1612243 (Refugee)

[2019] AATA 5886

1612243 (Refugee) [2019] AATA 5886 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612243

COUNTRY OF REFERENCE:                   Rwanda

MEMBER:Nora Lamont

DATE:18 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2019 at 9:28am

CATCHWORDS

REFUGEE – protection visa – Rwanda – particular social group – lesbian – single woman with child – person with severe mental health issues – attacked and raped – social stigma – attempted suicide – post natal depression – post traumatic stress disorder – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R, 91S, 499

Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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 applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Rwanda, applied for the visa on 19 August 2014 and the delegate refused to grant the visa on 21 July 2016.

3. The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

5. 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.

   Refugee criterion

6. 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).

7. 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.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. 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’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

18. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in this case is whether the applicant will be harmed in Rwanda because of her sexuality, her mental illness and as a single woman with a child. The Tribunal has concluded that the matter should be remitted for reconsideration.

20. Based on copies of the applicant’s passport which was provided to the Department, the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Rwanda and has assessed her claims against that country.

21. On the basis of the above mentioned reasons, the Tribunal accepts the applicant’s identity as claimed.

22. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country.

23. The applicant arrived in Australia on [date] July 2014 on a [temporary] visa. She lodged her application for a protection visa on 19 August 2014.

24. The applicant’s claims as summarised by the delegate are as follows: [1]

    ·The applicant left Rwanda because her life was in danger with limited security and regular persecution. She could be killed at any time

    ·She experienced harm many times including the first time her cousin [Mr A] tried to rape her two times; the second time on 25 March 2014 the brother of her girlfriend [Ms B] called [Mr C] came to her home and brutally slapped her the neighbours arrived and helped her; [in] April 2014 on the community work day the applicant and [Ms B] went to do community work. The executive cell gave a speech about abnormal people that the community needed to keep their distance from. The applicant and [Ms B] were taken to the front and people told to ensure they did not contaminate boys and girls by their bad behaviour. After this all the people were laughing at them, humiliating them and even beating them.

    ·On 2 May 2014 unknown people attacked the applicant when she was coming from work and almost beat her to death. She informed the police and local authorities but no action was taken on her case.

    ·On 14 May 2014 she was beaten by her neighbour at 7pm

    ·She fears being killed in Rwanda. There is no one to protect her from beatings and humiliation

    ·She fears harm from [Mr A, two other named individuals] and the whole society

    ·The police did not investigate and identify the people who beat the applicant and her girlfriend

    ·She got a warning message telling her that she will be killed as long as she is a lesbian

    [1] Home Affairs [file number]

25. The applicant provided a statutory declaration to the Department dated 7 November 2014 with further claims as summarised by the delegate as above: [2]

    [2] Home Affairs [file number]

    ·She comes from a catholic family

    ·She fears harm from the community on account of her sexuality as a lesbian and her status as a young single woman. The Rwandan authorities will not protect her.

    ·She has been violently attacked and raped by members of her family and the local community

    ·If forced to return to Rwanda she fears being sexually assaulted, beaten, tortured, detained and killed

    ·In [year] she started high school as a boarder at [a] High School

    ·In about [year] she began to realise she had sexual feelings towards women. She was fearful of how her friends would react so did not tell anyone

    ·In [year] she travelled to [Country 1] for University study. Her mother’s relative, [Ms D] paid her university fees. On arrival in [Country 1] she met [Ms B] also from Rwanda and they decided to rent accommodation together. They lived together until the end of the applicant’s studies in 2013.

    ·After a month or so of living together they shared their true feelings, formed a romantic relationship and became girlfriends.

    ·In July 2013 the applicant finished studying and returned to Rwanda. [Ms B] stayed in [Country 1] to finish her studies and they spoke on the telephone almost every day

    ·In August 2013 she began working for [Association 1 in several roles]

    ·In September 2013 her cousin [Mr A] visited the applicant. He threatened her and attempted to rape her. The applicant said she would scream and make noise. He left.

