1621866 (Refugee)

1621866 (Refugee) [2021] AATA 5073 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1621866
COUNTRY OF REFERENCE:                   Rwanda
MEMBER:Brendan Darcy
DATE:17 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 November 2021 at 11.02am
CATCHWORDS
REFUGEE – protection visa – Rwanda – ethnicity – Tutsi born in Democratic Republic of the Congo gained Rwandan citizenship – targeted to be forcibly enlisted into army – detained and beaten – credibility – multiple trips to neighbouring countries and returns – implausible accounts of escaping from detention – departure on own passport – country information – political and social aspects of ethnicity – no recent serious incidents of ethnic violence – remote chance of serious harm – 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
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIMA v Lay Lat [2006] FCAFC 61
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (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

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).
The applicant, who claims to be a citizen of the Republic of Rwanda (Rwanda), applied for the visa on 17 January 2014 and the delegate refused to grant the visa on 18 November 2016.
The applicant appeared before the Tribunal on 12 August 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.
RELEVANT LAW
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
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.
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.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
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.
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.
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.
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.
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.
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
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).
‘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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the applicant. This occurs if the applicant meets the refugee criterion, and if not, if he is entitled to complementary protection. A further issue that arises is whether Australia is taken not to have protection obligations with respect of the applicant, because of the right he has to enter and reside in member states of the East African Community (EAC).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant was born on [date] in [Town 1], North Kivu province in the Democratic Republic of the Congo (DRC).
The applicant lived in the DRC until July 1996 when he fled to Rwanda to escape conflict and persecution of Tutsi people. He was naturalised as a Rwandan citizen [in] August 2003 at which time he renounced his citizenship of the DRC.
The applicant provided a copy of his Rwandan passport number [number] which was issued [in] 2010 and expired [in] 2015. The passport was issued in Kigali, Rwanda. The passport lists his place of birth as [Town 2] in Rwanda. The applicant explained in his statement that this was where his mother was born.[1] The applicant also provided a copy of his Rwandan national identity card.
Visa history
[1] [Home Affairs reference number] folio 36.
The applicant was granted a [business] visitor visa on 15 October 2013 and arrived in Australia [in] October 2013.
The applicant lodged the present application for a Class XA Subclass 866 protection visa on 17 January 2014 while still lawfully in Australia.
On 20 January 2014 the applicant was granted a Bridging Visa A associated with the present application. This visa remains in effect and the applicant is in Australia as a lawful non-citizen.
Written claims
Birth, family composition, ethnicity, education and work history
The applicant’s father was Congolese and his mother Rwandan. His father was in a polygamous marriage with his natural mother and another woman, also of Congolese nationality. His mother died of illness in 1994 and his father was killed in 2001. He has four sisters and a brother with whom he shares both parents, and two half-brothers who were born to his father’s other wife. He claims his siblings and half-siblings were all born in the DRC.
He claims to only know the whereabouts of, and remain in contact with, a younger sister [Ms A], who is also living in Rwanda and has assumed Rwandan nationality.
The applicant claims to belong to the Tutsi ethnic group and to have no religion. At the time he lodged his application he could speak, read and write Kinyarwanda and Swahili languages and speak English.
The applicant claims that after fleeing the DRC he lived with a maternal uncle in Kigali, Rwanda until his departure for Australia in October 2013.
The applicant claims to have been studying [Subject 1] at [Institution 1] in Goma prior to fleeing to Rwanda in 1996. He claims to have returned to study completing a diploma in [Subject 1] in 2006.
The applicant claims he has worked and volunteered with community organisations usually as an [Occupation 1] since 2000 with persons who were victims of the Rwandan genocide and diagnosed with AIDS. He also claims to have performed as a [performer] under [a stage name] and periodically written articles about [performance] for local newspapers.
The applicant claims to have founded an organisation known as [Organisation 1], also known as [Organisation 1, alternative name] in 2010 to assist victims of the Rwandan genocide.
Travel prior to arrival in Australia
As stated above the applicant fled the DRC for Rwanda in July 1996.
The applicant claims to have returned to the DRC for a single day [in] December 2010 to see the changes that had taken place near the border with Rwanda.
It was through [Organisation 1] he met [Ms B], a teacher from [a] College in Perth, Western Australia in October 2010. In coming years [Ms B] organised fundraising projects in Australia, and returned twice to Rwanda with other volunteers to organise [work] projects.
The applicant visited [Country 1] in September 2011 travelling through [Country 2] to obtain information to obtain a visa to allow him entry to Australia. In December 2011 he visited [Country 1] via [Country 2] to lodge an application an Australian visa. In June 2012 he visited [Country 1] via [Country 2] furthering his visa application. In September 2013 he travelled to [Country 1] to pick up his Australian [business] visitor visa.[2]
[2] [Home affairs reference number] folios 50, 88
He departed Rwanda on [date] October 2013 and arrived in Perth, Western Australia on [date] October 2013.
