1621023 (Refugee)

[2019] AATA 5554

1621023 (Refugee) [2019] AATA 5554 (15 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1621023

COUNTRY OF REFERENCE:                   Rwanda

MEMBER:Nora Lamont

DATE:15 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 April 2019 at 12:02pm

CATCHWORDS
REFUGEE – protection visa – Rwanda – particular social group – member of the LGBTI community – lesbian – ceased all contact with former girlfriend of 12 years – not involved in lesbian community in Australia – entered into an exclusive married relationship with a man and has two children – women in Rwanda – rape claims – mental ill-health – symptoms of PTSD and depression – ability to present evidence and arguments – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 5 December 2014 and the delegate refused to grant the visa on 22 November 2016.

3. The applicant appeared before the Tribunal on 12 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili 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.

18. 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

19. 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

20. The applicant was born on [date] in [Country 1] to Rwandan parents. She is a citizen of Rwanda. In support of her identity the applicant has provided a certified copy of her Rwandan passport on which she arrived in Australia and she presented a certified copy of her Rwandan ID card to the Department. The Department had no issues with the applicant’s identity therefore in the absence of any evidence to the contrary the Tribunal accepts that the applicant is a national of Rwanda and that Rwanda is the applicant’s receiving country.

21. The Tribunal is satisfied on the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3).

22. The applicant was granted [a scholarship] [to] undertake a course in [Country 2] and Australia. The applicant arrived in Australia [in] October 2014. On 5 December she applied for a protection visa.

23. The applicant’ claims for protection as summarised by the delegate are as follows: [1]

    [1] Home Affairs [file number]

    ·She was born in [Country 1] to Rwandan citizen parents. She lived in [Country 1] with her parents and [siblings] until 1998 due to her father’s employment.

    ·The applicant’s father, an alcoholic, was a violent man. He would often beat the applicant’s mother and force the applicant and her siblings to sleep outside their house. Due to the violence perpetrated on the applicant, her mother and her siblings, the applicant felt very negatively towards men and towards the relationship between men and women

    ·In 1988 the applicant’s father passed away. The applicant moved back to Rwanda with her mother and [a few] of her siblings, whilst one of her sisters remained in [Country 1]

    ·The applicant’s propensity to only socialise with girls at school sparked concern from her mother, who believed that the applicant was ‘bewitched’.

    ·Whilst at boarding school in Kigali, the applicant befriended a fellow female student, [Ms A]. They were inseparable at school and overtime they formed a romantic relationship

    ·In approximately 2004 or 2005 the applicant’s family started putting pressure on her to get married. The applicant refused to comply with her family’s request and she was kicked out of the family house. The applicant was subsequently ostracised by her family.

    ·After graduating from University, the applicant started living with her Uncle’s family in Kiigali. She would from time to time be asked to leave by her Uncle due to her sexuality. She would then be allowed to move back in as her Uncle believed she would change. Whilst living at her Uncle’s house, a neighbour, [Mr B], started courting the applicant. The applicant turned him down and eventually told him that she was not interested in men.

    ·In 2009 on one of the occasions where the applicant was living away from her Uncle’s house, [Mr B] followed her to her residence and raped her. The applicant was devastated and confided in [Ms A]. [Ms A] asked her if she wanted to report it to the police, the applicant said no as [Mr B] threatened to kill her and her family if she did. The applicant also went to the church and spoke to a lady about the rape. The lady was very nice to her and encouraged her to be strong and live with it.

    ·In 2011, the applicant started working at [Employer 1]. Her supervisor, [Mr C], asked the applicant out. The applicant refused [Mr C]. [Mr C] was then told by some colleagues at work that the applicant was not interested in men.

    ·In 2013 the applicant was accused of embezzlement by [Mr C] and was sacked. The applicant disputed this accusation and took the matter to senior management. The applicant was found not in fault after an investigation and reinstated to her position

    ·In 2014, [Mr B] learnt that the applicant was travelling to Australia and wanted to reconcile with the applicant. He paid the applicant a visit and raped her again.