    ·The following day [Mr A] called her and said he wanted to come over to apologise. She though that he was being genuine and said he could come over

    ·Late that afternoon [Mr A] arrived with a male friend. They sat in the lounge. He asked for a mirror and the applicant told him it was in the bedroom. He said he could not find a mirror, so the applicant went to the bedroom to help. [Mr A] asked her about the clothes she was wearing and he pushed her onto the bed. His friend came into the room and held her hands down while [Mr A] raped her. [Mr A] told her she had to change, she was not behaving like a proper African girl and he would do his best to change her. [Mr A] left.

    ·She was scared to report the incident to the police in case other people found out. She thought her sister might have been involved. She worried that is her sister and [Mr A] was sent to jail, she would have to look after their children. She was worried she would be ostracised by her family.

    ·She attempted suicide and [Ms B] visited her in the hospital.

    ·She began to have difficulties at work. Her supervisor asked her if she was a lesbian and she denied it

    ·In late October 2013 she took leave from work and travelled to [Country 2] to visit her mother’s relative [Ms D]. She told [Ms D] about her sexuality and [Ms D] refused to help her stay in [Country 2].

    ·On 5 January 2014 she returned to Rwanda and her job at  [Association 1]. Shortly after this [Ms B] returned from [Country 1]. Hey moved into together in [a location].

    ·From the start they had problems with harassment and verbal abuse from their neighbours. She was also pushed and spat upon.

    ·The applicant could not stay in Rwanda. [Ms D] helped the applicant apply for a visa to travel to Australia. She is not sure why [Ms D] stated on the application that she was her biological sister. Culturally they refer to women who are close as ‘sister’.

    ·She decided to return to [Country 1] because she was desperate to leave Rwanda. In [Country 1] she completed her fieldwork program for her [qualification].

    Tribunal Hearing

26. At the Tribunal hearing the applicant spoke of her family she has an older brother and sister and both of her parents are deceased. She completed year 12 and went on to get a Bachelor’s degree in [Discipline 1] and a Masters [in the same discipline] in [Country 1] from 2011 until 2013. While she was in [Country 1] she met a woman named [Ms B]. They met in a hotel where they were staying she was happy to meet other Africans in [Country 1]. They became friends and then moved in together and started a romantic relationship. [Ms B] was studying her Master’s [degree].  After the applicant completed school she returned to Rwanda and got a job working [in a particular area]. [Ms B] joined the applicant back in Rwanda and they lived together again.  She applied for a visa to come to Australia for a conference. Whilst waiting for the visa she returned to [Country 1] to do some field work associated with her Master’s Degree.

27. When the applicant arrived in Australia she continued to speak to [Ms B] who had gone to [Country 3]. She did not want to be alone she told the applicant. The applicant has lost touch with [Ms B] now and has not spoken to her for about 7 months. She thinks she is in [Country 4] and maybe got a refugee visa. She saw it on Facebook that she might be in [Country 4]. The Tribunal asked if the applicant was sending money to the applicant when she was in [Country 3]. The applicant said she was sending her money as she needed it. She thinks she went to a refugee camp. The Tribunal notes that the applicant did provide [money transfer] documents showing that the applicant did send money to [Ms B] in [Country 3]. [3]

    [3] Home Affairs [file number] pages 97-99

28. The Tribunal asked the applicant if [Ms B] was the only girlfriend the applicant had and the applicant responded that yes she was the only one. During the time she was with [Ms B] her sister rang her as she had found out that she was a lesbian. There were some students I went to school with and they were from Rwanda and they knew and told her sister. Her sister said to her that ‘the dead do better than you’ meaning that if I had been dead it would have been better. The applicant spoke to her sister one more time before she left Rwanda but the applicant didn’t give her space as she was so very angry. The applicant said that her brother was getting information from her older sister and he was ashamed of her. The applicant has spoken to her older sister and brother since coming to Australia. We spoke about some memorials but I did not tell them about the baby. My brother said that no one accepts her being a lesbian. I come from a catholic family and my mother used to go to church but that was a long time ago. The Tribunal asked the applicant about the broader community and their feelings about her being a lesbian as she seemed to have a lot of trouble with her neighbours and others. She did not know anyone who was a lesbian no one would dare show it.

29. The people at her work asked her if she was a lesbian and she denied it. When asked why anyone would care about it she said she didn’t know why she only knows no one was happy with her at work. They were talking about it at work and in the community.