The applicant claims that despite his naturalisation he is known to Rwandan authorities as a Tutsi originally from the DRC. He is well known in Rwanda for his community work but had attempted not to make public his background as a refugee from the DRC. He states that he informs people he undertook schooling in Rwanda and [Country 3] to explain how he speaks both Kinyarwanda and Swahili. He poses as Rwandan by birth as there are more opportunities for Rwandan-born citizens.
The applicant claims he became a target of Rwandan authorities to be forcibly enlisted into the Rwandan army. The applicant claims that refugees originating from the [Town 1] and [Town 3] communities in the DRC were targeted to join the Rwandan army’s campaign alongside the M23 movement in the DRC at the time, as they had knowledge of the local area and language where the fighting was taking place.
The applicant claims to have connections to the [Town 1] (from North Kivu) and [Town 3] (from South Kivu) communities in Kigali.
While working at [Organisation 1] in 2011 the applicant claims he was approached by a Congolese man who asked the applicant to join the fight for their people in the DRC. This man told the applicant the Rwandan government would support him if he chose to join the fight. The applicant declined due to his work helping people in Kigali.
The applicant claims that following this [Ms B] invited him to Australia to speak about the work of [Organisation 1] and participate in some courses. His initial application for a visa was refused, but he was informed he could lodge another application if he produced enough evidence.
The applicant claims that in 2013 he was picked up off the street by two police officers, as he was unable to produce any identification when stopped. He was detained in [a] detention centre in [a] sector or Kigali City. He was held with a number of other men who had also failed to produce identification when stopped by police.
He claims to have been held in the detention centre for four or five days, he was beaten by both guards and fellow detainees to extort money. He was taken into a small room by a police officer who told the applicant he needed to go and fight in the DRC. When the applicant refused the police officer beat him with a stick.
The applicant claims he and other detainees were taken to an army barracks by truck for training, but at this point he was taken to hospital as he was suffering from malaria. He was told by doctors he would need to stay in hospital for five days, but was fit enough that he ran away after two days assisted by a member of the kitchen staff he knew through his community work. He returned to his uncle’s place before departing for [Country 1].
The applicant claims that the police and army had the names of those taken into detention but not their addresses. They would pick people up from public places and not their homes, to avoid interference from family members.
The applicant applied a second time for an Australian visa, as he was fearful of being picked up by Rwandan authorities following his escape from hospital. He convinced the owners of two newspapers he had written articles for on an ad hoc basis to provide him documents to show he had a two-year contract.
The applicant returned to Kigali from [City 1, Country 1], transiting through [Country 2] on 17 October 2013. While in [City 1] he had been granted his [business] visa at the Australian embassy.
While having lunch in a restaurant in Kigali on 18 October 2013 he was approached by a person in civilian clothing who invited him outside to pass on some good news. The applicant presuming the news related to [Organisation 1] did so. Once outside the applicant claims he was then taken at gunpoint to a four-wheel drive and driven to [a] police station. The man from the restaurant left the applicant with police officers there and told them he was not his prisoner but that he would come and collect him. The applicant was put in a room with other people.
One of the police officers was the sister-in-law of the applicant’s aunt. The applicant explained to her that he had an Australian visa and she said she would help him. Later that night she aided his escape under the premise of escorting him to the toilet. The applicant stayed with a friend that night, returned to his uncle’s house the following night and then hid in [a named location] until he left Rwanda [in] October 2013.
The applicant fears he will be forcibly enlisted into the military and sent to fight in the DRC if returned to Rwanda. He fears the Rwandan authorities will do this to him. He fears Rwandan authorities will be able to find him as they have already picked him up and attempted to forcibly enlist him on two prior occasions indicating the authorities will not protect him from this harm.
Other written material lodged with the Department
On 17 March 2014 the applicant lodged a written statement with the Department saying that while [Organisation 1] sponsored his [business] visa he was no longer being supported by them.
Departmental interview
The applicant attended an interview with the delegate on 5 June 2014. During the interview the delegate put to the applicant a number of questions concerning his travel to [Country 1] and how this was possible if the Rwandan authorities were targeting him; whether he had permission to live there as a citizen of an EAC nation; delay in his application for asylum after his arrival in Australia; why he specifically would be targeted by Rwandan authorities as one of an estimated 91,000 refugees present in Rwanda at the time; his knowledge of the M23 movement and its demise in 2013; and whether he would still be sent to fight in a conflict that had ostensibly ended.
