in Australia on a student visa. [In] September 2012 the applicant and her daughter arrived in Australia on student visas issued on the basis of the relationship to the applicant’s husband. On 30 May 2014 the applicant along with her husband and daughter together lodged an application for protection. On [date] applicant gave birth to her son and he has also been included in the applicant’s protection application.
The applicant and her husband and two children claim to be citizens of Rwanda. The applicant provided to the Department Rwandan passports in respect to herself, her husband and her daughter. The applicant indicated that she was born in [Country 1]. The applicant’s husband claimed to be born in [a named country]. The applicant claimed her daughter was born in Rwanda. Based on the information that the applicant provided the Tribunal accepts that the applicant and her husband and daughter are citizens of Rwanda. The applicant’s son is not an Australian citizen but Rwandan legislation provides that a child born outside Rwanda is a Rwandan citizen if one of their parents is Rwandan. Accordingly, the Tribunal accepts the applicant’s son is a citizen of Rwanda.
Protection claims
The applicant’s protection claims can be summarised as follows.
Claims from 2014
In her written claims from 2014, she claimed she is a Tutsi who claimed to be a survivor of genocide. She claimed that in 2004 she participated in community courts known as “Gacaca” courts. She claimed that she took part in those courts by giving testimony against those (called “Interahamwe”) who killed her family members during the Rwandan genocide in 1994. She claimed that in 2005 people started to harass her. She claimed that she was often confronted by men she did not know who insulted her and threatened to kill her or rape her. She claimed there was one incident in 2008 when she was assaulted in public by a man she did not know but that on that occasion strangers intervened. She claimed that this man ran away but promised to come back and kill her and that he said to her she did not deserve to be alive like those members of her family who were killed during the genocide. She claimed he told her he would ensure her life in Rwanda would be a living hell. She claimed that this experience and trauma wanted her. She claimed that she feared if she went back to Rwanda that both her and her daughter would be killed by Hutu extremists. She claimed that the Hutu extremists are still hunting her and the Hutu extremists told her mother that they knew she was in Australia and that they would wait for her and her daughter and her husband to return to Rwanda, at which time they all (the applicant, her husband and her daughter) would be killed. She also claimed she feared if she went back to Rwanda but there were anti-Tutsi elements in the Rwandan government who may also harm her in collaboration with the police or security services. The applicant did not think that the Rwandan authorities would protect her if she returned to Rwanda.
Claims made to the Delegate on 14 December 2015
In the interview with the delegate the applicant and her husband claimed that before coming to Australia they lived in Kigali and when she started having problems she was in hiding herself for two to three days in different places although her home address remained in Kigali.
The applicant claimed she started moving around in July 2005 when the people the applicant had testified against started being sentenced. She claimed that this was when the situation worsened for her. The applicant claimed that she moved around from July 2005 until she came to Australia including the period after her marriage. The applicant claimed her mother and siblings did not want her to testify in the Gacaca courts. The applicant’s husband moved to Kigali in 2008. The applicant indicated that the genocide started in 1959 and that her grandfathers were killed in the early 1960s. She indicated she was determined that the people who killed should pay for what they did. She claimed she felt compelled to take part in the Gacaca courts to honour the memory of those who died for nothing. In speaking up she indicated she was honouring her father who was no longer alive as this was what he wanted and honouring the people killed even those who weren’t her family members. She indicated her family think she is a troublemaker and crazy.
She indicated that in the genocide her uncle’s aunts and cousins were killed. She indicated the people who are killing are still not satisfied.
The applicant indicated that she did not herself personally witness the genocide because she was in [Country 1] at the time. She heard about what happened. She indicated she knew what happened because her father had been gathering information about how the family died. The applicant spoke about what she heard or had been told.
The applicant indicated she accompanied her father when he spoke to the Gacaca court in 2002. She indicated that in 2004 her father was sometimes unable to attend and so she spoke on his behalf however her father died [in] 2004.
The applicant claimed to have spoken at three different Gacaca courts. She indicated that in July 2005 three people she spoke out against was sentenced to life imprisonment.
The applicant referred to incidents of claimed harm. She indicated the first assault was in March 2008 by one man. She indicated this happened around 11 o’clock and that the applicant was coming from a [location]. The applicant claimed that the man hit her and told her she did not deserve to be alive. She indicated they started arguing but then strangers intervened and the man ran away.
The applicant referred to a second assault she claimed happened to her [in] August 2008 when she was on the way to the market. She indicated that this attack was a more serious attack and this time by two men. She indicated that the men said they would kill her and make her disappear. She indicated they showed her a gun and one of them hit her on the head which made her dizzy. She indicated she fell down and hit her head. She indicated the men started kicking her. She indicated that she was unconscious for two hours. She indicated she did not know who took her to hospital but that she was in hospital for a week. She indicated she then stayed at home for one month. She claimed that a police officer rang her and told her to come to the police station where he warned her that she had learned her lesson and now she needed to shut up. The applicant indicated she continued to speak at the courts after this incident. The applicant indicated that her only injury from the first assault in 2008 was bruising to which she applied ice. She indicated the police were called by people who were there and that she made a statement. She indicated that after the assault in August 2008 she made a statement to police while she was in hospital. She indicated the only other time she was attacked due to the evidence she gave at courts was in February 2009. The applicant indicated she was attacked around 9 PM and the person was completely covered. She indicated that she started screaming and was threatened with a knife. The applicant indicated that the man told her she needed to go to the Gacaca Court and withdraw her testimony but that other people intervened and, after slapping her, the man left. She indicated that the police came and took a statement.
The applicant indicated that after the first people were sentenced in July 2005 there was graffiti on her house. She indicated that she is on medication for her mental health issues. She indicated that since she has been in Australia a mother has received calls asking when she would be returning to Rwanda. She indicated that when she came to Australia she intended to stay only for the length of her student visa but that she changed her mind when her mother told her what was happening. She indicated that people she knew were in the same situation had been killed one in February 2014 and one in February/March 2014.
On 18 September 2018, the applicant’s representative provided a number of documents, including:
i) Submission from representative
ii) Statutory Declaration of [the applicant] dated 14 September 2018
a. Annexure DU-1- Statutory Declaration dated 19 June 2015
b. Annexure DU-2 - Original hand-written statement undated
iii) Photos relating to para [57] of Statutory Declaration of [the applicant] dated 14 September 2018
iv) Photo relating to para [58] of Statutory Declaration of [the applicant] dated 14 September 2018
v) Statutory Declaration of [the applicant’s husband] dated 14 September 2018
vi) GP Report of [Doctor A] dated 8 November 2017
vii) GP Report of [Doctor A] dated 9 September 2018
viii) Psychologist letter of [Psychologist B] dated 12 January 2018
ix) Psychologist letter of [Psychologist B] dated 6 December 2018
x) Psychiatrist letter of [Psychiatrist C] dated 13 November 2017
xi) [Agency 1] Counsellor letter of [Counsellor D] dated 10 November 2017
xii) RRT Case Number 071825235 [2008] RRTA 183 (13 May 2008)
The representative’s submissions are as follows:
PRE-HEARING SUBMISSIONS
1. The applicants are originally from Rwanda. The second named applicant, [named], arrived in Australia [in] January 2012 on a Student [visa] and through [a study program]. The primary applicant, [named], and her daughter, applicant three, applied for a Dependant Student Visas on 14 June 2012 on the basis their relationship to applicant two, and these visas were granted on 3 July 2012. They arrived in Australia [in] September 2012.
2. Applicants one, two, and three applied for Protection (Class XA subclass 866) visas on 30 May 2014. Applicant four was added to this application on [date], after her [birth].
3. Applicants one and two attended an interview at the Department of Immigration and Border Protection on 14 December 2015. Their application for Protection Visas was refused on 22 July 2016. The applicants applied for merits review of this decision within the specified statutory period.
Summary of the applicants claims
4. The first and second named applicants’ claims were set out in their original protection visa application forms, their statutory declaration dated 19 June 2015 and during the interview with the delegate of the Department. The applicants’ claims are further clarified and explain further in their statutory declarations dated 14 September 2018. These claims can be summarised as follows:
a. Applicant one contends she is at a real chance of significant or serious harm on account of:
i. Her Tutsi ethnicity
ii. Her membership of particular social groups:
1. Genocide survivors
2. Witness of the Gacaca courts and Hutu trials
3. Failed asylum seeker
4. Returnee from the west
b. Applicant two contends he is at a real chance of significant or serious harm on account of:
i. His Tutsi ethnicity
ii. His membership of particular social groups:
1. Genocide survivor
2. Close family member of Gacaca court witness and testifier
3. Failed asylum seeker
4. Returnee from a western country
c. Applicants 3 and 4 are members of the same family unit.
d. There fear of harm extends throughout Rwanda. There is no safe relocation alternative, and/or it would not be reasonable in the circumstances of applicants.
e. The state is either unwilling or ineffective at preventing harm befalling the applicants.
f. In the alternative the applicants claim that they would be at a real chance of significant harm upon their return to Rwanda.
Matters accepted by DIBP
5. In the decision record dated 22 July 2016, the matters accepted by the delegate can be summarised a follows:
a. The names and ages of all four applicants, their identities as Rwandan citizens and Tutsi ethnicity were accepted.
b. All four applicants are members of the same family unit for the purpose of section 36(2)(b) of the Migration Act 1958 (Cth).
c. The applicants do not have statutory effective protection in a third country under s36(3) of the Act.
d. People who testified at the Gacaca courts is a particular social group and therefore that membership of this group and the applicant’s race as a Tutsi form the central elements of her claims to protection.
e. The harm claimed by the applicant amounts to persecution.
f. The medical evidence from [Psychiatrist E], [Psychologist B] and [Counsellor F] accurately reflect each professional’s interactions with the applicant, that these professionals have expertise in diagnosing mental health issues, and that the applicant may have experienced traumatic events prior to seeing them.
g. The delegate could not “exclude the possibility” that someone who testified at a Gacaca court could be seriously harmed because of their testimony or because they are Tutsi.
h. There are reports of harassment and intimidation of genocide survivors.
i. The first named applicant returned to Rwanda with her family in 1994 shortly after the genocide and the first named applicant could give evidence at the Gacaca courts even though it would have all been hearsay evidence.
j. The first named applicant could not travel to Australia at the same time as applicant two.
• Specifically, the delegated noted “I consider that in the circumstances, when a genocide survivor or a ‘person who testified at the Gacaca Courts’ is seriously harmed it is not always clear whether their ethnicity was part of the reason for the harm or not. It is possible the harm to survivors or witnesses may simply be a continuation of earlier targeting of Tutsis and unrelated to involvement in court proceedings.”
Matters not accepted by DIBP
6. The claims not accepted by the delegate in this matter and the issues raised in the delegates decision can be summarised as follows:
a. Applicant one was not a credible witness.
b. That the mental health reports do not serve as independent verification that the applicant gave evidence at the Gacaca Courts, or evidence that she experienced serious harm, significant harm or threats in Rwanda or that there is a real chance she will experience such harm on return.
c. The letters from [named] Hospital were found not to be genuine.
d. It was rejected the applicant provided testimonies at the Gacaca courts.
e. It was rejected that the applicant was assaulted or threatened in Rwanda as claimed:
i. March 2008 – attack/harassment by man in the street
ii. [August] 2008 – attack by men resulting in hospitalisation
iii. February 2009 – man attacked her and threatened her with a knife outside her house
iv. December 2011 the applicant’s tyres were punctured and a picture of her daughter was left with a threatening letter, and that these events caused the applicant to have a genuine fear of serious harm in Rwanda.
f. The applicant did not live in hiding after July 2005.
g. That the applicant’s mother has not received threatening telephone calls or enquiries about the applicant’s return to Rwanda.
h. It was rejected that the applicant delayed in lodging a protection visa application because she thought the situation in Rwanda may change before her and her husband’s student visa expired.
i. It was rejected that in February 2014 a friend of the applicant who had also testified at the Gacaca courts was killed, and this made her realise that her and her family were still at serious risk of harm.