    ·After the applicant arrived in Australia, [Mr B] contacted the applicant on [social media]. He commented on one of the applicant’s photographs that she looked different and wen was she coming back to Rwanda. The applicant responded that she was studying in Australia and that she would not return to Rwanda. On the advice of her friend the applicant ‘[removed]’ [Mr B] on [social media].

    ·In February 2015 the applicant sublet her apartment to a couple, [Mr D] and his wife. In September 2015 the applicant entered into a sexual relationship with [Mr D] as she felt lonely and wanted a child. The applicant fell pregnant right away and gave birth to a son in [Month, Year]. [Mr D] and his wife continued to live in the applicant’s apartment until after the applicant’s protection visa interview

    ·Whilst the applicant was pregnant, she met a Rwandan lesbian [Ms E]. They saw each other once and when the applicant said she was expecting a baby, [Ms E] left.

    ·The applicant fears that if she were to return to Rwanda now or in the reasonably foreseeable future, she will be subjected to rape and killing, due to her sexuality. She instructs that the authorities in Rwanda are not willing to protect her from the feared harm and that nowhere is safe in Rwanda.

24. At the beginning of the Tribunal hearing the applicant’s representative told the Tribunal that the applicant would need to feed her baby and that she may have an issue with speaking about some of her claims in front of the interpreter as he was male. The Tribunal stated that at any time she needed to feed her baby we could take a break. The Tribunal asked if the applicant herself had a problem with the male interpreter and she said no she was just flagging it based on gender guidelines. The Tribunal told the applicant to indicate at any time if she was uncomfortable discussing any matter with the Tribunal to which she agreed.

    Credibility

25. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

26. The Tribunal also accepts that 'if the applicant's account appears credible, he/she should, unless there are good reasons to the contrary, be given the benefit of the doubt. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

27. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

28. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

29. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

    Assessment of claims

    Mental health

30. The applicant has provided evidence that she has been receiving mental health therapy since 2015. [2] The Tribunal accepts that the applicant has mental health concerns as identified in the documentation provided. The Tribunal has taken into account the applicant’s mental health symptoms and noted the reports provided. In assessing the applicant’s oral evidence, the Tribunal considered that she provided information indicating that she displays symptoms of PTSD and depression. The Tribunal had regard to the AAT’s ‘Guidelines on Vulnerable Persons’ and encouraged the applicant to make the Tribunal aware if she had concerns that she was unable to present her evidence and argument or if she needed a break at any time.

    [2] AAT Folio Page 51, pages 32-35

31. The Tribunal remained alert for any evidence that the applicant was unable to present evidence and arguments. However, the Tribunal found the applicant responded appropriately to questions and the Tribunal identified no reason to consider that the applicant experienced difficulties in presenting her evidence. The Tribunal is satisfied the applicant was fully able to present evidence and arguments.

32. Country information gathered by the Tribunal shows that the government in Rwanda has been making mental health a priority in recent years and that they have integrated mental health wellbeing not only in health care centres but throughout communities and districts to combat the ignorance around mental health.[3] Further information indicates that major strides are being made in the decentralization and integration of mental health care services into the national health system and psychotropic drugs are integrated in the Essential Medicine List and to be available at all health facilities.[4]

    [3] Addressing mental health challenges in Rwanda

    [4] Rwanda celebrated the World Mental Health Day 2017

33. The Tribunal was told by the applicant that she speaks with her family. There is nothing to suggest that the applicant would not have the support of her family members upon return to Rwanda and again, the Tribunal notes that the applicant is married so the Tribunal considers that the applicant would not return as a single woman but as a married woman.  Further, there is nothing before the Tribunal to indicate that the applicant would be denied access to mental health services and medication upon her return to Rwanda for a convention based reason or for any other reason.