The applicant’s representative made written submissions to the delegate on 19 June 2014 that outlined the practice of forced enlistment by the Rwandan army in the period prior to 2013.
Decision of the delegate

A delegate acting on behalf of the Minister refused the visa application on 18 November 2016.
The delegate found that the applicant was a citizen of Rwanda and Rwanda was the country of reference for assessing protection claims under the Refugees Convention.
The delegate considered whether the applicant had statutory effective protection in the EAC on the basis of the applicant’s Rwandan citizenship, and noted that Rwanda was a member of the Economic Community of West African States (ECOWAS). The delegate found that Rwandan citizens may enter any ECOWAS country without a visa for a 90-day stay without condition and apply for a residency permit for a period of three years to engage in income-earning employment.
The delegate found pursuant to s 36(3) of the Act that the applicant has the right to enter and reside in an ECOWAS member state other than the country of reference. At the time he lodged his application for protection, the applicant held a valid Rwandan passport and the delegate found he had not taken all possible steps to avail himself of this right. The delegate did not find that s 36(4), 36(5) or 36(5A) operated to exclude the applicant from the operation of s 36(3).
Application for review before the Tribunal
The applicant lodged an application for review before the Tribunal on 20 December 2016 and attached a copy of the notification of the refusal decision and the decision record with the delegate’s written reasons.
The applicant has not made further submissions to the Tribunal prior to the hearing.
As mentioned above, the applicant appeared at a hearing before the Tribunal on 12 August 2021. The hearing was conducted by video link between the Tribunal’s Perth registry and Melbourne. At the end of the hearing, the applicant was provided with an opportunity to forward to the Tribunal any further documents or submissions and to do so by 26 August 2021. (This was offered as an opportunity; no specific post-hearing submissions were requested.)
No further documents or submissions were submitted.
The applicant did not have the assistance of a representative throughout this review.
There were no non-disclosure certificates attached to the applicant’s Departmental or Tribunal files.
Country information: Rwanda
Rwanda, officially the Republic of Rwanda, is a landlocked country in the Great Rift Valley, where the African Great Lakes region and East Africa converge. Located a few degrees south of the Equator, Rwanda is bordered by Uganda, Tanzania, Burundi and the Democratic Republic of the Congo.
According to the 2020 US Department of State country report on human rights practices in Rwanda,[3] Rwanda is a constitutional republic dominated by a strong presidency. The ruling Rwandan Patriotic Front led a governing coalition that included four smaller parties. In 2017 voters elected President Paul Kagame to a third seven-year term with a reported 99 per cent of the vote and a reported 98 per cent turnout. One independent candidate and one candidate from an opposition political party participated in the presidential election, but authorities disqualified three other candidates. In the 2018 elections for parliament’s lower house, the Chamber of Deputies, candidates from the Rwandan Patriotic Front coalition and two other parties supporting Rwandan Patriotic Front policies won all except four of the open seats. For the first time, independent parties won seats in the chamber, with the Democratic Green Party of Rwanda and the Social Party Imberakuri winning two seats each.
[3] US Department of State: “2020 Country Report on Human Rights Practices: Rwanda”, Executive Summary, Document #2048150 - ecoi.net SUMMARY
The same report further states in relation to members of national, racial and ethnic minority groups that the constitution provides for the eradication of ethnic, religious and other divisions in society and the promotion of national unity. Longstanding tensions in the country culminated in the 1994 state-orchestrated genocide that killed between 750,000 and one million citizens, including approximately three-quarters of the Tutsi population. Following the killing of the president in 1994, an extremist interim government directed the Hutu-dominated national army, militia groups and ordinary citizens to kill resident Tutsis and moderate Hutus. The genocide ended later in 1994 when the predominantly Tutsi Rwandan Patriotic Front, operating from Uganda and northern Rwanda, defeated the national army and Hutu militias and established a Rwandan Patriotic Front-led government of national unity that included members of eight political parties.
Since 1994 the government has called for national reconciliation and abolished the policies of the former government that created and deepened ethnic cleavages. The government removed all references to ethnicity in official discourse – with the exception of references to the genocide, which is officially termed “the genocide against the Tutsi” – and eliminated ethnic quotas for education, training and government employment.
Some individuals said the government’s reconciliation policies and programs failed to recognise Hutu victims of the genocide or crimes committed by the Rwandan Patriotic Front after the end of the genocide, whereas others noted the government focused positive attention on Hutus who risked their lives to save Tutsis or members of mixed families during the genocide.