General Credibility of the applicant
7. The Tribunal’s Guidelines on vulnerable Persons (‘Vulnerablity Guidelines’) defines a vulnerable person as:
‘6. A vulnerable person is a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed.’1
8. The guidelines note some factors that can impact a person ability to participate in the review process include:
a. Mental illness or emotional disorder: episodes of mental ill health which seriously affect mood (bipolar disorder, depressive illness), grief and loss reactions, depression, thought disorder and difficulties with complex reasoning.
b. Physical disability: problems with mobility and muscle movement, (e.g. paralysis, cerebral palsy) which do not generally affect psychological or intellectual functioning.
c. Acquired brain injury: neurological disorders as a consequence of trauma to the head and/or brain
9. We note that our client’s medical history can be summarised as follows:
a. In 2012 the primary applicant experienced a [medical incident];
b. The primary applicant has been diagnosed in Australia for the following conditions:
i. PTSD
ii. Anxiety
iii. Postnatal depression/ depression
10. The primary applicant has detailed her current mental health treatment in her statutory declaration dated 14 September 2018 at para [38] – [43]. The applicant’s mental health treatment is also supported by the various reports contained on Department file [File number]. The applicant has also provided further reports in support of her review, including:
a. GP Report of [Doctor A] dated 8 November 2017
b. GP Report of [Doctor A] dated 9 September 2018
c. Psychologist letter of [Psychologist B] dated 12 January 2018
d. Psychologist letter of [Psychologist B] dated 6 December 2018
e. Psychiatrist letter of [Psychiatrist C] dated 13 November 2017
f. [Agency 1] Counsellor letter of [Counsellor D] dated 10 November 2017
11. The primary applicant’s current mental and physical health condition as well as her current medication is most neatly summarised in the report of [Doctor A] dated 9 September 2018 at paragraphs [3] – [4].2
12. It is our view that the AAT Vulnerability Guidelines apply to applicant one as a witness. Consistent with these guidelines, the Tribunal in evaluating the applicant’s credibility should have regard to the guidelines set out between paragraph [64] – [94].3
13. Further, with respect to the assessment of primary applicant’s credibility by the delegate, we note that significant weight was placed on the following as the basis for forming a general view of her credibility:
a. The inconsistencies in the medical reports and her written evidence and evidence at interview
b. The ‘apparent’ late disclosure of some incidents at or shortly prior to the interview
c. The genuineness of the hospital documents from Rwanda
d. The delay in departing Rwanda; and
e. The delay in applying for protection whilst in Australia.
14. Our view is that the delegate appears to have completely failed to acknowledge the further written claims provided on 19 June 2015. The applicant has provided a copy of the email sent to the Department on 19 June 2015 attaching her Statutory Declaration dated 19 June 2015. Much of the delegates reasoning was based on credibility concerns that arose as a result of an apparent late disclosure of the claims at the interview. Much this is explained by the fact the delegate did not have regard to the written claims sent to the Department nearly 6 months prior to the interview. All the incidents referenced as being disclosed late were referenced in this Statutory Declaration.
15. Further, the delegate raised concerns as to the document evidence provided, delay in leaving the country and the delay in applying for protection. The primary applicant and the second applicant have provided comprehensive responses to these concerns as they arise in the decision record. The Tribunal should have regard to the applicants’ explanations as set out in their statutory declarations dated 14 September 2018.
16. Given the delegate was not aware of the full extent of the material provided prior to the interview, we submit that the decision of the delegate and the credibility findings are misplaced. Although the Tribunal should have regard to the decision record, no weight should be afforded the adverse credibility findings.
Country information
17. The applicant’s former representatives provided various reports to which the Tribunal should have regard to which are contained in [file number]. Of particular importance is the REDRESS Oct 2012 report titled ‘Testifying to Genocide: Victim and Witness Protection in Rwanda’.4
18. RRT Case Number 071825235 [2008] RRTA 183 (13 May 2008) at page [13] – [19] attached to this submission, helpfully summarises the events leading up to the Genocide in Rwanda and the history of the Gacaca court system and the issues faced by witnesses. We note that the decision is publicly available. The Tribunal in this matter remitted the decision for reconsideration on the basis the applicant met the criteria under Section 36(2) of the Migration Act 1958.
19. Further to the above, in 2008, the ICTR and the Appeals Chamber made multiple consistent decisions refusing requests to transfer genocide prosecution cases to Rwanda,5 on that basis that the fear of witnesses, both inside and outside of Rwanda, undermined the possibility of a fair trial. The ICTR Trial Chamber held that “witnesses in Rwanda may be unwilling to testify for the defence as a result of the fear that they may face serious consequences, including prosecution, threats, harassment, torture, arrest, or even murder.”6 Three primary concerns were raised in these decisions: that Rwanda’s protection service lacked resources and was understaffed; that it relied on reports to the police, which would deter defence witnesses from seeking protection; and that the availability of video-link facilities was not a completely satisfactory means to get testimony of witnesses living outside of Rwanda.
20. In 2011, a Human Rights Watch report titled Justice Compromised: The Legacy of Rwanda's Community-Based Gacaca Courts, 31 May 2011 stated:
“Both genocide survivors and genocide perpetrators worried that speaking about what they knew in gacaca would lead to social ostracism or repercussions from relatives and neighbours or would create problems with local government officials… As community participation declined, local officials and gacaca judges tried to persuade individuals to attend. When persuasion failed, they closed shops on the day of gacaca hearings and threatened to fine residents who failed to attend the sessions. One individual told Human Rights Watch that fines ranged from 1,000 to 2,000 Rwandan francs (up to US$3.30). In certain areas, the local defence forces also went house to house, rounding up community members and bringing them to gacaca. Gacaca judges occasionally used local defence forces to prevent people from leaving gacaca sessions early.
By 2004, the government was so concerned about attendance that it introduced a provision making participation in gacaca hearings compulsory when Parliament revised the gacaca laws that same year.8 Nevertheless, absenteeism increased over the years, particularly as trials dragged on and the deadline for gacaca’s closure was extended several times. In late 2007 or early 2008, judges and local officials lost control over attendance at the weekly sessions and stopped fining individuals for their failure to attend.”9
21. Regarding threats and intimidation of witnesses, the 2011 Report states:
“Threats and intimidation of witnesses, discussed below, also deterred potential witnesses from coming forward. In some cases, witnesses were even killed. According to the government, 120 individuals were killed between 2004 and the end of 2008 because of either their ethnicity or their participation in gacaca – a sharp rise from 42 people killed between 1995 and 2003. The rate of killings more than quintupled during the time of gacaca, with the highest number of deaths in 2006 when trials began nationwide. The government reported that most of the individuals killed were genocide survivors but that a number of Hutu who appeared as witnesses in gacaca were also killed. The highest concentration of killings occurred in the southern part of the country, particularly in the Karongi district around the town of Kibuye. Human Rights Watch was not able to ascertain the number of deaths in 2009, but the Rwandan government appears to have reported six deaths to the US embassy, while Ibuka reported 24.10 As of November 2010, the Victim and Witness Support Unit (“VWSU”) had recorded only one death of a genocide survivor in 2010.”11
“Individuals appearing as prosecution and defence witnesses in gacaca faced intimidation, most often by police and other state agents, but also by genocide survivors and civil parties. In some cases, individuals accused of genocide were believed to be behind the intimidation, targeting community members or witnesses who accused them of crimes. The 2004 Gacaca Law provides that anyone found guilty of exerting pressure on, or threatening, a witness or judge is liable to between three and six months’ imprisonment.12 The punishment is doubled for repeat offenders. Individuals should be prosecuted in the conventional courts under the penal code.13 Where appropriate, a special protection unit in the national prosecutor’s office investigates and prosecutes these cases. In 2009 alone, there were 473 such investigations resulting in 181 cases heard in the conventional courts.
22. In 2014, the Immigration and Refugee Board of Canada reported that the situation for Tutsi survivors has remained "consistently difficult" since the 2012 and the closure of the gacaca courts, with correspondence from research directorates stating:
“There have been reports of ill-treatment, harm and violence against members of the Tutsi ethnic group since the genocide. In most cases, this harm has been carried out by other community members, usually in the context of genocide trials through the gacaca courts or in relation to post-gacaca compensation claims.”16.
23. The U.S. Department of State, Bureau of Democracy, Human Rights and Labor, ‘Country Reports on Human Rights Practices for 2012: Rwanda’ (19 April 2013) states:
“The government investigated and prosecuted individuals accused of threatening or harming genocide survivors and witnesses or of espousing genocide ideology, which the law defines as dehumanizing an individual or a group with the same characteristics by threatening, intimidating, defaming, inciting hatred, negating the genocide, taking revenge, altering testimony or evidence, killing, planning to kill, or attempting to kill someone. From January to September, a special protection bureau in the Office of the National Public Prosecution Authority (NPPA) registered 167 cases of genocide ideology, of which 64 were filed in court, 31 were dismissed, 10 were reclassified, and 62 were pending investigation. From January to September, the courts adjudicated 59 cases (63 individuals), convicting 52 and acquitting 11 (see section 1.e.). Police investigated six murders of genocide survivors. No information was available regarding charges filed, but according to the genocide survivors’ association Ibuka, police arrested suspects in all six cases. On October 1, in Kigali, genocide survivor Alex Rutindura, who media reported was involved in a court case over his parents’ land, survived a machete attack by six assailants, the third attempt on his life in two years.”17
24. The Tribunal should also have regard to the following news articles which indicate that the intimidation and targeting of genocide survivors is still ongoing:
a. - “Demonstration over killings of Genocide survivors” dated 29 Oct 2007
b. - “Two more people killed in Southern province” dated 8 Nov 2007
c. - “Property belonging to witness destroyed” dated 25 Nov 2009
d. - “Genocide survivor found dead” dated 20 April 2008
e. - “Watch out the killers are still out there” dated 4 April 2016
f. - “Police Investigating The Death Of A Genocide Survivor In Gasabo” dated 6 April 2018
25. At paragraph [52] of the primary applicant’s statutory declaration dated 14 September 2018, she notes that [in] April 2017, [a genocide survivor] was killed after she returned to Rwanda. The applicant’s claims are confirmed by several news reports. The East African reports:
“The killing of a genocide survivor in Kigali has sparked public outrage and sent waves of fear among other survivors.
Iribagiza, 58, was killed on April 13 by morning by unknown people who entered her home in Niboye suburb, Kicukiro district, stabbed the watchman several times, broke into the house and tied her up with ropes then strangled her.
The murder happened on the last day of the Genocide Commemoration Week.
Many Rwandans took to social media to condemn the crime.
Rwanda National Police (RNP) confirmed that it had started investigations into the murder of the businesswoman, who is survived by one daughter.
Most of her other family members were killed in the 1994 Genocide against the Tutsi in 1994.
"RNP can confirm that a 58-year old female, a genocide survivor, was murdered in her home by unknown people and we are currently investigating the case. We don't have the motive and the people behind it yet," said spokesperson ACP Theos Badege.
Reports indicate that after the genocide, Ms Iribagiza left the country and settled in Bolivia and Belgium; she returned to Rwanda a few years ago to run a business.The manner in which she was killed left many puzzled.
A local leader told The East African that her body was found in the room with candles lit around it.
The stabbed guard, whom the assailants assumed was dead, was heard groaning in pain by passers-by, who alerted the police.