    Lesbian relationship

1. The applicant spoke of her relationship with her former girlfriend [Ms A]. She said they started their relationship in high school and that they were together for twelve years from 2002-2014. The Tribunal asked what types of things they did together and the applicant said they shared love; they enjoyed everything together, went to clubs and just did normal things. They were together but they never physically lived together.

2. The Tribunal asked the applicant how [Ms A] felt about her coming to Australia and she said she didn’t care. They had not planned anything for their future. The Tribunal queried how they had been in a relationship for twelve years but did not plan anything for the future and that [Ms A] did not care that she was coming to Australia. The applicant responded that she was coming to do a course and if there was a change she would let her know. The Tribunal asked the applicant if she had planned to go back. The applicant responded that she knew there was freedom in Australia for lesbians and gays and if she found it she would let [Ms A] know. There is no freedom in Rwanda.

3. The Tribunal asked her when she last spoke to [Ms A] and she said she never spoke to her again once she arrived in Australia. The applicant said it was because when she got here she went into a depression, she had depression before but it was much worse than before. She also said that maybe [Ms A] couldn’t get a hold of her due to security. However, she never spoke with her again.

4. The Tribunal is not satisfied that the applicant ever was in a long term same sex relationship with [Ms A]. The applicant said she was in a relationship with [Ms A] for twelve years yet when she arrived in Australia she never spoke with her again. When asked how [Ms A] felt about her coming to Australia she said she didn’t care. The Tribunal finds it implausible that the applicant’s claims around being a lesbian in Rwanda centre on her relationship with [Ms A] yet she simply arrives in Australia never to speak to [Ms A] again.

5. The applicant did not have any documentary evidence of her relationship with [Ms A]. There were no photos provided or any evidence that [Ms A] existed let alone that she spent twelve years of her life with her. Further, the applicant said she was depressed when she arrived in Australia and that it was worse than the depression she had before. However, she did not reach out to [Ms A]; she did not try to contact her in anyway. The Tribunal would consider that after twelve years in a committed relationship [Ms A] would be the person the applicant reached out too.

6. When asked what the couple did together the applicant only answered that they did loving things and went to clubs. She did not elaborate on their daily life or what they did as a couple, any trouble they may have had as a couple or any other matter. The applicant did not live with her partner at any time during the course of their claimed twelve year relationship. The Tribunal considers that the applicant was friends with someone named [Ms A] and not in a lesbian relationship as claimed. The Tribunal considers that the applicant may have experimented with her sexuality with [Ms A] but does not consider that she was ever in a twelve year lesbian relationship with her.

7. Further, since being in Australia the applicant has not engaged in any relationship as a lesbian, she did not seek out the lesbian community, she did not have any dealings with the LGTBI community instead she has been in an exclusive married relationship with a man and has two children from this relationship.

8. The applicant claims that she originally only had sex with a man so she could have a child. There are cases where lesbians do have children simply because they want a child, not for any other reason. However, in this case the applicant not only had a child but went onto marry the father of her baby and also have a second child with him. In considering the evidence before it, the Tribunal does not accept that the applicant was or is a lesbian.

9. The Tribunal has then gone onto consider if the applicant is bisexual. Given the lack of credible evidence and the abrupt ending to the applicants claimed relationship with [Ms A] and given that the Tribunal does not accept that the applicant was ever in a lesbian relationship the Tribunal is not satisfied that the applicant is bisexual. Further, since arriving in Australia the applicant has not engaged in any lesbian or bisexual relationships or engaged the LGBTI community in any way instead she has moved into a committed heterosexual relationship.

10. Therefore, the Tribunal concludes from the evidence before it that the applicant is not a lesbian or bisexual and in her circumstances does not have a real chance of serious harm or a real risk of significant harm upon return to Rwanda.

    Rape

11. The applicant claims she was raped in [Country 1] when she was [age] years old. She said she was walking home from school and was raped by a solider from [Country 1]. She told her parents who then went to the police, but nothing was done as they said she did not have any proof of the rape. After this incident she changed schools.