ASSESSMENT OF CLAIMS AND FINDINGS
Country of reference
Whether a person has a particular nationality is a question of fact for the decision maker which, for the purpose of the definition of ‘receiving country’, must be determined solely by reference to the laws of the country.[4]
[4] See, for instance FER17 v MIBP [2018] FCCA 3767 (Judge Young, 20 December 2018).
The applicant claims his mother was a Rwandan citizen and that he was born into Congolese citizenship as he was born in the DRC. The applicant further claimed he became a national of Rwanda in 2003 and that he held a Rwandan passport issued in October 2010. A copy of his expired Rwandan passport is on file, as well as a Rwandan national identity card. On his passport, his place of birth is listed as a town in Rwanda. The applicant claimed it was his mother’s place of birth, not his own which was in [Town 1] in the North Kivu region of the DRC.
It was claimed that a DRC citizen loses that status if they voluntarily acquire another citizenship.[5] The Tribunal accepts the applicant’s explanations about acquiring Rwandan citizenship. It finds that, on acquiring Rwandan citizenship in 2003, the applicant’s DRC citizenship ceased according to the laws of that country (DRC).
[5] Open Society Foundations (OSF), Citizenship Law in Africa: A Comparative Study, October 2010, available at: 10 June 2021]. The Tribunal notes also that the DRC Constitution states that Congolese citizenship is exclusive, thereby ruling out the possibility of dual citizenship in DRC law.
Taking all the evidence as a whole, the Tribunal finds that he is a national of Rwanda, as claimed, and it assesses his protection claims against the Republic of Rwanda as the receiving country for the purposes of ss 36(2)(a) and 36(2)(aa).
Third country protection
Section 36(3) provides that Australia is taken not to have protection obligations in respect of an applicant who has a right to enter and reside in another country and has not taken all possible steps to avail themselves of that right. However, s 36(3) does not apply in relation to a country in respect of which the applicant has a well-founded fear of being persecuted for a relevant reason (in this case, one of the five nexus reasons in the Refugees Convention: s 36(4)(a) and s 36(5). (There are corresponding provisions relating to complementary protection.)
Rwanda is a member of the EAC, which includes South Sudan, Uganda, Kenya, Tanzania and Burundi. The EAC Treaty which came into force in July 2000 included an agreement to establish a protocol concerning free movement. Article 7(1) of the Protocol on the Establishment of the EAC Common Market (the Protocol) which came into force on 1 July 2010, guarantees that persons who are citizens of the other partner states have freedom of movement.[6] The Free Movement of Persons Regulations set out five categories of persons eligible to enter and remain temporarily in a partner state, including visitors and persons entering a partner state for any other lawful purpose, other than as a worker or self-employed person, for whom separate regulations apply. Visitors are generally provided with a pass for up to six months provided they are in possession of an appropriate identity document, which appears to include national passports or identity cards.[7]
[6] East African Community,
[7] East African Community Common Market (Free Movement of Persons) Regulations, Annexure 1 Regulation 4, East African Community Common Market Protocol (Simplified) at 7, see also Daily Nation (Kenya), 19 February 2014, You don’t need passport to travel all over East Africa, >
It is not in dispute that the applicant could live in any of the EAC member states, at least temporarily, for a period of up to six months. After all, he has travelled to [Country 2] and [Country 1] on a number of occasions in the past.
A potential question arises as to whether the applicant’s rights in other EAC member states amount to ‘the right to enter and reside’, ‘whether temporarily or permanently’, within the meaning of s 36(3). Justices Tracey and Griffith considered that EAC provisions permitting six months’ residence were a right to reside temporarily in those countries.[8] The Tribunal is satisfied that the applicant has a right to enter and reside in other EAC member states, within the meaning of s 36(3).
[8] SZRTC v MIBP (2014) 224 FCR 570 at [31].
The Tribunal accepts that the applicant was born in the DRC but has foregone citizenship of that country in favour of Rwanda on an exclusive basis. While there are proposals for the DRC to join the EAC to consolidate regional integration, it was not a member at the time of making this decision. The Tribunal is therefore satisfied that the applicant does not hold a right to enter and reside in the DRC, within the meaning of s 36(3).
The Tribunal notes that the delegate’s decision discusses the possibility of the applicant’s right to enter and reside in one of the 15 member states of ECOWAS, either temporarily or permanently. Neither the DRC nor Rwanda is a member of that economic union. For this reason, ECOWAS does not raise any optional question as to whether the applicant’s circumstances are applicable within the meaning of s 36(3).
Credibility findings
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 Pan 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.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he 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.
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.
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).
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.)
The Tribunal has carefully considered the applicant’s written claims for protection as well as the oral testimony provided by the applicant at the scheduled hearing.