The national commission for the fight against the genocide (CNLG) condemned the attack.
"We suspect that this is another case of genocide ideology targeting genocide survivors. We have had such cases in the past where genocide survivors are targeted, attacked or threatened. This particular case should be investigated," said Jean Damascene Bizimana, the executive secretary of CNLG.’18
26. Further the Tribunal should have regard to the fact the Rwanda president ordered the release of 2140 convicts. KT Press notes:
“President Paul Kagame has commuted the prison sentences of Ingabire Victoire who had been sentenced to 15 years and singer Kizito Mihigo who had been sentenced to 10 years on various cases.
A cabinet meeting chaired by President Kagame on Friday September 14, approved the early release of 2,140 convicts found eligible under relevant provisions of law.
Both Kizito Mihigo and Victoire Ingabire Umuhoza’s remaining period sentences were commuted by Presidential prerogative following their most recent applications for clemency in June this year.
The relased convicts include 23 from Bugesera district, 447 in Nyarugenge, Musanze (149) Gicumbi (65); Nyanza (63), Rubavu (158), Rwamagana (455) and 24 from Nyagatare district in Eastern Province.
Others are from Huye (484) Muhanga (207), Ngoma (35), Rusizi (7) and 23 from Nyamagabe district in Southern Rwanda.
Articles 245 and 246 of the Code of Criminal Procedure (Law No. 30/2013 of 24/5/2013) provide for the release on parole of a convict who has served at least one-third of a sentence of less than 5 years, or two-thirds of a sentence greater than 5 years (or at least 20 years in the case of a life sentence), provided at least one of the following conditions is met: (1) He or she sufficiently demonstrates good behaviour and gives serious pledges of social rehabilitation; (2) He or she suffers from serious and incurable disease approved by a medical committee composed of at least three recognised doctors.
Article 109 of the Constitution of Rwanda states: “The President of the Republic has the authority to exercise the prerogative of mercy in accordance with the procedures provided for by law and after consultation with the Supreme Court.”
Victoire Ingabire was sentenced to 15 years in 2013 by the Supreme Court, while Mihigo was sentenced 10 years in 2015 by the High Court.”19
Conclusion
27. It is submitted the applicants have a well-founded fear of persecution upon return to Rwanda for reasons that satisfy section 5H(1) of the Migration Act. The primary applicant’s fears are not limited to problems of a private nature but concern her fear of persecution and an absence of effective state protection for Convention reasons. The applicant has been and continues to be involved in raising awareness of genocide survivors and commemorating each the atrocities that occurred in the country. The applicant’s claims are consistent with the country information available. As further prisoners are released, her fears of harm for testifying in the Gacaca courts are not far fetched as this is consistent with the experienced of other documented witnesses in the Gacaca court system.
28. Further the applicants have provided plausible explanations in response to the delegates’ concerns as they arose in the decision record. Many of the delegates concerns were misplaced given the original statutory declaration had not been considered by the delegate. The applicants are both professionals who have excelled in the Australian community, especially given the difficulties the primary applicant faces with her mental health condition. They have been overall consistent in their claims and evidence and should be considered reliable witnesses.
29. In light of the above it is submitted that the Applicant is owed Australia’s protection obligations as a refugee. It is submitted that the Applicant cannot return to Rwanda or safely relocate. The Applicant will be unable to avail herself of the protection of the state.
30. In the event that the Department finds that the Applicant does not meet the refugee definition in of a refugee as set out in the Migration Act, we submit that she should be granted protection under the Complementary Protection regime per section 36(2)(aa). She clearly still faces the risk of significant harm if she were to be returned to Rwanda.

The statutory declaration from the applicant dated 14 September 2018 stated:
I, [name] of [address], [occupation] at [Employer 1], make the following declaration under the Statutory Declarations Act 1959:
1. I am an applicant for review of a decision of the Department of Immigration and Border Protection ("the Department'') to refuse me a Protection (Subclass 866) visa.
2. I make this statement in support of my application for review: In this statement, I intend to provide a response to the concerns raised by the delegate in their decision dated 22 July 2016. I also wish to provide an update of my situation since the decision of the Department.
DOCUMENTS
3. In my decision, the delegate found that my hospital documents from [Hospital 1] were fraudulent. I wish to respond to this.
4. Firstly, the four hospital documents relate to the incident in 2008 and the [medical incident] in 2012 which were sent to the Department prior to the interview on 19 June 2015. They were not produced for the first time at the interview. They were submitted together with the statutory declaration done with our second Migration Lawyer [Lawyer 1]. Annexed to this statement and marked Annexure DU-1 is a copy of the email from my previous solicitor submitting the documents and my previous statement dated 19 June 2015.
5. Official documents in Rwanda are not at the same standards as documents here in Australia. There are no standard templates. Before the genocide in 1994, the official languages were Kinyarwanda and French. After 1994, the language of teaching (high school and universities) and languages used in workplaces (Government institutions, and hospitals) progressively changed to English. It's my understanding medical studies were previously provided only in French and medical doctors were comfortable in French. They are now obliged to work in English. This explains why the written English in the letters from the health professionals is not as good as you may see among health ·professionals in Australia. In Rwanda, you will easily see medical reports or medical certificates wrongly written because doctors think and make a diagnosis in French and translate the technical terms in English for administrative purposes. For example, when the doctor said my mental status was "perfect", it means that he just assessed that I was mentally fine the moment he saw me following the incident. The phrasing is strange, but it is my belief that it is more a language issue.
6. In terms of the logo and appearance of the document, it is still the same issue of not having standard templates for hospital official documents. It could be that the doctor or their reception staff copied the logo from one document and pasted it to a blank word document when drafting a medical report or medical certificate. Then when it was copied perhaps the logo picture was stretched. I know that [Hospital 1] is a very busy hospital located in Kigali capital and not as much care is given to the preparation of documents as compared to Australia. Also, the computer skills for doctors and admin staff in Rwanda at the time were not nearly like they would be here in Australia.
7. In Rwanda, particularly in the public hospitals, there are no standard procedures and documents are not created in the same way as they are in Australia. It is impossible to compare these documents against Australian standards. There were no standard templates the hospitals used, they were just creating word documents and amend them as needed by copying and pasting. These were the documents that I was provided after I was treated.
8. I maintain these documents are genuine, although they may not be at the standard you might expect n Australia now days.
INCONSISTENCIES
Attacks in Rwanda
9. In my decision at page 19-20, the delegate notes that my evidence in my PV application was different to what I provided at my interview. In particular the delegate noted that in my PV forms I mentioned that I was physically attacked in 2008 and I was traumatized after this, but in these forms, I did not mention that I was physically attacked on two other occasions and the forms did not include the details of these attacks. Because I did not explain these other attacks in detail in my PV forms, the delegate believed that this affected my credibility.
I wish to respond to this.
10. When I originally applied for protection I had legal assistance, [Lawyer 2]. I provided to him with a hand-written book with my claims for protection in more details. I had about 8 pages of my claims. Annexed to this statutory declaration and marked Annexure DU-2 is a copy of the hand-written claims that I provided to [Lawyer 2] when he was assisting to complete the PV application forms. The notebook was purchased in 2013 on the advice of my GP to record anything that was worrying me and can be useful in the management of my migraines, anxiety and stress. To date, I still have a copy of the notebook with all the details of my claims.
11. When I provided this to [Lawyer 2], he advised me that I should not provide much detail in writing and that further details can be provided during the interview. He advised me that my written claims should not be more than ½ page otherwise the department would not be interested. He said that he would need to summarize what I said and that is all that was required at this time. I was advised the same in regard to my hospital documents and medical reports referred to above. See page 8, form 866C.
12. I remember the lawyer could not read my hand writing and I offered to type it. The lawyer told me not to worry and he got me to read it out. I remember that he took notes at that time. He then went home and included some of my claims in the protection visa application forms after the meeting with him. Before I left this meeting, [my husband] and I had to sign the forms. He told me he would insert the details that he had wrote down after this meeting. He told me that I could provide all the other details at the interview. At the time I trusted that this was a usually way of preparing the visa application.
13. I mentioned all the three serious incidents that happened to me to the lawyer. I remember the lawyer saying that the most important incident to include in the PV forms at the moment was the one I was physically assaulted in 2008 and ended up in hospital. I also note that all the incidents that happened to me were set out in detail in the second statutory declaration submitted on 19 June 2015 by my representative at the time, [Lawyer 1] from [named firm]. This is discussed further below at [20].
Hospitalization
14. At page 20 of my decision, the delegate notes that the other contradiction that arose was in relation to the period of time I was hospitalized. In my decision the delegate notes that I said I was in hospital for 1 week but also noted that the police saw me in hospital after two weeks in hospital. I wish to clarify this.
15. As I mentioned in my statement dated 19 June 2015 at [17] and at my interview, I was in hospital for 1 week after being assaulted in August 2008. The police came to see me in hospital to take a statement so they could start the investigations. But they couldn't as I was still weak, unable to talk and still shaken. I remember the doctors were concerned about my health so they advised the police officers to leave and come back another day when I am better and said that I needed rest. So the police did not take a proper statement at this time, but before they left, they asked my sister to call them when I am ready to talk. Like the following day, the police called me and spoke to my sister to do a follow up on my case whilst I was in hospital and unwell. After two days, they came back to see if I was ready for a statement but they left again without a statement. As the medical staff advised that I was still too unwell to provide a proper statement. I was still shaken by the attack.
16. After I was discharged, I went to the police station at their request to make an official statement, so they can start the investigations. This was about 2 weeks after the incident and about 1 week after I was discharged. I remember that my brother went with me at this time, but he was not allowed in the room when I provided a statement. At this time, I was frightened and intimidated by the police during this interview as they said things along the lines as they hoped I have learnt a lot from the incident and that I should stop giving testimonies in the Gacaca courts as it was putting myself and my whole family at risk of being hanned and if I continue I will be killed.
Delay in applying for PV
17. In my decision the delegate noted that the fact I did not apply for protection in October 2013 when I heard from my mother that I was in danger, also affected my credibility. I would like to respond to this.
18. I thought that after staying two years in Australia things would improve and I could go back to Rwanda. Even when my mother said that she received anonymous phone calls in October, 2013. It seriously disturbed me and I was bothered by what my mother told me. It affected me that I could not sleep and was having nightmares, severe headaches and constant migraines. I was hoping that people I testified against together with their families would forget about me and that we could move on. I was very scared and concerned at this time but I wasn't focusing on the visa issues, I didn't even know what to do.
19. When I was in Australia whilst [my husband] was doing his [degree], I was having medical problems and mental health issues related to incidents that happened to me in Rwanda. We were not focusing on our visa as the priority was my health. I have had two surgeries in 2013; one at [a named] Hospital in June and another one in December at [another] Hospital. The one in June was in relation to [specified] surgery. The one in December was [another procedure]. By that time, the main issue was my health and I was eventually referred to a psychologist counselor by my GP because they concluded that both my migraines and my mental health issues can't improve as long as I am worried about my short-term visa issues and knowing that I could go back home with what was happening there. It was then suggested later that I needed to resolve my visa status to be safe as this was affecting my mental health as well as my migraines. After receiving the health professional advice to seek legal advice, I started thinking seriously about the visa matters with [my husband]. They were thinking that it could help me to settle and improve both my migraines and mental health. This is how we got in touch with [Lawyer 2] in March, 2014 through one of our friends living here in Melbourne. We lodged our application in May, 2014.
Not providing further claims in writing
20. The delegate noted on page 21 that I didn't mentioned the incident in December 2011 in writing. I wish to respond to this.
21. As mentioned earlier, I did provide this information in writing but the delegate did not obviously consider my statement that was submitted prior to the interview on 19 June 2015.