30. The Tribunal asked about her claims of rape against her cousin [Mr A]. The applicant said that [Mr A] thought she was going to be the family’s saviour as she had finished school and she would be the leader of the family due to her education but he called her a dog. He was angry that education meant nothing if I came back ‘like that’. The Tribunal asked how he knew she was a lesbian and the applicant said it was probably her older sister as her older brother wouldn’t try to harm her. One day [Mr A] came to visit and he tried to rape me. He left and then he came the second time as he said he wanted to apologise to me. I made the mistake of letting him come back to the house. He brought his friend so I thought it was ok. [Mr A] then raped the applicant. I did not go to the police as I didn’t want to bring more trouble to the family. The applicant said that her sister and [Mr A] were very close.

31. The applicant then said she tried to kill herself as she didn’t know what to do and she didn’t want to bring more shame or trouble onto the family. The applicant went to the hospital. [Ms B] did not visit her as she was not in the country and she doesn’t know why that was in her claims.

1. When she arrived in Australia she attended a conference and then applied for a protection visa. She went to [a refugee organisation] and it was there that she met the father of her baby. She met him there a few times and she felt lucky to meet someone from her own country. He comes from Rwanda but was born in [another country] and fled to Rwanda. When we started knowing each other he was living in [a regional town]and he had a girlfriend at the time. But then he broke up with his girlfriend she lived in [another city]. She didn’t ask too many questions as she wasn’t planning on a relationship. She moved into his house because she couldn’t afford to live anywhere else. The applicant was paying half of the rent. After she found out she was pregnant she wanted to get rid of it but then decided to keep it and she had been in a share house it wasn’t going to work for her as she was pregnant.

2. After she told him she wanted to get rid of the baby and she decided to keep it she said he didn’t much care as they were not in a relationship anyway. She has no idea about what he thinks he comes in at night and leaves before she wakes up. He did come to see me but now he knows I am a lesbian he doesn’t come to see me. She will need to live with him when she gets out of the hospital as she can’t afford anywhere else.

   Applicant’s mental health

3. The applicant has a history of mental health issues. In her claims she has stated she tried to commit suicide. The applicant became an inpatient at [a Mental Health facility] in August of 2018 for postnatal depression and post-traumatic stress disorder. She was discharged [in] October 2018. She was readmitted to the unit [in] November for concerns about possible deterioration in her mental health. The applicant was in still an inpatient when the hearing was held in December. The Tribunal considers the applicant to be a vulnerable person.

4. The Tribunal was keenly aware of the applicant’s mental health status and did attempt to postpone the hearing to give the applicant time to recover, however, the applicant and her treating doctors felt it was best for her to go ahead with the hearing. At the hearing the applicant was accompanied two carers from the hospital and her representative. The Tribunal made it clear to the applicant that it was aware of the applicants mental health state and assured the applicant that if she had any issues then we could reconvene at another time. The applicant was open and honest in her discussion with the Tribunal and was able to answer all questions and complete the hearing.

5. The Tribunal received a letter from [Dr E] the Psychiatry registrar for consultant psychiatrist [Dr F]. [4] The letter contained information on the applicant and her ongoing mental health issues. Specifically for purposes of the Tribunal the Doctor found that the applicant was having suicidal thoughts after she has depressive symptoms from pregnancy and sexual conflict after having a baby to a male friend she did not want a relationship with. This was combined with significant past trauma and sociocultural stigmatisation.

   [4] AAT Folio pages 63-64

6. The doctor noted that safety, reliability and predictability in the applicant’s environment are of paramount importance to maintain her mental health and parenting capacity and as she fears persecution if returned to Rwanda it is likely that her mental health will deteriorate. Any further deterioration may result in suicide or infanticide.