Applicant’s accepted circumstances
Although the Tribunal has considerable credibility concerns pertaining to him being a person of interest to the authorities in Rwanda, it accepts the following personal aspects regarding the applicant’s circumstances:
·The applicant was born in the Democratic Republic of Congo in [Year] into a North Kivu family who were ethnically Tutsi and they spoke the Kinyarwanda language.
·The applicant was brought up in a blended family which included his biological parents, five biological siblings, his father’s other wife and two half-siblings.
·The applicant’s secondary education took place in the Congolese city of Goma in which studies were conducted in the French language; however, he did not complete secondary school due to regional turmoil.
·The applicant’s biological father and his biological mother have passed away.
·The applicant’s mother was a citizen of Rwanda and the applicant moved to Rwanda in 1996 where family members of his mother resided. He became a citizen of Rwanda in 2003.
·The applicant completed a diploma in [Subject 1] in Kigali and other studies in [Country 3] and he earned a living from 2010 in Rwanda as [an Occupation 2] and as a [performer] with [a stage name].
·The applicant worked in Rwanda as an [Occupation 1] for a charitable organisation he founded called [Organisation 1]. The organisation was set up with the assistance of a Perth-based college and was partially funded by fundraising projects in Australia.
·The applicant travelled to [Country 1] at least three times, he had been to [Country 2] and [Country 3]; and he visited the DRC in 2009.
·The applicant arrived in Australia on a business visitor visa [in] October 2013 and applied for a protection visa on 17 January 2014.
·Since arriving in Australia, he has largely resided in Western Australia.
·The applicant has never been engaged, married or in a de facto relationship and he has never had any dependants.
Is the applicant a refugee?
The applicant’s dispositive claims are that he is owed Australia’s protection obligations on the basis the Rwandan authorities targeted him to be forcibly recruited to support fighting in North Kivu through a Rwandan government-backed paramilitary outfit called M23. The applicant claimed that many Tutsi born in the DRC were targeted to participate in such fighting and that he personally came to the attention of the authorities in 2011 because he was born in North Kivu and because he was involved with the South Kivu communities and the North Kivu communities that had settled in Kigali.
As discussed in the hearing, the applicant’s dispositive claims invited some credibility concerns because he provided two implausible accounts of escaping from forcible recruitment and because he was unable to explain how he, as a person of interest, departed Rwanda without coming to the attention of the authorities.
The first incident occurred in or around July 2013, when, it was claimed, the applicant was identified and picked up by two policemen. The incident occurred in the evening while the applicant was riding his motorcycle. As the applicant did not have his identification documents on his person, he was detained at a police station. The applicant provided the explanation that men were arbitrarily detained while in transit so as not to involve family members in any disputes.
After an hour or so, the applicant and a number of men were then taken to another part of Kigali at a detention centre. The applicant claimed he was beaten several times over four or five days. After a while he was told he was fit enough to fight in Congo. Although the applicant protested, he was beaten again and then taken to the [army barracks] for training. However, the applicant fell ill with malaria and was required to convalesce in hospital for five days. The applicant then claimed he ran away from the hospital on the second day and sought refuge at the residence of his mother’s brother and then travelled to [Country 1].
It was around this time that the applicant applied for a visitor visa to Australia and arranged to provide evidence that he had a two-year contract with local businesspeople. Having received notification his Australian visitor visa had been granted, the applicant returned to Kigali from [Country 1] on 17 October 2013. One day later, the applicant was then detained a second time. This time he was lunching at a restaurant when a plainclothes policeman escorted him outside and then forced him at gunpoint into a four-wheel drive vehicle. The applicant was taken to the police station at [Location 1], where he was kept in a room with other people. When the applicant realised a relative of his was working as a policewoman at the same station, he spoke to her about his visa to Australia and she agreed to help him escape. At around two in the morning, she escorted the applicant to the toilet and told him to run. The applicant then escaped to a friend’s place in [Location 1] and later to his uncle’s residence and then at his studio until it was time to leave Rwanda.
[In] October 2013, the applicant travelled to the Kigali International Airport (formerly known as Kanombe International Airport) for his flight to Australia. According to the written claims the applicant, while he was frightened, he would be stopped, took the chance to depart. Three months after arriving in Australia, the applicant applied for a protection visa.
During the scheduled hearing, the Tribunal raised with the applicant a number of its credibility concerns about these claims.
Firstly, it questioned whether it was likely the applicant was released from detention and forcibly recruited at the [army barracks] and hospital, as it seemed implausible his flight was so easily achieved, given he was both so ill he required hospitalisation and the authorities were undertaking practices to conscript Rwandans against their will. As discussed, it did not seem plausible for the Rwandan authorities to conduct forced recruitment where escaping detention was achieved so straightforwardly or with little effort or planning.