22. Because we were not comfortable with our first migration agent, we changed our legal representation. Our -new lawyers [at] the time assisted us to prepare a more detailed statement and this was done on 19 June 2015 and submitted to the Department of Immigration on the same day at 2.32PM. This statement set out my claims in more details and it was together with my medical certificates and reports related to both my admission in hospital in August, 2008 and July, 2012. But none of these were considered by the Delegate. Reading the decision refusing my visa, it is like the delegate did not even consider my statement before or after the interview or she simply ignored them.
23. The three incidents are clearly explained at para [17 - 22] of the statement mentioned above.
Addresses
24. In my decision at page 21, the delegate notes that I claimed I was not living at a consistent address following July 2005 after people I testified against were convicted by the courts and the threats started. The delegate notes that I claimed I was in hiding moving every 2 - 3 days and this was inconsistent with the fact that I was able to work with [two named agencies] in Kigali. I wish to respond to this.
25. I believe the delegate took a very strict view and interpretation of what I meant when I said I was in hiding. I was not hiding away from people during this time. What I mean by stating "hiding" is that I modified my behavior. I would regularly change the way I looked and my hair styles as well as my cloths. I have some photos of me through this period where I have changed my appearance. I also did not regularly attend work and would often call in sick as they knew that I had migraines from time to time. I would stay with friends as well as doing field work and not consistently staying in the same spot all the time.
26. From 2005 to 2009 I was living at my mother's place in [Town 1]. I was still single' at that time and living with my family. I didn't feel safe in my house and thought it was risky for the family to stay there the whole time. In addition to the issues in 2005, I felt it was safer from time to time staying with friends and family (in Kigali and outside of Kigali). Also, after I met [my husband] in June, 2006, I would stay with him in [Town 2] from time to time where I would spend one or two nights around end of 2006 and in 2007 in [Town 3] where he was working by then.
27. I did not mean that I was constantly hiding from people from 2005. I did move around a lot and tried not to spend 2 - 3 consecutive nights in the same place. I estimated this was every 2 - 3 days, but this is a rough estimate. I was still able to hold my jobs and move around to different places as Rwanda and Kigali are quite small.
Travelling to other countries to be safe/ delay in leaving Rwanda
28. In my decision at page 20 the delegate notes that I stayed in Rwanda after December 2011 until I was able to come to Australia as dependent on [my husband’s] visa. The delegate noted that if I was genuinely afraid, I should have gone to another country until my visa was granted. I wish to respond to this.
29. When [my husband] left for Australia in January 2012, I went back to my mother's place in [Town 4]. Even though I was really scared about what happened in December 2011, I couldn't just leave Rwanda and live alone without any support with my child. I still continued to attend work although I was attending off and on during this time and sometimes changing my schedule. I would call in sick or would go in countryside for field work. One of my main duties at [named agency] was to [conduct activities] over the [country].
30. You cannot stay in other African countries forever. For many reasons, first of all most of the people who committed crimes in the Genocide and who had the finances available, moved into neighborhood countries like Burundi, Tanzania, Congo, Kenya and Uganda. Secondly, you are only allowed to stay there for few months. Also, there are many people who participated in the genocide all over the region. In Burundi or Congo, it was and is still worse. In Uganda, there are also issues, many genocide perpetrators live there. In Kenya, there are many Genocidaires living there, among them the famous Felicien Kabuga, one of the main sponsors of the genocide. For me to travel and hide in one of the EA Countries was not even an option for me because firstly there was no difference in terms of safety to my country, Rwanda, given so many people involved in the Genocide live in these other countries. The Genocidaires still have the genocide ideology, preach hate and are very organized and well-funded. Also, I wasn't going to leave and live alone there and putting my child at risk.
31. The reason as why I did not leave immediately after being granted the visa in July, was mainly medical. At the time my visa was granted, I had a [medical incident] in July, 2012 and I was admitted in [Hospital 1] for 1 month. After being discharged in August 2012, I was required to undergo intensive physiotherapy twice a day both mornings and evenings at [a medical centre] near my home. [Details deleted]. I told this to the delegate but this is like she didn't even take into consideration that I have had a serious [medical incident].
32. I went for a medical review on 2 September 2012 at [Hospital 1], this is when the doctor told me that I was fit enough and I could go back to work. This is when I gave my resignation letter. I said that I wanted leave without pay. I then left the country few weeks later with my child to join [my husband].
Husband leaving me in Rwanda
33. The delegate also mentioned that it was strange that [my husband] left me in Rwanda given what happened. I wish to explain this further.
34. [My husband] leaving for Australia was a huge decision for us. He spent hours and lots of money preparing this opportunity and eventually he was accepted for [a study] program to do [studies] at [a named] University. He was worried about leaving his farnily at home.
35. I encouraged [my husband] to leave given the opportunity. We talked about my safety with my mum given what happened in December, 2011 and my mum made arrangements specifically for my safety to move to a safer suburb. She left [Town 1] and moved to [Town 4]. [Town 1] is a well-known suburb with high criminality and drug issues. In addition to that, I testified in the [Town 1] courts. But still I did not feel safe as Kigali is a very small city.
36. We spoke with my brother, my Mum and some friends about this and eventually we agreed that I would move to stay at my mum's place before I join him in Australia. This was a huge opportunity for [my husband] to pursue his studies in a field he was already working in.
37. Once he arrived in Melbourne, he started the process of bringing his family knowing that [the study program] policies are very explicit on the point that an awardee has to wait at least 6 months before reuniting with family. You have first to waive any academic condition, enroll at Uni, find an accommodation, and purchase insurance for the family. [My husband] also did an English course for 3 months and passed an ELTS before enrolling. All that process takes time.
Mental health
38. I would like to provide an update on my mental health. My psychologist was [Psychologist B], a psychologist from [a named] Clinic. I was seeing her every month, one or two times depending on her observations on my mental health status. After a couple of sessions, I was unable to continue seeing [Psychologist B] as my lawyer requested a report and we could not afford the cost of the report from [Psychologist B]. Even though I was seeing her under Medicare, I could not afford the cost of the medical report. My GP referred me to – [a named agency at a hospital]. After an initial face to face assessment with a mental health professional, they decided not to enroll me in their program because I was not eligible. They have had some change in eligibility policy. I have an income; have full work rights and Medicare; this made me not qualify for their eligibility criteria. But they knew someone who was working with [Agency 1] before and working privately now but Medicare bulk bill. They referred me to her; her name. is [Ms G] from [an agency].
39. I have also received trauma focused Counselling at [Agency 1]. I was referred there in 2015 by [Psychiatrist E] from [another named] Hospital. I saw [Psychiatrist E] after presenting symptoms of depression, anxiety and post-traumatic stress disorder. They were concerned that I was at risk of post-natal depression whilst pregnant of my second child. I commenced contact with the [Agency 1] Counsellor, [Counsellor H] in 2015 for an assessment and continued to work with her until August 2017. In October 2017, I was allocated a new Counsellor, [Counsellor D] after [a previous counsellor’s] departure.
40. There were changes in [Agency 1] policies regarding who could benefit counselling and, these changes have affected me as I was no longer eligible for the counselling due to the facts that I have work rights and Medicare. The new policy is to provide services to asylum seekers with no income or/ and Medicare.
41. At the time I commenced my treatment at [Agency 1], my GP [Doctor A] continued the management of my medication. [She] increased my medication [two medications] but they were still assessed as not being effective in managing my symptoms. She then referred me to [another service] for Psychiatrist mental health plan update on 15th January 2017. I saw [Psychiatrist C] who decided a change in my medication. [Psychiatrist C] has outlined the change in my medication in his report dated 6th February 2017. I have seen him again after being referred by my GP for review on 13th November 2017 as the symptoms persisted. He increased the dose of [one medication] (up to 200mg) and more recommendations were given to my husband on what to do in case my mental health worsens. A report was sent to my GP.
42. My mental health was already a major problem in Rwanda. I have never received any support. It was affecting me to the extent that I couldn't drive sometimes and was regularly absent from work because of severe Migraines. This was especially the case when [my husband] left. It became extremely hard for me. Around the month of April after [my husband] left in 2012, my GP in Rwanda, [named] referred me to [a named] Hospital to see a neurologist [named] about my severe migraines.
43. When I was seeing my GP in Rwanda for depression and nightmares, I was only prescribed Paracetamol. Sometimes my grandmother will even say that I should try to see a traditional healer, she believed that I was poisoned as most of our eldest believe in traditional healing.
Issues with medical material before delegate
44. In my decision from DIBP at page 10, the delegate notes three issues with the reports that were provided which in the delegates view affected my credibility. I wish to respond to these three issues.
45. Firstly, the delegate notes the report of my Counsellor [Counsellor F] only included reference to one attack that resulted in me experiencing PTSD in contrast to my evidence that I have been attacked three times. I really can't tell why he just mentioned this 2008 incident but my view is perhaps he thought this was the most relevant incident to mention. I remember that with [Counsellor F], I had three sessions where I couldn't even talk and I would just cry. After this, he said that [my husband] needed to attend a session with me and it was from this time I started to be able to talk about how I was feeling. I didn't just go through my whole life immediately with [Counsellor F].
46. Secondly, the delegate notes [Psychologist B] reported that I was hospitalized between 2005 and 2012 in contrast to my evidence that I was attacked three times, twice in 2008 and 2009. Through our sessions, again I really can't recall everything I have said to her. When I was attending the session, I will talk if I can and if I can't she was helping me to get back my calmness. She was saying that I have been affected mentally that even going back and forth at the doctors is a fact to consider seriously. Maybe that's the reason she mentioned between 2005 and 2012. [Psychologist B] has stated that I have been hospitalized multiple times because of attacks. This is incorrect. I was hospitalized once because of an attack and the second time because of a [a medical incident]. I was physically attacked 3 times between 2008 and 2009.
47. Finally, the delegate mentions that none of these reports mentioned the 2011 incident which was the reason for me deciding to make arrangements to leave Rwanda. All the three reports actually mentioned the fear that I had for my daughter's safety which relates to the incident in 2011. The delegate was wrong in this regard and may not have made the connection between my fears for my daughter's safety and the 2011 incident which are one in the same.
Situation in Rwanda
48. There has been a large increase in the number of people who committed crimes coming back in the country from their exile and taking higher positions in the Government (Rwarakabije, Ministers). Others who are imprisoned for Genocide are every year released officially, for medical or elderly reasons. But the real reason is political as they represent a big number to count on during elections and the country is majority Hutu. Many of these people were killers or accomplices during the genocide. The Government is also targeting genocide survivors because they represent a threat to the reputation of the Government. Genocide survivors disagree with many government policies and are strong critics that the government wants to silence. Recent killings and persecutions of prominent survivors are clearly documented.
49. The late Senator and former executive secretary of the National Commission for the Fight Against Genocide (CNLG) Mucyo Jean De Dieu who has been involved a lot with genocide survivors' associations was killed when going to work. His death was suspicious. There are also a couple of businessmen who were killed by the government because they didn't want to work with the ruling party in taking part in its economic ventures or to financially support the last presidential elections or simply because they have shown that they were against the 3rd term of President Kagame. Rwigara Assinapol was killed by the police but officially he was killed in car accident. His widow and children are now being tortured and prosecuted for disputing the official account and seeking for the truth on the death of Rwigara Assinapol. There is also Venutse Rwabukamba the Businessman who was living in Rwamagana district ([details deleted]), late Kayitare who was a military in the Republican Guard. Kayitare is from a family of genocide survivors, [details deleted]. Late Lambert Byemayire the genocide Survivor [details deleted], late Makuza Bertin the Businessman who has helped a lot [deleted] and so many Genocide orphans, Dr Gasakure who was a Father of one of the [specified] families but happened to be a personal Dr of the President, Father Karekezi, a Genocide survivor and another man who has taken the lead and supported a lot [these] activities for example such as paying for genocide orphans school fees. All these people were assassinated by the government operatives and their deaths reported as car accidents or medical conditions. [Details deleted.]