12. The Tribunal referred to a letter dated [January] 2015 from [an NGO] which states that the applicant reported that she had been raped at a younger age by Maji Maji rebels on an undisclosed number of occasions. The applicant responded that it was only once and that they must have combined the other rapes in Rwanda with this one. The Tribunal accepts that the applicant was raped as a young girl and the explanation for the discrepancy in the document.

13. The Tribunal asked the applicant about [Mr B] and she said he was her neighbour and he would talk to her. He wanted to have a relationship with her but she refused and told him she was a lesbian. He said that was very bad for her to be a lesbian. In 2009 he came to her home and raped her. The Tribunal read back her statutory declaration dated 16 June 2015 that said she did not go to the police because he had threatened her. She said he told her I am a solider you can’t bring me in any other place and I will tell people you are a lesbian. I will report to the police that you are a lesbian.

14. The Tribunal read a passage from the [NGO] letter dated [January] 2015 in which it says that she was beaten and her head was stepped on by heavy boots. She responded that he pushed her and she hit her head. She did not go to the police due to his threats. She did however move away. She said she told her mother and her mother blamed her because she was a lesbian.

15. The applicant claimed at the PV interview with the Department that [Mr B] raped her again in 2014. However, these claims were not in her protection visa application. When asked about this she looked at her statutory declaration and pointed out number 32 where it says that while she remained in Rwanda [Mr B] continued to pursue and harass her. The Tribunal said it does not say he raped you again. The applicant said she was confused and stressed during this time.

16. The Tribunal asked how [Mr B] knew where she lived if she had moved to get away from him. She said that her friends told him where she lived. He came to her house said he wanted to reconcile and then he raped her again.  She said that once she arrived in Australia [Mr B] contacted her on [social media]. She said he wanted to know when she would be back in Rwanda. She said she told him she was studying. She has since blocked him. The Tribunal said they looked at her [social media] account and she has a friend on their called [Mr B], the applicant said it was a different [person].

17. The applicant produced a document from [a medical provider] dated [March] 2015 by which shows that she has [a sexually transmitted disease] and asserting that she got it from [Mr B] and this is proof that she was raped by him in 2014.

18. The applicant also said that [Mr B] contacted her on [social media] and that she responded. When the Tribunal looked at her [social media] page she was friends with someone named [Mr B]. The Tribunal finds it implausible that the applicant would have a friend from Rwanda on [social media] with the same name as a man who allegedly raped her twice. Further, if the applicant had indeed raped her two times the Tribunal considers that she would not be inclined to respond to his messages.

19. Given the applicant’s inconsistency the Tribunal does not accept that the applicant was raped by [Mr B] on two occasions. The applicant’s written claims are that [Mr B] raped her once and it wasn’t until the Department interview that she spoke of being raped by him a second time. Further, the applicant claims she moved away after the first rape so [Mr B] did not know where she was, yet she says he came over and raped her again. When asked how he found out where she lived she said her friends told him. It seems almost unbelievable that friends would tell a man who raped the applicant where she was living.

20. Taking into account all of the findings the Tribunal does not accept that the applicant faces a real chance of persecution now or in the reasonably foreseeable future from [Mr B].

    [Mr C] and [Employer 1]

21. The applicant claims that in 2011 when she was working at [Employer 1] her supervisor [Mr C] asked her out. The applicant refused. In 2013 the applicant was accused of embezzlement by [Mr C] and was sacked. The applicant was eventually found not to be at fault and was reinstated.

22. The applicant said that people at her workplace told [Mr C] she was a lesbian and this is why he claimed she embezzled money. The Tribunal accepts that the applicant had issues with [Mr C] at [Employer 1], however, there is little to no evidence that the issue stemmed out of the applicant being a lesbian. Nor did this incident seem to have a detrimental outcome as the applicant said she was reinstated into her position.  

23. Accordingly, the Tribunal does not accept there is a real chance the applicant faces serious or significant harm from [Mr C] or anyone else associated with [Employer 1].