Secondly, it questioned whether the applicant had a deep or urgent or genuine fear of the authorities given he had fled to [Country 1] for his safety and then returned to Rwanda when his visa had been granted. In no way was it necessary to return to Kigali and risk his safety given he claimed to fear being forcibly sent to a guerrilla war on behalf of the authorities’ proxy war in the DRC. In returning to Rwanda, the applicant further invited the Tribunal to question the credibility of the first incident of harm in which he was detained by the authorities and later escaped from hospital in July 2013 in the context of the far-fetched elements.

Thirdly, as discussed in the hearing, there were a number of far-fetched and implausible elements of the second abduction and escape from the authorities in October 2013. The Tribunal noted implausible elements, cumulatively considered, including that the applicant was discovered within only one day of returning to Rwanda; that a relative was working at the police station as a policewoman; and that that relative conspired to help the applicant escape in the middle of the night.
Fourthly, the Tribunal questioned whether it was credible in the sense of his not being intercepted by the authorities at the point of departure from an international airport given he had escaped from the authorities on two occasions. The Tribunal notes that the applicant claimed that the authorities were interested in war criminals evading justice, not minor criminals. The Tribunal questioned whether evading their custody would be considered minor or trivial.
The credibility of the applicant’s dispositive claims based on past harm incidents is central in this matter.

100. Taken in combination these abovementioned credibility concerns strongly invite the Tribunal to consider the applicant’s overall claims about past harm and subsequent evasion from the authorities to lack plausibility and persuasiveness. They were particularly undermined by the applicant returning to Rwanda from [Country 1] after the grant of his visa in October 2013. While the applicant’s written and oral claims were consistently posited, it was also noted that the applicant provided no evidence to corroborate or substantiate his critical claims for protection. The Tribunal’s credibility concerns are so deep that it cannot provide the applicant the benefit of the Tribunal’s doubt. Accordingly, the Tribunal makes the following adverse credibility findings, cumulatively considered, about the applicant’s written and oral claims:
101. The Tribunal does not accept the applicant became the subject of adverse attention by the police or the military or anyone else in authority in Rwanda because he was formerly a national of the DRC or was a Congolese Tutsi or a Tutsi from North Kivu. It does not accept he was apprehended by the police on a road while in transit, then detained at a police station and then removed to a detention centre and an army barracks for the reasons claimed. It does not accept the applicant fell ill, with malaria or any other ailment, sufficiently recovered, and then was taken to a hospital or sickbay by the authorities from which he later escape, as claimed.
102. It does not accept the applicant departed Rwanda for [Country 1] to evade the authorities as the applicant was not a person of interest for forcible recruitment into M23 for a proxy war in the DRC by the authorities or for any other purpose.
103. Had the applicant any genuine, deep or urgent fear of the authorities as a candidate for forced conscription into a proxy war, whereby the applicant’s life and safety would be seriously at risk, it would be reasonable to expect the applicant to have avoided return to Kigali. However, the applicant did return. In the context of the Tribunal’s overall credibility concerns, it does not accept the applicant returned to Rwanda holding any trepidation towards the authorities further harming him.
104. Neither does it accept the applicant was subsequently apprehended and arbitrarily detained soon after he returned to Rwanda in October 2013, for the reasons claimed. The Tribunal finds that the applicant’s account of escaping from a Kigali police station with the assistance of a relative to be far-fetched and lacking in credibility. It does not accept he then hid in one or more locations to evade the authorities or that the applicant held some fears about departing Rwanda from its international airport in Kanombe or that he assumed the officials at the airport would not be interested in persons who had twice evaded detention.
105. For completeness, it also does not accept the applicant will be a person of interest or face a real chance of serious harm as a failed asylum seeker on return, either on arrival or in the community, based on these fabricated claims for protection related to his ethnicity and former nationality.
106. Based on the applicant’s dispositive claims lacking overall credibility, the Tribunal does not accept the applicant held any genuine, urgent or deep fears of persecution for the reasons claimed at the time he departed Rwanda, at the time he lodged a protection visa application or at the time of the scheduled hearing. Neither does the Tribunal accept the applicant holds any subjective fears of persecution based on his ethnicity or former nationality or a combination of these reasons or any other related Convention reasons based on these dispositive claims advanced in the applicant’s written and oral evidence into the foreseeable future. This is because it is the Tribunal’s assessment that these dispositive claims about past harm incidents were fabricated for migration purposes and not because he is owed Australia’s protection obligations.