Update since decision
50. [In] May 2017 [my husband’s] father passed away. He was at home sleeping. He had a [medical condition]. He had surgery 5 months prior to this where his leg was amputated. He was [age]. He was at home trying to recover but he unfortunately passed away. [My husband] couldn't return to Rwanda for the funeral. [In] October 2017, [my husband] uncle also passed away. He died at hospital, he was diagnosed with [a medical condition], he wouldn't go home for the funerals as well. Literally, we have been having many deaths of family members, close friends or family friends but it's really another traumatizing and difficult period for us, when everyone is questioning why we can't come home or what are we really doing which is stopping us from attending the funerals.
51. People were saying when [my husband’s] Father passed on that they were going to see if we will not come back this time around. Family members or friends told us they were people in the mourning period asking about us, asking where we are or when we are arriving and yet they don't know them. Those unknown people pretend that we have been to school together and that when they heard that we lost a family member, they started asking whether we were present. There is even a particular person who has been asking for us especially [my husband] pretending that they did the medical school together and yet nobody knows him. He was even asking my sister if we sought asylum in Australia. He was calling them from an unknown number but she asked her the name and his number so that he passes his details to [my husband] to get in touch, he hanged up on her without revealing his identity. It's my understanding that it is a common government practice to target people who stayed overseas after they finish their studies or after their official trip representing the country. There is high risk of being persecuted and imprisoned when you go back after not returning home on time, the government thinks that you have joined its political opponents.
52. I have been in contact with my family back home. My sister has been saying to me that following [my husband’s] father's funeral people other than friends and family have been inquiry about us. [In] April 2017 [a genocide survivor] was killed in Rwanda. She is a survivor of the genocide herself. She was married and they killed her husband and she escaped. She got married later on and moved to Belgium. [Details deleted]. She decided to go back home. [Deleted]. She moved back to Rwanda 4 or 5 months before she died. She was living in Kigali and doing business. It was early morning and two people came and knocked on the gate. The watchmen said that [she] was still asleep and tired from the commemorations that she had been attending. The watchmen explained that he needed to know who these people were and why they wanted to see her because he wasn't going to just wake them up. It was at this point that he was attacked by the two men. They thought that he was dead. They attacked him with a machete. They went through the house. The house boy wasn't at the house at the time but he was supposed to be there by 9am. They attacked her in her bed with a machete. She died in her bed. When they found her bed was surrounded by candles. The watchmen gained conscience and he managed to make it to the front gate by crawling and call for help. That is when people intervened and helped, they called the police and found out that [she] was killed.
53. [This person’s relatives] had to come from Belgium. [Deleted.] She was a threat to people who were involved in the genocide. [Details deleted].
54. The presidential elections happened on 4 August, 2017; so, the police and the government didn't want any issue to appear or raise between Hutus and Tutsis. They have cast this issue as a 'business' related issue but this is not true. I know she ran a [business] because this is what she was involved in when she came back to Rwanda when she was on holiday's or visiting from Belgium. They do not want the world to know there are still issues between Hutus and report those killings as Hutus still killing genocide survivors. They don't want to upset the Hutu population as they constitute the majority they needed to win the elections. They also want to show the world that the country is reconciled and peaceful. Investigations are not conducted and people keep disappearing in mysterious ways.
55. In May 2018 my sister explained to me that she received a call from someone who purported to know [my husband]. My sister explained that this person claimed to know [him] from work and that he played [sport] with me. He told my sister his name was '[Mr I]'. I asked my sister to get all the details from him about who he was. He provided a number which is [a specified] number which is usually for executive or government people. My sister was very concerned about who this person was. She tried to ring back the number to verify who it was. My sister confirmed that when she called the number back a person named [name] answered the phone. He said he didn't know anyone called [Mr I] but she had called through to the [agency name]. My sister has not done anything else about this but when she told me about this I was very concerned about who was asking questions about us.
56. Two weeks after this my sister received a text message from the same person claiming to be [Mr I]. It said that he still needed my number in and [my husband’s] number. A day after receiving the text message he called again and when my sister asked for his correct details, he hung up on my sister.
57. On [a day in] July, 2018 people broke into my mother's house. It was 2am in the morning and people broke into the house and went straight through the house to try and get to my mother's room. My little brother was living there. He was in his own room. The house maid was also there. Each person's room was locked in the house so the people couldn't get into their rooms. I was told that my mother called my brother from her room and my brother called for help from the patrol and the neighbor. The people who broke in didn't say anything from what I understand but they didn't steal anything which was strange because if it was just bulgers then why wouldn't they steal the TV for example. The incident was reported to the patrol and the cell level security but no fonnal police report has been made. I have photos of the door that was broken. I don't have any other evidence of this.
58. [In] August 2018 an unknown man jumped the fence of my sister house and attacked the house boy and her children. [One child] was hiding in the. house at the time. [Another child] was attacked and his head was injured. There was a fight between the house boy and this man and my nephew was injured in the process. From what I understand my oldest nephew was screaming for help and people came into the compound and this unknown man ran away. The house boy said that the man was threatening to poison the food and threatened the house boy that he was either with him or with my sister and if he was with my sister he would be killed as well. He mentioned getting revenge but because we don't know who this person his we don't know why he wants revenge.
59. During the commemoration period from April - July we have a lot of revenge killings by genocide perpetrators and their family members. Every year, there are incidents happening in the whole country. In Australia, since I arrived, I have continued to organize the commemoration as part of [a group]. I started this organization in [2016]. I was doing informal activities with the community prior to this but I ended up having the support of [two local councils] and [Agency 2]. Since I started the organization I have received several grants. One from [Agency 2] and [another]. We also received a grant from [another organisation]. The overall purpose of the organization is to support African Women in Australia and continue to foster our culture and language whilst settling in Australia. We also run programs on mental and well-being in Australia as this is something that African culture doesn't typically recognize. We run the programs every second [week] at [a venue]. The office address for the organization is registered at our house as it's a non-for-profit organization. As part of this association I also organize a commemoration during the anniversary of the genocide in Rwanda. Since I started this is in 2013 (although I hadn't started [the group] I still organized a commemoration informally) it has been held at [another location] in Melbourne. We have a mass and have speeches about the memory of people lost in the genocide. Some people give testimonies, and everyone has a chance to remember those that were killed. I do this because it is important to me. In part I see it as my role to help continue educating people about the genocide and also it is a helpful healing process for me. It is important not to be alone during this period.
60. I have also been involved with supporting the Women's group at [another agency]. As part of this I made contacts with [Agency 3]. From here I then was recommended to [Employer 1] to complete an internship for 6 months through the [employment] program. As part of this I have met many people. I met [named official] and other key people. I was invited to do a speech at a business breakfast where many people since have wanted to meet me. As part of this speech I mentioned the genocide and where I have come from. I also spoke about being an asylum seeker in Australia and spoke about balancing this with being able to settle in Australia and some the cultural differences. I have had a request from [an agency] and [Agency 3] to be involved in a video and Facebook posts. I declined this as I was concerned about my profile becoming public and people who want to harm me back home and the Rwandan government finding this out. Because of this I have also turned down some further invites to make speeches. I did a speech for international women's day at [Employer 1] and I noticed lots of people taking pictures. I can never be sure where these pictures will go so I have turn further invites down.

The statutory declaration from the applicant dated 19 June 2015 stated:
1. My name is [name]. I was born on [date] in [Country 1]. I married my husband [named] (D.O.B [specified]) [in] 2009. I have one daughter named [Daughter 1] born on [date]. We are Catholic by religion. I have lived in different parts of Rwanda, which include Kigali, [and other specified locations]. I left Rwanda along with my daughter to come to Australia to join my husband who was doing his [studies] at [a named] University [in] September 2012.
2. I have been an active member of [named organisation] since 2002, I informed them every time I was attacked and they promised to advocate and seek assistance and protection from local human rights organisation, and Genocide survivor's organisations such as AVEGA and IBUKA. I have been [an occupation] at [a workplace] since January 2013 and have recently stopped working as advised by my doctor, due to my pregnancy complications. My social worker from the [Hospital] referred me to Red Cross where I am still waiting for my financial assistance application to be processed.
3. I am a Tutsi by ethnicity and Rwandese by Nationality even though I was born in [Country 1]. My late father was exiled in [Country 1] in 1973. He was originally coming from [a location] (Northern province) and was deported by the Government to [another location] (Eastern province) where many tutsi were being killed by animals such as lions, tigers, etc, or they would die from different diseases such as diarrhoea, malaria, etc. They worked hard, cutting the trees and grasses and used them to build their houses. They started doing agriculture and exchange of food with [local] people to get cows. That's how they started life slowly hut unfortunately, my Grandfather was killed [in 1964] as he was among the Tutsi that were starting to get a lot of money from the agriculture. He was in a position to educate his children and this is how my father managed to go to University although it was very tough for Tutsi children to go to school, as the Government of that time did not allow for these children to be educated.
4. It was very hard for them; my father was intelligent and a [sports] player which exposed him to more attention than other Tutsi children; he told us that one day he was taken to Hospital and spent two days unconscious because his classmates and teacher assaulted him at the end of the term. He had spent his holidays recovering from the abuse. His elderly sister advised him to stop his schooling, but instead my father became determined to complete his studies. His father managed to take him to another school and he ended up going to University even though it was a very serious crime to be educated as a student with Tutsi ethnicity.
5. He was tortured day and night by his colleagues and slept in Football ovals in order to hide for protection. The situation grew worse in 1973 when the lives of Tutsi students were exposed to an attempt of arson and murder that was to be blamed on an electrical fault. My father was among the lucky Tutsi students who survived that time because he had one Hutu friend who could hide him in his room. During the MRND (the ruling political party at that period) meeting, Hutus were encouraged to kill Tutsi students, my father's Hutu friend told him to go far away as soon as possible because he would not be able to protect him that night. The Army was involved and the military order was that no Tutsi should escape. This is how my father was displaced to [Country 1]. From there, he managed to continue his studies where he became [an occupation].
6. My Mother was originally from [Town 2], her family left the country during the massacres of Tutsi populations that occurred in 1961. She was born in [year] when the Government of Rwanda was killing all Tutsis. She was the last born in her family and subject to extreme emotional hardship as the only information she had of her father is that he was murder in 1961. My Grand father and others tried to fight for their rights but ended up being murdered by an Army intervention intended to kill all Tutsis.
7. My mother's family went to [a location], they kept running looking for the nearest place to be exiled and finally they reached [Country 1], the side called [region name] that's where they settled. They worked hard, they cut the trees down in order to build shelter and they used grass to make the roof for the house. My mother's family worked hard so that she could have the opportunity to be educated and represent the family. That is how she had the opportunity to go to school and at the end of her studies, she became [an occupation] and that is where they met with my father.
8. I was the first born among [number] children my parents had. It was not easy for them even though they were both professionals to send us to school because we were refugees and could not get any benefits as [Country 1] citizens. My parents were paying expensive school fees for public schooling while for citizens education was free; my parents put themselves in financial hardship in order for my siblings and I to go to school. There were many situations of injustice that I was subject to as a consequence of being a Tutsi. I was an intelligent individual in primary school, always getting results among the top three students of my class. When I did my National Exam in [year], the passmark of the time was 140 over 200 for refugee students but the pass mark was 98 over 200 for citizens. I got [a very high mark] and I was even in the top five students in the whole school but I failed. I could not understand why all the other students who did not even receive a 100/200 have passed. The Headmaster called my father to ask him to take me to a private school but my parents could not afford a private school since the school fees will be triple that of public schools.