7. The Tribunal also received a Determination Regarding a Treatment Order from the Mental Health Tribunal for a sixteen week inpatient program. [5] The Tribunal also received several letters from the hospital indicating that the applicant did want to hold the hearing and did not wish to have the hearing postponed due to her mental health status.[6]

   Acceptance

   [5] AAT Folio pages 43-47

   [6] AAT Folio page 15

8. Overall the Tribunal found the applicant to be a credible witness. Her account of her past life in Rwanda and her relationships with her family and extended family were the same as her written claims and her statutory declaration. [7]

   [7] AAT Folio pages 26-28

9. The Tribunal accepts that the applicant is a lesbian and that she had her first relationship with [Ms B] when she was at university in [Country 1]. The Tribunal also accepts that the applicant has no family support and that her brother is ashamed of her and her sister thinks she would be better off dead. Further, the Tribunal also accepts that the applicant was subjected to torment as a lesbian in Rwanda after her classmates found out and spread this information. Country information supports the contention that whilst homosexuality in Rwanda is not illegal the topic of homosexuality is considered taboo. The LGTBI community is marginalised and stigmatised due to sexual orientation. LGTBI people in Rwanda must keep their sexuality and gender identity a secret to avoid physical and verbal abuse. [8]

   [8] >

   The Tribunal also accepts as part of her family’s non acceptance of her, her cousin [Mr A] raped her. The Tribunal finds that the applicant then had severe mental health issues and tried to commit suicide after this event. Country information shows that in Rwanda rape and violence against women is prevalent. According to the government’s 2010 demographic and health survey, two in five women reported suffering physical violence at least once since they were 15, while one in five had suffered sexual violence. [9]

   [9]

10. After arriving in Australia and having no support and with mental health issues she met the father of her baby.  They became friends and shared a rental unit as they both could not afford the rent on their own. They are not a couple. The Tribunal accepts that the applicant was not in a relationship with her baby’s father and has no plans to have a relationship with him and that she remains a lesbian.

11. The Tribunal accepts that the applicant has severe mental health concerns and has been hospitalised on several occasions for this mental health condition.

    Findings

12. The question then before the Tribunal is will the applicant face a real chance of serious harm based on her membership of several particular social groups lesbian in Rwanda, and lesbian with severe mental health. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. It is the Tribunal’s contention that country information demonstrates that the applicant would be subjected to marginalisation and physical and psychological abuse given that she is a lesbian. Societal attitudes towards the LGBTI community in Rwanda are poor at best, and her own family is ashamed of her and her sister told her she would be better off dead.  She would therefore be persecuted for being a lesbian if returned to Rwanda.

15. The applicant has had ongoing mental health issues since after she was raped by [Mr A] and attempted suicide. Country information shows that access to mental health treatment is poor in Rwanda, there is a social stigma attached to having a mental illness and poverty and lack of family support are contributing factors to marginalising those with a mental illness.[10]

    [10] >

    The US state Department reported in 2017 that there was one government psychiatric referral hospital in Kigali, with district hospitals providing limited psychiatric services. All other mental health facilities were non-governmental. [11] It is the Tribunal’s finding that the applicant would be unable to access adequate mental health care, and due to the stigma of having a mental health issue combined with the stigma of being a lesbian the applicant would suffer greatly if returned to Rwanda.

    [11] US State Department Country Report on Human Rights Practices 2017 Rwanda

16. The Tribunal has considered whether the applicant has the ability to avail herself of state protection. As country information has shown, although homosexuality is not against the law in Rwanda it is considered taboo and the LGBTI community is marginalised and stigmatised by people and they must hide their identity to avoid physical and verbal abuse. As stated above the persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.  The Tribunal is not satisfied that the applicant can avail herself to the protection of the state if returned to Rwanda.

17. With respect to the consideration of relocation, the Tribunal is not satisfied that the applicant can safely relocate to another part of Rwanda to avoid the harm she fears in her home area.

18. The Tribunal finds that the applicant has a real chance of serious harm arising from her membership of a several particular social groups, lesbian in Rwanda, and lesbian with severe mental health. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.

19. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

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

    Nora Lamont
    Member

    
    

    Submissions

    1. Letter from [Dr E] Pschiatry registrar for consultant psychiatrist [Dr F] at [named] Mother baby-unit dated 28 November 2018
    2. Letter from [Dr E] Pschiatry registrar for consultant psychiatrist [Dr F] at [named] Mother baby-unit dated 27 November 2018
    3. Mental Health Tribunal determination regarding a treatment order
    4. Submission from [a community legal centre]
    5. Written statement from the applicant dated 23 November 2018
    6. Birth certificate for the applicant’s daughter