107. Based on the Tribunal’s credibility concerns, cumulatively considered, the Tribunal finds the applicant’s claims about being subjected to incidents of arbitrary detention and subsequent evasion of the authorities for the purposes of forcibly recruiting the applicant to be a soldier and forcibly conscripted against his will in a proxy war, to be fabricated and contrived. The Tribunal finds that the applicant does not face a real chance of serious harm for a Convention reason, including based on his ethnicity and former nationality if he returned to Rwanda. Neither does the Tribunal accept that the applicant has a well-founded fear of persecution based on these fabricated incidents of past harm or that he will be a person of interest on return to Rwanda into the reasonably foreseeable future.
108. As the country information in the decision record indicated, there were credible reports that the M23 rebel group relied, at least in part, on forced recruitment. However, as discussed in the hearing, the M23 paramilitary group ended its insurgency in late 2013 – around the time of the applicant’s arrival in Australia. There is no evidence that the paramilitary group based on Congolese ex-patriots in Rwanda or Rwandan citizens from North Kivu or from a Tutsi background have been subject to any forced recruitment for some considerable time. The Tribunal acknowledges the applicant’s argument that such activities are continuing to operate clandestinely. However, the M23 insurgency in the DRC followed the creation of a United Nations’ intervention brigade with an offensive mandate – a first for that institution – tasked with combating the myriad of militias in the DRC. There is no country information, including provided by the applicant, that the defunct M23 has reformed or that the Rwandan authorities have continued forcible recruitment of Rwandans of any ethnic or national background for the M23 or created a new outfit, either openly or clandestinely, for the same or similar military or strategic purposes. At no stage did the applicant ever provide any country information to corroborate or support his claims of imminent conscription if returned to Rwanda in the foreseeable future. Speaking objectively, the Tribunal finds that the applicant has only a remote and far-fetched chance of being seriously harmed through forced conscription based on the applicant’s race and former nationality as a Tutsi from North Kivu, as a Congolese Tutsi, as a former citizen of the DRC or for a combination of these reasons or any related Convention reasons, if returned to Rwanda into the reasonably foreseeable future.
109. Nonetheless, the Tribunal accepts there are some salient and innate aspects about the applicant’s ethnicity and background and based on the recent history of Rwanda that should be seriously considered against the Refugees Convention criterion.

Ethnic Hutus make up about 85 per cent of the Rwandan population with about 14 per cent being Tutsis. The early 1990s witnessed a horrendous genocide in which radicalised Hutus killed 900,000 Rwandans, mainly of Tutsi ethnicity. At the end of the genocide, the Tutsi-led Rwandan Patriotic Front won an election and have since maintained power. The government has worked to reduce ethnic identification in favour of just being ‘Rwandan’. In the context of a lack of ethnic turmoil since the 1990s genocide, it is the Tribunal’s assessment that this post-genocidal policy has been relatively effective in maintaining peaceful relationships between the Hutu majority and the Tutsis and other ethnic minorities. While ethnicity remains socially relevant within Rwanda, the Tribunal is unable to identify any notable significant discrimination in public or economic life against Rwandans of Tutsi ethnicity or Congolese of Tutsi ethnicity who are now Rwandan citizens. The country information suggests that these people are well-integrated into Rwandan society, but the Tribunal accepts that it may be easy to identify such persons. With regard to the applicant’s personal circumstances, the Tribunal notes the applicant’s passport indicates he was born in Rwanda. His mother was born in Rwanda and was a Rwandan citizen. He also has several relatives from his mother’s side who are Rwandan citizens. It is possible, because the applicant was born in North Kivu and was partially raised and educated there, that he speaks Kinyarwanda with an accent that reveals his area of origin as being outside Rwanda. According to the applicant’s own testimony, the applicant is well-known among the South and North Kivu communities in Kigali. The applicant’s evidence strongly indicates that he will have the family and social networks to support him on his return. Furthermore, the applicant is an able-bodied person who speaks multiple relevant languages to the Rwandan community with skills relevant to that country’s developing economic and social needs. While the Tribunal accepts the applicant may encounter a real chance of societal discrimination from Hutus in employment and other fields of civilian life, the Tribunal does not accept the levels of discrimination to be encountered by Tutsi in Rwanda amount to serious harm whereby the applicant will face severe economic hardship, the denial of access to basic services or the denial of capacity to earn a livelihood of any kind where the denial threatens the applicant’s capacity to subsist or any other serious harm non-exhaustively listed in s 92R(2) or any other serious harm required by s 92R(1)(b), should he return.