9. My father and mother took the time to make us understand that running away was not a choice that was in their hands and that if we had stayed there would have been an immediate threat of murder on all our lives, and that they did not want us to be murdered in the same atrocity as our grandfathers. I remember how my Mum was crying, no one could comfort her because the pain she was feeling was beyond our imagination. Since that day I started developing anger towards all these criminals who were murdering innocent Tutsis and began listening to Radio Muhabura with my Dad. Radio Muhabura was the Rwanda Patriotic Front rebellion radio. When my father saw my interest, he started to educate me by telling me everything that was happening in Rwanda; how the RPF was trying to fight for the liberty so that all Rwandans can go back to their country. I lost interests in everything I loved before, my hobbies were playing with friends, watching cartoons, reading books but I became focused on what the Inkotanyi (RPF fighters) were doing so that we can leave quickly that country that I already began to hate for its inequality to refugee families.
10. [Event details deleted.]
11. I ran to get my [siblings] while other kids were picked up by their parents. I was responsible of my siblings because my mother was with my youngest brother who was admitted to hospital while my father was in [another country] at that time in training. When we reached home, we found that neighbours were just packing up and going to the nearest secondary school where soldiers requested us to go for more protection as they were not able to protect each family in our neighbourhood. We put whatever we could in our school backpack and followed others. My siblings were crying of starvation and were subjected to inhumane sleeping conditions, as the small room was extremely crowded, they were screaming at me to take them back home where they can eat, drink and sleep comfortably as they were still too young to understand what was going on. Things were getting worse every day as people were being murdered. When my father came back in [Country 1] from his training, he decided that we should go back to our country, Rwanda as the President Habyarimana showed that he was willing to let all Rwandan refugees back in the country according to the ARUSHA agreement made by the Government of Rwanda and RPF lnkotanyi. The agreement stipulated that RPF would send 600 soldiers in Kigali the capital to protect its leaders. When they arrived, Tutsi' s who were in the country or outside the country were so ex.cited and started to celebrate thinking that there will be no more killings, the ones outside of the country started even planning their trip to Rwanda including my family. But one of my uncle who went straight away after hearing the news, called my father to let him know that he should wait as during the night some incidents of arson were inflicted on Tutsi family homes causing their murders.
12. It became worse on the Jth of April 1994 after the crush of the flight of the President Habyarimana that happened in the night of~ April 1994. The trained young people from CDR and MRND commonly known as "Interaham.we" were given an order and encouraged by the Government locals through the National Radio commonly known as RTLM to start the genocide of the Tutsi population. These Interahamwe were helped by the Rwandan soldiers to make certain that no Tutsi individual should escape and to punish Hutu individuals who were willing to help Tutsi by hiding them. This is how my family members who were in Rwanda perished, here I mean my uncles and unties together with their kids.
13. The RPF became a significant organised fighting force in order to try and save the lives of the Tutsi population. They succeeded to liberate the country on 4th of July 1994 even though many people were murdered. My Father as well as other Rwandans decided to come back in their country [in] July 1994. The situation was even worse in neighbourhood [Country 1]. My father tried to gather information in every possible way to see if there was someone from his family or on my mother's side who was in Rwanda during the Genocide and survived. He meet with people who knew my family, neighbours or colleagues, etc. and much to his despair was told stories of how they were killed. In some instances it was possible to discover where they were killed in order to find their bodies to pay respect to our beloved dead and bury their bones.
14. This is how we gathered more information about how our family members died during the Genocide, although there are some family members that we still do not know if they were murdered, where their bodies were thrown. During remembrance period, we join other people who have lost their family members and have had their body thrown in Lakes and rivers, as we are not sure if our missing family members are not among them.
15. They were so many people involved in the Genocide that the Rwandan justice system did not have the capacity to trial or to keep in prisons thousands of people for long periods of time. To address the huge and complex judicial problem, the Government started the Gacaca courts which are community and public courts for witnesses or anyone who has information to be able to go in front of the public and give testimonies on what has been seen or heard about killings. The Gacaca court was such a risk for all witnesses, but my father decided to, I was always supporting my father and was the only one going with him wherever he was going to give testimonies but unfortunately he passed away in [2004]. After his death, I decided to take over as I knew everything and I wanted all those criminals to pay for what they had done to our family especially because justice was something that my father wanted. He used to tell me on our way to the Gacaca courts that he would rather die than let those killers go free and that he wanted to make the killers pay for what they have done to his Dad, brother and sisters and his in-laws".
16. When I started giving testimonies, my mum and siblings were so frustrated and angry with the thought that my actions were going to cause trouble as some people were being killed for giving these testimonies. After a while, some of the criminals that I testified against were sentenced to life in prison and that's how the situation became worse as well as for my family. The family members of those who were convicted started to threaten me saying that I did not deserve to live and that it will not take long to finish the job that they started. During the night, they start throwing stones on the roof of our house and putting graffiti on our house that said that they hadn't finished their job since a terrible bitch is still alive. My mum and siblings were so scared and upset and were always advising me not to go to court as I am putting the whole family and myselfin danger.
17. It became serious when one day at the age [age] years, I was attacked by some people while on my out, two men stating to physically abuse me, hitting me on the head and as I was down on the floor kicked my back. People passing around intervened then the attackers ran away. The hit to the head caused me to knock my head on a big stone and became unconscious. I really don't know how I reached the hospital and who took me. I regained consciousness after 2 hours but couldn't talk. I lost my speech due to the trauma and recovered slowly and was discharged one week later. I was seriously injured and spent a month unable to bend or carry objects. This is when my family started becoming seriously concerned and asked me to stop attending Gacaca, we would wake up and find anonymous letters addressed to me stating that they will come back to finish what they started, that if I didn't learn from what had happened to me and continue to testify they will get satisfaction not only by killing me but also by killing my whole family.
18. We complained so many times to the Police regarding the harassments, intimidations and attacks but instead of intervening, the police would call me stating that they needed me to come to their office for more information. Each time I got to the police station there was more intimidation and harassment by Police officers who have their family members in jail, asking me to stop giving testimonies anymore or to attend the Gacaca, otherwise I would be killed along with my family. It came to the extent that I did not feel safe to go to the police when something had happened to me or my family, such as throwing stones on our house, leaving faeces and urines at our front door step. Other witnesses giving testimonies like me were killed in different places of the country, The Government that started the Gacaca, did not have a system, strategies or the capabilities to protect the people who were giving testimonies in these community courts. This is because the Policemen or the judicial system are corrupted in our country due to the small wages that they are getting. Another fact is that there are some family members of killers who joined the Anny or the police some are even in the highest positions.
19. As a way of protecting myself I started changing locations frequently and changing my look every time that I attended the Gacaca. I was not living at home even though it was my known address. I would sleep at home one night of the week and spend other nights in different places such as my friend's houses or other family member's houses. My fiance who is my husband today was very frustrated by the fact that I had to constantly move, he wanted me to come and stay in his house in Rwamagana District but in our culture it's not acceptable. I couldn't sleep in same house for two days or keep the same look for more than one week. I stopped driving as I did not feel safe, I drove my mother's car one day to the market and it was damaged, all four tyres were punctured with long nails and an anonymous letter was left on one of the front wheels stating that they are watching me wherever I go. That day I was so upset, feeling even desperate, my brother insisted that we go to the police and complain about what happened. The police kept the letter saying that they will get back to me but I waited in vain.
20. I was dropped off by a friend of mine who had lost her father, and it was around 9.00pm when a guy a completely covered up face attacked me, at the beginning I thought it was a robbery as I had my hand bag, but he said while pointing a sharp knife in my left side, that I should say in the next Gacaca courts session that whatever I said was wrong. that someone lied to me as I was not there when the Genocide happened so that his family members can be released. He said that if I was not going to do it that my family members were to die in a horrible way and he slapped me before leaving. I was really chocked up and traumatised, I sat down on ground for more than half an hour, all my friends and family asked me to explain what really happen but I couldn't. The police came and took my statement promising to follow up the case, but I have never had anything from them.
21. While I was preparing for my wedding most of my shopping was done only on Saturday early in the morning. I felt that by 4pm I should be home because I was very scared to go in the town after work in case I get attacked again. Meanwhile, my family was advising me to drop everything saying that it's becoming very dangerous not only for me but also for the whole family. My sister one day told me that she was really tired of cleaning up the faeces of people that she doesn't know! I !When I got married, it was worse as my husband was always working countryside and only coming back on Saturdays and I was alone in the house the whole week. It was very terrifying when I was at home. I couldn't sleep during the night, I started developing terrible headaches and my GP said it was severe migraines. I could be taken to the Emergency due to those terrible headaches and spend whole day there. I kept changing my look very often so that I can't be recognised very easily. I remember when I had a haircut, my husband was really shocked but when I explained to him, he understood, as he knew that it was important to keep changing my look. My husband sometimes drove me and as a result the tyres were punctured. One day my daughter was sick and I took her myself to the hospital as my husband was countryside, I parked the car into the compound of the pharmacy at [a location] in Kigali city to buy her medications, by the time I came back I realised that all 4 tyres were flat, all this happened while it was day time but when I just bend to examine the reason why my tyres were all flat, I saw that they punched them by very long nails and they left another anonymous letter having a picture of my daughter on the top and it was written on the bottom that now even if they won't get me, they can easily have my daughter. I was really devastated as we have tried to protect our daughter from this, I couldn't even understand where they got my daughter's picture, I called my mum and husband told them what happened. My brother came straight away of course I was in shock and didn’t know what to do. My Husband and brother convinced me that we should show it again to the police and make a complaint even though for me it wasn't really going to change anything, as I didn't get any feedback on many other complaints I have logged. We waited for them and they asked me to give them the anonymous letter but that was all. I didn't hear from them anymore about that case, instead a policeman called me with a private number and he threatened me that soon I will pay for what I have done. This is one of the big reasons that I was losing hope of being protected.
22. I moved to my mum's house and stayed there as my Husband was coming to Australia for studies. I started filling in all paperwork required for my daughter and me to join him. Before; my husband and I did not agree on the fact of coming to Australia to join him but since the attack involving my daughter, I said to him that I need to hurry everything for my daughter's safety. This has left me with serious trauma and stress that resulted in a [medical incident] in July 2012 and just days after recovering we came to Australia. What I have been through left me with serious trauma, stress and headaches till when my GP discovered it and referred me to a counsellor. Up to now, when I talk to my mum, she is telling me that sometimes she receives calls from private numbers asking her when I am coming back. When asking who was calling, they will tell her that they are still waiting for me and that I will pay for what I have done.

The statutory declaration from the applicant’s husband, [named] dated 14 September 2018 stated:
1. I confirm that I have read and understood my wife's statutory declaration and it is true and correct to the best of my knowledge.
2. In addition to my wife's statutory declaration, I would like to make the following statements regarding the decision of the Department of Immigration and Border Protection to refuse our family a Protection visa.
Employment Update
3. I currently work [in a position] for [an agency]. I started as an intern in September 2016 and have secured temporary contracts since January 2017. Before working for [this agency], I did casual jobs as [an occupation] for several [agencies] here in Melbourne and [in another role] at [another employer] until 2016. I started these two jobs in November 2012.
Documents from Hospital in Rwanda
4. In relation to the finding that the medical reports and letters from Rwanda that we provided are results of forgery and are fake, I wish to provide the following.