    Membership of a particular social group

24. The Tribunal has then gone onto consider whether the applicant is a member of a particular social group namely:

    ·Member of the LGBTI community in Rwanda and/or lesbians/perceived lesbians in Rwanda/or bisexuals in Rwanda/Rwandan’s with mental disorders/mental ill-health, members of the LGTBI community with mental ill health and/or women in Rwanda.

25. Given the applicant is now married with two children she would not be a member of the LGTBI community in Rwanda or a lesbian or even a perceived lesbian or bisexual upon return. Given that the Tribunal does not believe the applicant ever was a lesbian and does not consider the applicant to be bisexual therefore, the Tribunal is not satisfied the applicant is a member of a particular social group LGTBI community in Rwanda, lesbians, perceived lesbians a member of the LGTBI community with ill health or bisexuals in Rwanda.

26. The Tribunal has gone on to consider if the applicant is a member of a particular social group Rwandan’s with mental disorders/ mental ill-health, or women in Rwanda. As discussed above under ‘mental health’ the Tribunal has found that mental health services are provided and the applicant will not be targeted because she has mental ill health.

27. The Tribunal has considered all of its findings above both singularly and cumulatively, and finds there is not a real chance the applicant will be persecuted for reasons of her membership of a particular social group: Member of the LGBTI community in Rwanda and/or lesbians/perceived lesbians in Rwanda/or bisexuals in Rwanda/Rwandan’s with mental disorders/mental ill-health, members of the LGTBI community with mental ill health and/or women in Rwanda.

    Political opinion/actual and imputed

28. The applicant’s representative suggested that the applicant would suffer serious harm based on her political opinion both actual and imputed. The Tribunal heard no evidence that the applicant was political in anyway had come to the attention of authorities or in any way was considered political whether actual or imputed. Therefore, accordingly the Tribunal has no reason to further engage with this suggestion and does not accept that the applicant will be harmed based on political opinion actual or imputed. The Tribunal finds that the applicant does not have a well-founded fear of persecution on this basis.

    Marriage and children

29. The applicant is currently married to an Australian citizen and has two children (also Australian citizens).

30. The Tribunal pointed out in the applicant’s statutory declaration dated 2 September 2016 she stated that the opportunity to have a child when [Mr F] moved into her apartment. It was not something that she had thought through or planned but she did not want to be alone. Further, she said having a child with a man in no way changes my sexuality I continue to be attracted to women and would desire to have a relationship with a woman. [5] The applicant said she continued to be attracted to the same sex. When asked now that she is married with children how does she feel about still wanting a relationship with a woman?  She said that it is a genuine relationship and exclusive as they are married and she respects him.

    [5] Department Folio [file number] page 76

31. The applicant said that after the baby was born she had depression and [Mr F] gave her a lot of support and she started developing feelings for him.

32. The applicant claims she cannot return to Rwanda as she has freedom in Australia and protection from the Australian government. She fears harm by harassment and discrimination. She cannot find work; she has depression and will not have treatment. Her family abandoned her.

33. On the issue of return to Rwanda the applicant is now a married woman with two children. She will not be returning to Rwanda as a single perceived lesbian woman. Further, the applicant stated she would not be able to find work. The applicant holds a [qualification] and held employment for several years prior to her arrival in Australia. The Tribunal is satisfied that upon return to Rwanda the applicant would be able to find gainful employment again.

    Conclusion

34. Given the credibility concerns of the tribunal and for the reasons above the Tribunal does not find that there is a real chance of the applicant being persecuted now or in the reasonably foreseeable future on return to Rwanda for any convention related reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution within the meaning of the Convention.

35. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Rwanda, there is a real risk that the applicant will suffer significant harm for being a lesbian, a perceived lesbian or imputed lesbian from the authorities, her family or [Mr B] on return.

36. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

37. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

38. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    DECISION

39. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Nora Lamont
    Member