111. For completion, the Tribunal accepts there is a risk of ethnic tension within Rwanda leading to violence, given its recent history. This was not a specific claim advanced by the applicant. Since the 1990s, no serious incidents of ethnic violence have occurred between the Hutu and Tutsi populations. As mentioned above, the government has also been somewhat successful in promoting a ‘Rwandan’ national identity over longstanding ethnic identities and tensions for a relatively long period of time. It is the Tribunal’s assessment that ethnic strife will not return to the extent the applicant faces a real chance of being seriously harmed, including being killed or maimed, as a Tutsi by Hutus, should the applicant be returned to Rwanda into the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant has a chance of serious harm arising from ethnic strife based on his ethnicity and former nationality, but the chances are remote and far-fetched and not equal to or more than a real chance, if returned to his country of reference.
112. Noting that ‘serious harm’ under the Convention is similar but not the same as ‘significant harm’ defined under s 36(2A) of the Act, the Tribunal finds that while the applicant faces a real risk of harm in the form of societal discrimination as an ethnic Tutsi or a Tutsi from North Kivu or a Congolese Tutsi or his former DRC nationality or a combination of these reasons, there are no substantial grounds for the Tribunal to accept the applicant, as a necessary and foreseeable consequence of being removed from Australia to Rwanda, will face a real risk of such harm that amounts to significant harm, including cruel and inhuman treatment or punishment or degrading treatment or punishment, arising from discrimination towards his ethnicity or former nationality or a combination of both reasons.
Is the applicant owed complementary protection?
113. Having determined that the applicant does not satisfy the refugee provisions arising from his ethnicity, the Tribunal has considered the Act’s alternative complementary protection provisions.
114. In making this assessment, the Tribunal notes the abovementioned adverse credibility findings, cumulatively considered, regarding the past harm incidents to forcibly recruit the applicant into a paramilitary outfit to fight in the DRC, and the available country information. As the applicant is not credible as a person of interest to anyone in authority in Rwanda based on his fabricated claims and that the available country information about the defunct M23 outfight does not support the applicant’s critical claims for protection, there are no substantial or credible reasons to accept that the applicant, as a necessary and foreseeable consequence of being removed from Australia to Rwanda, will face a real risk of significant harm based on these claims.
115. As the ‘real chance’ standard for the Convention is the same as the ‘real risk’ test under the complementary protection provisions, given the Tribunal has already made findings that the applicant, who is ethnically Tutsi, faces only a remote and far-fetched chance of serious harm arising from any prospective tension or strife between Hutus and Tutsi, if returned to Rwanda, then it follows that the applicant only has a remote and far-fetched risk – and not a real risk – of significant harm, if returned to Rwanda, based on assessment of the country information, and does not satisfy s 36(2)(aa) in this regard.
116. Taking all these specific findings into account, the Tribunal accordingly finds the applicant does not satisfy s 36(2)(aa).
Cumulative findings
117. At no stage did the applicant claim he held any well-founded fears arising from his religion, his political opinion, his nationality or based on any membership of a particular social group such as his ethnicity as a Tutsi, a Congolese Tutsi, a Tutsi from North Kivu or his former DRC nationality or for any other reasons relating either to the Refugees Convention or the Act’s complementary protection provisions. This includes making claims about being a failed asylum seeker or based on his economic or health circumstances.
118. As held by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61, the Tribunal observes that a decision-maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts. The Full Federal Court held, at [76]:
In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction.

119. The Tribunal also notes that the applicant claimed that he had been disadvantaged in this review as he did not have full access to an audio file of the Departmental interview in its entirety. The date of that interview was 5 June 2014. Given this review is a de novo review, the Tribunal is satisfied the applicant has had ample opportunity to outline his claims before it and it places no relevance on the applicant’s partial access to the Departmental interview to the findings made in this matter.
120. Having assessed the applicant’s written and oral claims, both individually and cumulatively, the Tribunal finds that he does not face a real chance of serious harm, now and into the reasonably foreseeable future, for any reason. The applicant’s fears of persecution are not well-founded for any Convention reasons if he is returned to the Republic of Rwanda.
121. Accordingly, the applicant does not satisfy the criterion in s 36(2)(a).
122. Based on the same findings about the applicant’s written and oral claims and based on its complementary protection findings above, individually and cumulatively considered, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Rwanda there is a real risk of significant harm, including the applicant will suffer harm by way of being arbitrarily deprived of his life; the death penalty will be carried out on him; he will be subjected to torture; he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment, pursuant to s 36(2)(aa) of the Act.
123. Having considered that the applicant does not satisfy s 36(2)(a) or 36(2)(aa), the Tribunal is not required to consider whether the applicant has a right to enter and reside in a third country as required by s 36(3) of the Act.
Conclusion
124. 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).

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).
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 any of the criteria in s 36(2).
DECISION

127. The Tribunal affirms the decision not to grant the applicant a protection visa.
Brendan Darcy
Member

[2021] AATA 5073

17 November 2021

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