5. In Rwanda before the 1994 genocide against the Tutsi, the official languages were Kinyarwanda and French, and French was the language used in workplaces and in schools. University studies were provided in French until 2011 when they shifted to English and after Rwanda became member of the commonwealth family. So the majority of medical health professionals are French speakers. People are really struggling with the new system, trying to apply the new directive and work in English. So it is done in hospitals. It is a difficult transition period for those medical doctors who studied and grew up using French. In my experience it is not surprising to have letters with technical errors in medical terms used by those medical professionals. They just translate French words or Kinyarwanda words to English as they are forced to use a language that they have not mastered.
6. The Rwandan health system is still weak and not organized, particularly in 2008. Public and private hospitals do not have standard working documents such as sample letters or medical certificates, policies and procedures like in Australia. I know from my experience that it is very different from what it is done in Australia. For example, the death certificate of my father who passed away [in] May 2017, you can see that the format is in French but the medical doctor filled it in English. Until today it is my understanding there is no standard in Rwandan hospitals. It was even worse 5-9 years ago. Each medical doctor operates as he wants; it is not surprising that there are some format and editing errors. Also, almost all students in Rwanda use a computer for the first time when they are doing their research project at the end of their studies. Generally, there are very limited computer skills in Rwanda.
7. With respect to the comments by the delegate regarding the wet stamp, there are no standard stamps for doctors. Doctors order from different suppliers with different designs. The most important is the Rwanda medical Council membership number, attesting that you are registered to practice in Rwanda. Regarding the stamp on both letters, of course they can't have the same clarity as one was put on in 2008 and the other one in 2012, the quality of the ink can't look the same after 4 years.
8. Regarding the hospital logo, as mentioned before, there is no standard template for hospital letters and reports, doctors will just copy and paste the logo on a word document and do the report or write the letter. And the letterheads in Rwandan institutions don't have details as we can see in Australia.
Attacks on [the applicant]
9. I did not personally witness the three physical attacks on [the applicant] in 2008 and 2009. I was called either by her brother [named] or her best friend [named], and then I would travel to Kigali as soon as possible to see her. I was always worried and scared about her even though I had to go countryside for work. We have had many arguments with her to see if she could stop working or being involved in the prosecution of people regarding the Genocide as her family wasn't happy for her to continue to put her life in danger by doing this. But she won't even let me talk about it as it was upsetting her, she even once told me that she didn't need me to support her, she told me that I can be like her family, she mentioned that she was so determined for the legacy of her own Father and all people who perished in the Genocide. This was and still is very important to [the applicant].
10. I first worked in [Town 3], a small city located in Eastern province, 1 hour from Kigali city. I was [an occupation] at [a named employer]. I worked there from April 2007 till June 2008. I then moved to Kigali to work for [another employer] as [an occupation], I was in charge of [a program]. [This work was] in Kigali. I worked there for 2 months then moved to [another] program ([named]) from 1st of September 2008 till July 2010 where I worked as a [different role]. I had to travel in countryside doing field work, visiting [related agencies].
11. The attack in March, 2008: [the applicant] was on her way going home and was coming from a parent meeting at her siblings high school in [a venue] located in [Town 1] and was assaulted by a man. I was at home in [Town 3] getting ready to come in Kigali for the afternoon to visit her when I received a call from her brother that she was attacked. I didn't gather much information, just rushed to take a bus to come and see her. When I arrived in Kigali, I went straight to [Town 1] at her home, where I found her very shaken and traumatized by the incident. The first thing I asked was to know if the police was alerted about this incident. The brother and Mum told me yes. I remember that she could not talk to me, she cried for almost 2hrs and when she stopped, she was not being able to narrate anything that happened to her. I gathered the details from her family members including her Mum who was very upset not only by what has happened to [the applicant] but also the fact that she won't listen to her and kept putting herself at risk. I left there very late that night, promising her to come back early the next day. It's just that in our culture, it wasn't acceptable to spend a night with her and in her house but if possible I could have stayed. The next day, I came back and this time she could talk to me.
12. [The August 2008] attack: She was seriously attacked: I went to visit her in [Hospital 1] where she was admitted early next day. I'm not 100% sure who contacted me but I think is one of [the applicant’s] friends who told me what happened and that she was in hospital and seriously injured. I should have come straight away but unfortunately I was in [Town 2], South province for field work and visiting my parents who were living there. I reached at [Hospital 1] in the early morning the next day; she was still very drowsy with medications. I managed to speak to her Dr who told me that the X-ray didn't show anything alerting but that she need much time to recover and especially to sleep, that she is really shaken by the attack. I was there for about 2hrs and then she told me what she could remember in her attack. She was really weak, stopping to talk throughout her speech. It took her a week to get back to her feet and was discharged home.
13. [February 2009] attack: I was with [the applicant] the whole day as we had funerals of her friend's dad where we were involved in helping with both protocol and serving drinks. We separated after the funerals ceremonies at about 8:30 PM, as she was feeling very tired, it was really full on that day, not only being an emotional day but also working such as serving drinks, protocol plus also her involved in cooking for about more than 100 people. She went back home, she was being dropped off by her friends and I went to [another event] with friends. It was my normal Sunday [commitment]. [The applicant] was emotionally tired after a long emotional day of cries and tears. So it was around 9 pm that I was called by her [friend] informing me that [the applicant] has been attacked again. I went straight at her place in [Town 1], where she was crying a lot and very shaken by the incident. There were so many people including two police officers who were taking statement from her. As soon as the police departed, I stayed with her a bit but as I could see that she was very unsettled, I went with her brother to get some sleeping pills so that she could at least sleep and maybe it can help. When we brought the medications, she accepted them and slept. I left her house when she was sleeping very late and came back in the morning. She spent almost another month being so scared of everything; she was not herself that I decided to give up my weekend activities just to be with her. I was making sure that I spend all my weekends with her. I would go and pick her in the morning and drop her off once we are done as I didn't want anything to happen to her again given that the previous incident happened when I should have been the one to drop her off.
14. December, 2011 incident: She went to look for some medications for our daughter [named] who was sick at a pharmacy shop located in [town]. She parked the car at a [location] around 11 AM. When she came back she found all the four tires flat after being punctured. She also found an anonymous letter with a photo of our [daughter] attached on one of the punctured tires. The letter was threatening [the applicant] telling her that if they couldn't get her, they will revenge on our daughter. That was very scary. That day, I was I think in the Northern Province. [The applicant] called me but she was crying a lot that I couldn't hear anything of what she was talking about. I later had her brother on the phone who told me what has happened. I had to come back as soon as possible; it was a 3hr road trip. When I came back, she was really scared and traumatized that since then she couldn't sleep without sleeping with her.
Decision to leave Rwanda
15. In September 2010, I started the process to apply for a [study program]. At this time I didn't know I would be coming to Australia. I applied for a few international [programs], and one from [another country] that I couldn't get due to lack of work experience. Around Feb- April I got the news that I was selected for [a study program] interview in July 2011 in [a location]. I got confirmation that I was granted [the study program] in September 2011 and got my letter of offer from [the university] on 23/11/2011. Around mid -December 2011 I got the visa, and then resigned from my work in the last days of December to start preparations for the trip to Australia.
16. I left [in] January 2012 and arrived in Australia on [the following day].
17. We discussed at length whether I should leave Rwanda given what had happened to [the applicant]. [She] knew how much work went into the [study program] that I had been granted and also how unique the opportunity was. We talked about the fact that [the applicant’s] mother was able to help her and that I had some friends that were around that agree to look after [the applicant]. We talked with family and friends and everyone agreed that they could look after my wife and eldest child for 6 months or so. The plan was always that [the applicant] would join me in 6 -7 months.
18. In Rwanda it is very difficult to secure [specified] studies, so this was a massive opportunity for me and my family. It was a big decision for me to leave my wife and child. My daughter was [age] at the time and threat in December 2011 really had me worried, but we talked at length with family about it and after this discussion we felt more comfortable about me leaving but it was a very difficult decision. After I left Rwanda, [the applicant] moved back with her mother.
Decision to apply for a Protection visa
19. Originally when I arrived in Australia I had planned to complete my English course and then settle [the applicant] in about 6 - 7 months after I arrived. After [the applicant] arrived it took sometimes to get settled. I notice a big change in [the applicant]. Not only because of the [medical incident] in July 2012 but I noticed she was very concerned about what was happening back home. Particularly speaking to her mother on the phone and hearing about people inquiring about us back home made her very anxious. As I was busy with studies I wasn't speaking with family back home as regularly. I was so focused on studies and not wanting to waste the opportunity I had been given so I was not speaking with family back at home as much. I was still worried but not like [the applicant] was.
20. It was around when [the applicant] started seeing GP about her mental health problems that the GP was concerned about [her] and her fears. She was referred to a counselor. [The applicant] attended a few appointments at the start on her own because I had to look after our daughter. After a few sessions I attended with [the applicant]. It was around this time that we were told to speak with a lawyer about our visa options because a lot of [the applicant’s] mental health issues related to her fear of returning to Rwanda.
21. After this, we met with a Migration Agent. [The applicant] has outlined what we did to lodge our Protection visa application in her statement.
The medical report from [Doctor A], a general practitioner, dated 8 November 2017 states:
My name is [Doctor A]. I have worked at [Medical Centre 1] for almost 5 years. I originally came from [Country 2]. I did my internship and residency at [a named] Hospital, NSW. I passed the FRACGP examination in 2011.
[The applicant] has visited [Medical Centre 1] since 2012 and my 1st contact with her was in February 2014. Since then I have attended to her physical and mental health issues regularly until now.
Psychiatric reports indicated that [the applicant] has been suffering from symptoms of depression with anxiety and Post Traumatic Stress Disorder. She is currently presented to me with constant headaches, increase of muscle and joint pain, insomnia, difficulty concentrating and inability to carry out her daily living duties at home such as looking after her family and especially her two children. Sometimes, her husband needs to take a carer leave to look after her and the children.
Although, she has been continuing having counselling under [a program] and through [Agency 1], Her mental health has been deteriorating several times requiring changes in her medication. She started from [one medication], then change to [another]. And the last one changed to [another]. Her anxiety exacerbated from time to time especially if there is a triggering event for example during The Annual Commemoration period of the Tutsis Genocide or when asked questions relating to her visa status. During this time, she usually takes [one medication] as well as her Anti-Depressant.
Understandably [the applicant] experienced extremely severe level of anxiety and attacks and other anxiety or depressive symptoms before or during interview which can affect her ability to answer all the questions.
Her mental health has really deteriorated after she received the rejection letter from the Immigration Department as explained above. She has visibly lost confidence in herself and this is observed in our interactions during consultations, sometimes she seems to be far while talking to her.
The medical report from [Doctor A], a general practitioner, dated 9 September 2018 states:
My name is [Doctor A]. I have worked at [Medical Centre 1] for almost 5 years. I originally came from [Country 2]. I did my internship and residency at [a named] Hospital, NSW. I passed the FRAC GP examination in 2011.
[The applicant] has visited [Medical Centre 1] since October, 2012 and my 1st contact with her was in February, 2014 prior to that she has seen different Ors. Since then, I have attended to both her physical and mental health issues regularly until now.
[The applicant’s] current mental health has worsened due to different series of events that had happened to her since the refusal of her visa and what is happening back home. I have observed high level of depression and anxiety plus loss of confidence in her. So many times, she reported feeling lost, main complaints included mixed hallucinations, irritability, inability to perform her daily tasks and depressive mood. She is having difficulties in breathing, sweating and can not sleep because of nightmares including seeing her own children being chopped into pieces, full of blood, etc ... The husband has reported to me several times his concern regarding [the applicant’s] mental status as she was struggling a lot. I did a new referral for her to see a Psychologist on 08/07/2018 at [a named agency] as I wanted her to see someone who is trauma and counselling focused after [Agency 1] change in policy. Unfortunately, [this agency] also had a change in policy, they could not see her as she wasn't qualifying for the eligibility criteria. After the assessment at [the named agency], they referred her to [Ms G] from [a named service] who [the applicant] is currently seeing. I am hoping that it will help for a better management of her mental status. She has been having trouble to sleep or even to concentrate on her daily tasks especially the last 2 months as her Mother and her nephew were attacked back home. Psychiatric reports indicated that [the applicant] has been suffering from symptoms of depression with anxiety and PTSD. She has been presented to me with constant headaches, insomnia, increase of muscle and joint pain, difficulty concentrating and inability to carry out her daily living duties at home such as looking after her family and especially her two children. Sometimes, her husband needs to take some time off to look after her and the children. Due to her worsening symptoms, Psychiatrist changed her medication from [one medication] to [another]. Although, she is continuing having counselling under [a named program].
Her mental health has been deteriorating several times requiring changes in her medication. She started from [one medication] to [two others]. The later one was started in February, 2017. She was started on 50mgs but was increased in December, 2017 up to 200mgs after the consultation of the Psychiatrist in November, 2017. Her anxiety exacerbated from time to time especially if there is a triggering event for example during the annual commemoration period of the Tutsis Genocide, anything happening to her family back home, a death in the family or when asked questions relating to her visa status. During this time, she usually takes [one medication] as well as her Anti-Depressant. Currently, she is taking [one medication] on top of [another], that I prescribed her after observing that [the one medication] is not helping at all, this was to boost her sleep as well as her concentration.
Understandably [the applicant] experienced extremely severe level of anxiety and depression during questioning/ interview. It can give her flashbacks, nightmares, panic attacks and other anxiety or depressive symptoms before or during interview which can affect her ability to answer all the questions.
Her mental health has really deteriorated after she received her refusal letter from the Immigration Department as explained above. She has. visibly lost confidence in herself and this is observed in our interactions during consultations, sometimes she seems to be far while talking to her.
The psychologist report from [Psychologist B], psychologist, dated 12 January 2018 states:
Thank you for referring [the applicant]. Background history confirmed concerns in referral. CBT (Cognitive interventions, problem solving skills training), Interpersonal Therapy, Family Therapy and Solution Focused Therapy will be used to help [the applicant] with her presenting difficulties. Improvements will aim at deepening insight as well as acquisition of skills to facilitate improved self-management.
On the DASS21 [the applicant] scored in the Extremely Severe range for Anxiety, in the Moderate range for Depression and in the Mild range for Stress. On the chm1 of wellbeing (which measures Energy, Pleasure, Sleep, Concentration/Decision Making, and Outlook) [the applicant] scoi-ed in the Poor-Pessimistic range for last week.

The psychologist report from [Psychologist B], psychologist, dated 6 December 2017 states:
Thank you for referring [the applicant] who has now completed six plus four (10) sessions of psychological therapy in 2017. CBT (Cognitive interventions, problem solving skills training), Interpersonal Therapy, Family Therapy and Solution Focused Therapy have been used to help [the applicant] with her presenting difficulties. Improvements aimed at deepening insight as well as acquisition of skills to facilitate improved self-management.
On the DASS21 [the applicant] scored in the Severe range for Anxiety, and in the Moderate range for Depression and for Stress. On the chart of wellbeing (which measures Energy, Pleasure, Sleep, Concentration/Decision Making, and Outlook) [the applicant] scored in the Worst-Pessimistic range for last week.
The psychiatrist report from [Psychiatrist C], dated 13 November 2017 states:
I saw [the applicant] with her husband. She has increase in anxiety due to upcoming tribunal hearing about her visa status.
I had last seen her about 9 months ago. I understand she has been on [a named medication] since my last review.
there is no deterioration in functioning. there is no risk.
I have not made any new plans for her management
as per my last review, i have asked her to increase [a medication] to 100mgs and subsequently by 50mgs up to 200mgs a day. If no better by end of december, please add [another medication] 2mgs. if there is deterioration, please contact [a treatment service] for admission. I have explained all this with husband and herself.
The letter from [Counsellor D from], [Agency 1], dated 10 November 2017 states:
I am writing to provide a summary of [the applicant’s] contact with [Agency 1], as requested by [a migration agent]. In preparing this letter I have relied on [Agency 1] referral documents, psychosocial assessment records and counselling file notes.
[The applicant] was referred to [Agency 1] in September 2015 by [Psychiatrist E], Psychiatry Registrar from the [named] Hospital, Melbourne. In May 2016, [the applicant] underwent a comprehensive psychosocial assessment with [Agency 1] Counsellor, [Counsellor H]. The purpose of a [Agency 1] assessment is to determine whether a person has a history of torture or other traumatic events prior to their arrival in Australia, and as a consequence of this history is experiencing psychological difficulties in their daily functioning. Following this assessment, it was deemed appropriate that [the applicant] commence trauma focused counselling at [Agency 1]. She did so, and was seen by [Counsellor H] from June 2016-August2017. [Counsellor H] left the organisation in August 2017. In October 2017, I was assigned as [the applicant’s] treating Counsellor and have seen her for four counselling sessions to date
At assessment, [Counsellor H] noted that [the applicant] presented with post-traumatic stress and depressive symptoms. Treatment focused upon strategies to manage depression, explore traumatic pre arrival experiences, and management of trauma symptoms. Trauma symptoms disclosed by [the applicant] or observed and documented during sessions included the following:
-Regular nightmares, often featuring dead bodies and blood in which her husband and children were threatened with harm.
-Rumination about past events and persistent uncertainty about her future in relation to the Refugee Status Determination process.
-Persistent fears for the safety of her children if required to depart Australia.
-Difficulty in sustaining concentration
-Restricted affect with persistent low mood
-Difficulties with memory, such as recalling events, remembering appointments or misplacing items.
-Poor sleep, with difficulty falling asleep and maintaining sleep due to ruminations and nightmares.
-Frequent headaches and or migraines commencing from adolescence.
In my interactions with [the applicant], I have observed she is always neatly presented and courteous. She experiences persistently low mood, with little enjoyment in life, asides from her children and engagement in community work. When speaking about her trauma history and Refugee Status Determination, [the applicant’s] demeanor notably changes and her speech becomes labored and her tone is flat. At times, [she] will hold a fixed stare in silence, and at other times become tearful and holds her head in her hands. This presentation is consistent with previous records of former Counsellor [Counsellor H]. [The applicant] has expressed considerable distress following her negative protection visa decision and there has been a decline in her mental health and day to day functioning. [The applicant] underwent psychiatric review in February 2017 and continues to be prescribed anti-depressant medication for her symptoms.
In light of [the applicant’s] psychological presentation and symptoms it is recommended that she continues to receive trauma focused counselllng at [Agency 1].
Hearings
Hearings took place on 24 September 2018, 28 February 2019 and 24 July 2019. The Tribunal spoke with the applicant and her husband about the substantive claims and evidence on 24 September 2018, 28 February 2019. The hearing on 24 July 2019 concerned the issue of a certificate issued under s438 of the Migration Act dated 21 May 2019, in which the Tribunal found that the certificate was valid but that the Tribunal placed no weight on the information covered by the certificate on the basis that the information was from an anonymous person and accordingly the Tribunal had no way of speaking to the person that made the report or testing the information the person provided.
Findings
The Tribunal has carefully considered the claims made by the applicant of harm and threats of harm to her in Rwanda. The Tribunal has some reservations about the general credibility of the applicant. In her testimony during the hearing, the Tribunal finds that there were a number of instances in which the applicant was unclear and vague about certain specific issues in connection with the events of harm and threats of harm she claimed occurred to her in Rwanda before she came to Australia. However the Tribunal has given the applicant the benefit of the doubt. Accordingly the Tribunal makes the following findings:
a.the applicant is a citizen of Rwanda and Rwanda is her receiving country.
b.The applicant’s ethnicity is Tutsi.
1. The applicant did participate in Gacaca courts in Rwanda in 2004 and 2005 and her participation in the Gacaca court process resulted in imprisonment of some individuals who took part in the 1994 genocide.
d.The applicant was assaulted in March and August 2008, and in February 2009 by unknown persons but these assaults appear to have had some connection to her participation in the Gacaca courts.
e.There is some indication of occasional comments being made to her family asking about the applicant, indicating that there may be individuals who may have some lingering interest in the applicant.
f.The applicant has very serious, severe and ongoing mental health issues to the point where she will likely be a risk to herself and potentially those in proximity to her for the foreseeable future.
The issue for the Tribunal is if the applicant, in the circumstances as the Tribunal has found, returned to Rwanda in the reasonably foreseeable future, would she face a real chance of serious harm on the basis of her ethnicity (Tutsi) that was inextricably linked to her decision to participate in the Gacaca courts? The Tribunal accepts that the applicant would have a higher risk profile than someone who did not participate in the Gacaca court process that resulted in imprisonment of some individuals who took part in the 1994 genocide.
The Tribunal has considered the country information, in particular, the Human Rights Watch report entitled “Justice Compromised – The Legacy of Rwanda’s Community Based Gacaca Courts” published in 2011. This information was discussed during the hearing and the applicant made post hearing submissions on the issue.
Essentially, the country information is clear that there have been instances where witnesses to the Gacaca courts have been threatened, intimated and killed. The Tribunal accepts that the instances referred to in the report happened many years ago. The report itself in now some eight years old. Despite the effluxion of time, based on the country information, the Tribunal finds that there remains a very substantial chance of serious harm to the applicant if she returned to Rwanda in the foreseeable future.
The Tribunal has considered whether the applicant would receive effective protection if she returned to Rwanda in the foreseeable future. During the hearing the Tribunal put country information to the applicant, in particular, that a recent Gallup report found Rwanda to be the second safest place in Africa. The Tribunal did raise with the applicant the proposition that Rwanda had an effective police force and therefore the applicant could access effective protection should she return to Rwanda. Post hearing submissions were made on this issue.
The Tribunal does not accept that the applicant has a real risk of serious harm from the Rwandan authorities. She was able to obtain a passport and leave Rwanda without any difficulty from the authorities.
The Tribunal finds that the main threat the applicant faces if she returned to Rwanda is from those who she gave evidence against and their associates.
The Tribunal has considered the requirements of Article 1A of the Convention and the case of MIMA v Respondents S152/2003 (2004) 222 CLR 1. The Tribunal has also considered the observations of Gleeson CJ, Hayne and Heydon JJ observed that ‘no country and guarantee that its citizens will at all times and in all circumstances, be safe from violence.’
The Tribunal has considered that Justice Kirby similarly stated that the Convention does not require or imply the elimination by the state of all risks of harm; rather it ‘posits a reasonable level of protection, not a perfect one’.
The Tribunal notes that the joint judgment in S152/2003 refers to the obligation of the state to take ‘reasonable measures’ to protect the lives and safety of its citizens, including ‘an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system’, or a ‘reasonably effective police force and a reasonably impartial system of justice’, indicating that the appropriate level of protection is to be determined by ‘international standards’.
The applicant’s submissions to the Tribunal offered a range of country information indicating that the Tribunal should not place ‘undue’ weight on the information in the Gallup report. The applicant’s submissions indicated that the same report countries such as Ethiopia and Iran also scored well.
Given the applicant’s risk profile as discussed above, the Tribunal remains concerned about whether the applicant will receive a reasonable level of protection from authorities in Rwanda. The Tribunal accepts that there is some level of protection available to the applicant in Rwanda. However, in balancing all the circumstances, the Tribunal is not satisfied that the applicant would receive a reasonable level of protection if she returned to Rwanda in the foreseeable future.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s.36(2)(a) of the Migration Act.
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.
Joseph Lindsay
Member

[2019] AATA 6135

31 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing