1832693 (Refugee)

[2019] AATA 3742

1832693 (Refugee) [2019] AATA 3742 (25 February 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1832693

COUNTRY OF REFERENCE:                  Rwanda

MEMBER:Ann Duffield

DATE:25 February 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 25 February 2019 at 12:41pm

CATCHWORDS

REFUGEE – protection visa – Rwanda – imputed anti-government political opinion – social group – journalist – sensitive and political articles – claims of threats and detention – visa over stayer – failed asylum seeker – not a credible witness  – returnee to Rwanda – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K0LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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 on 5 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.     The applicant who claims to be a citizen of Rwanda applied for the visa on 19 April 2018. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia had protection obligations.

CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4.     Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6.     Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

7.     If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

8.     In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

BACKGROUND

9.     The applicant is a citizen of Rwanda, born on [date]. The delegate made a finding that the applicant is who he claims to be and there is no dispute regarding his identity. There is some question as to whether his birth date is [date] but the Tribunal is satisfied that this does not call into question any identity issues. At the hearing the applicant confirmed that he is a citizen of Rwanda who travelled lawfully on a valid visa and passport. He told the Tribunal that he is not a citizen of any other country and that he feared return to Rwanda.

10.   The applicant’s passport is validly issued [in] 2017 and expires [in] 2022.

11.   The applicant arrived in Australia [in] April 2018 on a validly issued subclass 408 visa and claimed asylum at the airport.  The applicant lodged his application for a protection visa on 19 April 2018.

12.   The applicant claims to have a wife, born on [date]. He states they were married [in] March 2018 prior to his departure for Australia. He has two daughters born on [date] and [date]. He claims to be a Hutu of Christian religion.

13.   The applicant claims he is a journalist who travelled to Australia to cover Rwandan [Event 1 for Workplace 1].

14.   After a period of time in a UNHCR refugee camp, the applicant has been living in Kigali City, Rwanda since 1996.

REFUGEE CLAIMS

15.   The applicant claims that he is a journalist covering sensitive political and other stories and the government is looking for him as a result. He claims to have been harassed, threatened and detained unlawfully as a result of his stories. He claims to be living in constant fear and is also fearful for the safety of his family who have had to relocate to Burrundi.

16.   The applicant claims to have written an article about [Group 1 leader] and as a result received a convocation (a summons to appear in court) [in] October 2017. He was kept in a police cell for [number] days and then taken to court. He claims that he has not been formally charged with anything but understands that a further court date had been set for May 2018. He does not know what happened as a result of failing to appear in court.

17.   The applicant claims that he fears that the Rwandan authorities will kidnap and harm his wife and children and they went to Burundi for safety in around December 2017. He claims it is not possible for him to travel to Burrundi and did not go to Uganda because it would look suspicious.

18.   In December 2017 the Rwanda [organisation] arrested his boss and suspended him for [number] months.

19.   The applicant claims he stopped writing for [Workplace 1] in December 2017 and [Workplace 2] in February 2018. His wife and children returned from Burrundi in March and stayed with him for a month. It was during this time that they got married.

20.   The applicant claims he was concerned the authorities would not let him leave the country and so he organised for a cousin who works [in Occupation 1] to help him through immigration.

21.   The applicant claims that he has been charged falsely and been accused of working with [Group 1]. He claims that if he is returned he will be detained, tortured and forced to confess to further false charges. The applicant claims that there is no freedom in Rwanda to be a journalist, and that he is being targeted and threatened because he is a journalist.

22.   The applicant claims he has a well-founded fear of persecution for holding or being imputed to hold anti-government political opinions and for being a member of the following particular social groups:

a.a journalist;

b.a journalist that reports on politically sensitive issues;

c.his relatively low profile as a journalist in Rwanda; and

d.being a visa over stayer and failed asylum seeker.

CLAIMS AND EVIDENCE

23.   In considering the applicant’s claims, the Tribunal has taken into account material provided by the applicant to the delegate, the Department and the Tribunal along with publicly sourced material including the following:

a.emails in relation to the applicant’s application for a scholarship [date];

b.letter of support from [Mr A], the applicant’s publisher, dated [October] 2018;

c.copy of the convocation received by the applicant dated [October] 2017;

d.various letters of support; and

e.emails and information sent to the applicant in relation to [Event 1 accreditation] and visa application and grant processes.

CREDIBILITY

Credibility

24.   The applicant’s evidence at the hearing was evasive, incomplete, lacking in relevant detail and frequently implausible. The Tribunal understands that people are nervous at a hearing and the use of interpreters is sometimes imperfect. However the Tribunal understands that the applicant has a basic grasp of the English language and was in any case satisfied that the applicant was given a fair hearing and extended every opportunity to put his evidence, clarify and restate remarks and otherwise respond to the Tribunal’s particularised concerns.

25.   The applicant was also given an opportunity to provide further documents and submissions after the hearing, which he has done through a capable representative and which has been included, where relevant, in the findings and reasons above.

26.   The Tribunal’s task of fact-finding frequently involves an assessment of an applicant's credibility, particularly where documentary or other corroborating evidence is lacking. In this context, 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.

27.   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.

28. The Tribunal is also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:

… the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

29.   Bearing these matters in mind, the Tribunal finds that the applicant is not a credible witness and his accounts of persecution and fear of harm are not well founded for the following reasons.

Political opinion and membership of a particular social group

30.   The applicant claims that he faces persecution because of an imputed anti-government opinion and that he is a member of a particular social group being a particular type of journalist.

31.   The Tribunal accepts that human rights abuses continue in Rwanda and can be motivated against people perceived as anti-government, including journalists, particularly those who write articles of support for [Group 1].

32.   The applicant’s evidence to the Tribunal in this regard lacked credibility and the Tribunal does not accept the applicant’s claims that he would be persecuted for an imputed anti-government political opinion as a result of his work as  or for any other reason.

33.   The applicant told the Tribunal that for the most part of the previous several years he worked as a [journalist] for [Workplace 2]. He told the Tribunal that he had an interest in [Topic 1] and had applied to cover [Event 2 in a country] in 2014. He claims he was chosen to go and cover [but] was unable to because he could not afford the flights and accommodation. He also claims that he applied to go to [another country] in 2016 to cover [Event 2] but was also unable to attend because of costs. He told the Tribunal that the government was not involved in the selection process or the issuance of visas.

34.   The Tribunal questioned the applicant about his knowledge of the Rwandan [Event 1] and found him extremely knowledgeable. The Tribunal accepts that the applicant has an interest in [Topic 1] and that this is reflected by his employment as a [Topic 1] journalist.

35.   The Tribunal questioned the applicant about the reasons why he was detained and the favourable article he allegedly wrote in relation to [Group 1 leader]. His account in this regard lacked relevant detail and was unpersuasive. For example, he claims that he was questioned for four (4) days of his sixteen (16) day alleged detention but was unable to provide a particularly detailed or unrehearsed answer about what occurred during that time, the questions he was asked and the charges that he alleges were made against him, claiming merely that the questioners alleged that he “went against national security” because of his publications and writing. He does not know the particulars of the charge against him, nor has he appeared before a court. The Tribunal does not find it likely that the applicant was charged or that there are any charges outstanding against him for the reasons claimed or for any reason.

36.   The Tribunal notes that the applicant claims to have been abducted in October 2017 for a few hours and assaulted by government officials as a result of a story he had been investigating about [a topic]. The account, in the tribunal’s mind lacks relevant detail and plausibility and is in any case unsupported by any additional evidence. Given the Tribunal’s general concerns about the applicant’s credibility, it gives this account little weight in the applicant’s favour.

37.   The Tribunal put to the applicant the delegate’s view in relation to this matter, in particular that he was unable to produce those writings as evidence. The Tribunal asked the applicant if he had been able to obtain copies of those articles since he arrived in Australia and he claimed that he could not and that they had been published in other names.

38.   The Tribunal put to the applicant that it found it difficult to accept that he had been able to request and obtain a letter of support from his publisher but was unable to ask that same publisher for copies of his articles. The applicant told the Tribunal that his publisher was reluctant to get involved and draw attention to himself. The applicant claims that his publisher put his name to those articles because that was the practice.

39.   The Tribunal put to the applicant that it found his publisher’s letter of support not particularly strong evidence corroborating his claims. For example, the Tribunal notes that the publisher did not admit to being the author of those articles nor did he disclose that he had been arrested and his publication closed down.  The Tribunal put to the applicant that his publisher’s letter stated that journalists generally were persecuted when doing their jobs and some are arrested whilst others flee. The letter continues to state that the applicant was arrested because of information he covered that was published between [August] 2017 and [September] 2017 but did not state what that “information” was.

40.   The Tribunal put to the applicant that it found it strange that he was arrested and detained for an article attributed to his publisher whilst his publisher was not. The applicant said that his publisher had been arrested and detained. The Tribunal notes that the applicant claimed in his original submission that his publisher was arrested in December and his publication suspended for three months. The Tribunal reminded the applicant that his publisher was nonetheless not imprisoned and that his newspaper was still publishing and operating a website at the time of the hearing. The Tribunal put to the applicant that this suggested that he had nothing to fear if he returned to Rwanda particularly as his name was not on any of the sensitive articles. The applicant strongly denied this.

41.   The applicant repeated an explanation he has put to the Tribunal and the delegate in that the authorities discovered that he was the author of the articles because they were told by his publisher. The Tribunal does not accept this explanation. It seems unlikely that the publisher would attribute articles written by others to himself in an effort to allegedly protect them and then disclose who they were when questioned. 

42.   The applicant also told the Tribunal that the authorities accessed his phone whilst he was detained and found a number of texts and phone numbers between named individuals who were also dissidents of some kind and journalists. The Tribunal asked the applicant how they could access his phone and he said that he told them the password.

43.   The Tribunal accepts that some journalists have been subject to the adverse attention of the authorities by reason of their political journalism; they have been arrested, detained and prosecuted. However the Tribunal does not accept that the applicant has a profile such that he would come to the attention of the authorities for any reason, least of all for his claimed political writing. The Tribunal does not accept that the applicant has written [articles]. The Tribunal does accept that the applicant may have been [reporter] in the past and this is borne out by his interest in [Topic 1], particularly in relation to his applications to cover previous [Event 2’s].

44.   The applicant then went on to tell the Tribunal that he stopped working for the [Workplace 2] in around February 2018 because he was fired. He claims that he was fired because of his pending case with the courts. He said that his boss decided that it was too risky for the organisation for him to continue working for them.

45.   The applicant gave the Tribunal a vague account of his detention during October and November 2017 he claims was the result of an article he had written for [Workplace 1] about [Group 1 leader]. He claims the article was critical of the government. A copy of a convocation dated [October] 2017 does not indicate the reason for his summons but invites him to appear in Court [in] October. The applicant claims he was detained from that time in a police cell and then taken to court some sixteen (16) days later. He claims that he has not been formally charged with anything but claims that there is was a date set for May 2018 for him to appear. He has provided no additional evidence of the latter claim.

46.   The Tribunal does not accept that the applicant was detained for (16) days or for any length of time and charged with a crime. It seems to the Tribunal that if the applicant had written the political article about [Group 1] that he claims to have, then his punishment would have been more immediate and severe and, logically, he would be quite certain of what law he had broken at the time of his alleged detention.

47.   The Tribunal does not accept that the applicant wrote an anti-government story for [Workplace 1] or that he was of interest for them for any reason. It seems to the Tribunal that the government is not afraid to declare publicly that it has detained persons, particularly journalists, for antigovernment activities. The Tribunal asked the applicant if his publisher had taken up his cause publicly and he said that he had not. The applicant said that it would be dangerous for them both if he published an article about his defection to Australia and his claims for asylum.

48.   In the Tribunal’s mind, if the publication was such that it would come to the adverse attention of the government, it would do so because it was publishing articles which demonstrated that dissidents, especially dissident journalists, would be punished severely. In the Tribunal’s mind, that the publication is still publishing and its editor unmolested for allegedly writing the articles that the applicant claims are the source of his well-founded fear of persecution, the Tribunal is not persuaded that the applicant’s account is either plausible or truthful.

49.   Indeed, even the letter from the applicant’s publisher does not support his claim that he has written particular political articles that have been attributed to the publisher. Equally, the fact that [Workplace 1] continues to publish and have an online presence is at significant odds with the applicant’s claim that [Workplace 1] is opposed to the Government. In the Tribunal’s mind, if this was the case and the government as opposed to political opposition as the applicant claims, [Workplace 1] would have been shut down and its publisher charged and convicted with a crime and imprisoned or, at least, forced to flee.

50.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reason of his actual, or imputed political opinion or for his membership of a particular social group of , or of journalists that report on politically sensitive issues or of his relatively low profile as  in Rwanda.

Well-founded fear of persecution

51.   The applicant said that at the time of applying for accreditation to cover [Event 1] in [an Australian City] in 2018, he was working for [Workplace 1] at the time.

52.   The Tribunal put to the applicant that during his claimed period of detention between October 25 and 10 November 2017 he apparently was able to lodge his visa application for [Event 1] on 6 November 2017 (it was granted on 16 November 2017). The applicant was unable to explain why this was the case except to suggest that his agent lodged it on his behalf at that time.

53.   In reply to the Tribunal’s questions about this matter, the applicant claimed that he was unaware that he could travel to Australia at the time the visa was granted. He said that he was advised by the person who helped him apply for the visa to wait until closer to the commencement of [Event 1]. In a written response to the Tribunal, the applicant provided a number of documents from [Event 1] authority including a copy of [accreditation documents].

54.   The applicant acknowledges that he was advised of his visa grant in around 22 December 2017. There is nothing in any of that documentation that indicates that the applicant could not travel prior to a particular date despite the applicant’s claims.

55.   The applicant insists that he was given to understand that he could not arrive until mid-March 2018. This is despite the fact that he had a valid visa and received his [accreditation documents] in February 2018.

56.   Even if this is true, and the Tribunal is not persuaded that it is, it seems to the Tribunal that if the applicant indeed had a well-founded fear of persecution he would have, at the very least, tested the proposition that he could go once he had in his possession a valid visa to travel to Australia from 11 December 2017. That he did not do so, but waited until the beginning of April 2018 to travel, strongly suggests to the Tribunal that he had no fear of persecution, well-founded or otherwise.

57.   The applicant also told the tribunal that he had to wait before departing Rwanda because he had to save some money, however the applicant told the Tribunal that he had been sacked from [Workplace 2] in January 2018 and had not returned to [Workplace 1] after his detention. The applicant also claimed that he had to make sure that his wife and children were safely relocated to Burrundi. However, he told the Tribunal that they travelled to Burrundi in December. Be that as it may, the applicant also told the Tribunal that his partner and their children returned to Rwanda in March 2018 for their wedding. The Tribunal put to the applicant that his fear of persecution could not have been so well founded if he found time to organise a wedding. The applicant claimed that he felt that getting married would further protect his family. The Tribunal put to him that it considered the converse to be the case, that indeed with his name, they would be more easily identified and located by the persecuting authorities. The applicant said that was why he sent them to Burrundi.

58.   The applicant also submits that he did not leave early because he was concerned that it would bring him to the attention of the authorities. However, he did not provide this explanation when it was raised at the hearing and indeed, since he claimed to not have even considered the possibility of leaving early it seems extremely unlikely the fear of alerting the authorities would have arisen.

59.   The Tribunal asked the applicant why he couldn’t travel to Burrundi to live with his wife and children and he said that as a Rwandan citizen he was not allowed to. He provided no evidence to support this claim and the Tribunal therefore considers it not impossible for the applicant to live safely in Burrundi with his wife and child if he genuinely fears persecution in Rwanda.

60.   The Tribunal does not accept that someone in genuine fear of their life would wait four (4) months before departing the country from which they fear persecution.

61.   The applicant told the Tribunal that the only way he was able to depart the country on his passport was to bribe officials at the airport. He said that he paid his cousin, who worked [in Occupation 1], a large sum of money to ensure that he and his friend would be able to depart without being shopped. When asked why he thought he wold be prevented from leaving, and what his cousin would be able to do to ensure that he could leave, the applicant was unable to explain anything other than stating that his cousin was in “[details deleted]” and could ensure his departure.

62.   The applicant’s advisers accepted that it was not necessary for the applicant to bribe officials to exit the country, but submitted that the applicant’s actions in this regard proved that his fear of persecution was well founded in that he felt that he had to bribe officials so that he could leave.

63.   The Tribunal does not accept this explanation. The Tribunal does not accept that the applicant bribed anybody to obtain clearance to depart Rwanda or that he was of interest to the authorities such that they would prevent his departure. It seems to the Tribunal that if the applicant did have a genuine fear of being detained upon his departure he would have sought to obtain a guarantee or at least a sound explanation from his cousin about what measures had been taken on his behalf. At the very least, such information would ensure the applicant would provide consistent information if asked, for example. He did not do so. The Tribunal finds that the applicant concocted this account in order to support his protection claims.

64.   The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the reasons claimed or for any other reason.

Membership of a particular social group

65.   The applicant claims that his imputed support of an [Group 1] makes him a subject to persecution. He claims that as a failed asylum seeker he would be subject to persecution. The applicant claims [Official 1] indicated, [that] any members of [Event 1] who remained in Australia committed an act of treason. He further claims to be a person with a public profile, making him easily identifiable by his persecutors.

66.   The Tribunal discussed [evidence] with the applicant at hearing and put to him that [Official 1] did not extend this warning to journalists, rather directed his comments to [another group]. The Tribunal put to the applicant that it had not seen his name mentioned in any of the articles published about the Rwandan [group] applying to remain in Australia. The Tribunal put to the applicant that it did not appear that he would suffer persecution as an asylum seeker from  

67.   The applicant claims that he would be considered to have committed treason for overstaying and will be persecuted for that reason. The Tribunal has considered this carefully and finds that there is no reason why the Rwandan authorities would be aware or informed that the applicant had applied for asylum, or indeed that he had overstayed unlawfully or been held in detention. The applicant has not been active in his anti-government comments in Australia either directly or through social media and as the Tribunal has found that he is of no interest to the authorities in Rwanda, the Tribunal is not satisfied that the applicant would be of interest to the authorities in Rwanda such that he would suffer any harm if he returns to Rwanda.

Convocation

68.   This document may or may not be genuine. It is numbered “01” which seems unlikely that it is the first summons issued in Rwanda at that time. The Convocation states that the applicant is required under article 46 of the law to present himself to the police station. It is dated [October] 2017. The document does not state the purpose of the presentation or what law the applicant has breached. Without any supporting evidence it may well be for a parking ticket, for example.

Letter from [Mr A] dated [October] 2018

69.   The applicant has provided a letter allegedly from his former employer who states that the applicant covered political and legal issues since 2015.  [Mr A] confirms that the applicant did not publish under his own name for safety reasons. He also states that “an investigation conducted by Rwanda Police discovered the identities of journalists writing for the newspaper including the applicant who was arrested because of the issues he covered.”

Letter from [a person]

70.   The applicant also provided this letter which is from a fellow [journalist] with whom he worked from 2010 to 2012. Apart from general observations about the limits on journalistic freedom in Rwanda the writer of the letter provides not insights into the particular difficulties, if any, that the applicant faces.

Letter from [MR B]

71.   [Mr B] was a colleague between 2010 and 2012. [Mr B] does not provide any evidence that the applicant was of interest to the police or that he was anything other than a [writer].

72.   The Tribunal gives no probative weight to any of these letters. The Tribunal accepts that the writers are motivated to assist the applicant in his claims to remain in Australia, but none of the writers were witness to, nor can they attest to, the alleged persecution that the applicant faces or would face if he returns.

73.   The Tribunal has also considered the cumulative impact of the applicant’s claims such that the combination of his actual or imputed political opinion, membership of a particular social group of various kinds of journalists and/or failed asylum seekers, method of departure and any integers of those indicators would amount to a well-founded fear of persecution or bring the applicant to the attention of the authorities such that his return to Rwanda would result in him suffering significant harm, and is not satisfied that there is a real risk that the applicant will suffer significant harm.

COMPLEMENTARY PROTECTION

74.   The applicant claims 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 real risk that the applicant will suffer significant harm.

75.   The Tribunal has carefully considered the applicant’s claims cumulatively and individually and has formed a view that the applicant is not a person to whom Australia has protection obligations. The Tribunal is not satisfied that the applicant would be at risk of serious harm for the reasons he claims or for any other reason if he returns to Rwanda.

76. The Tribunal is not satisfied that the applicant is a refugee as defined by s5H(1) of the Migration Act.

77.   The Tribunal has considered if the applicant meets the complementary protection criteria under s36(2)(aa) of the Act and, having carefully considered and weighed the evidence, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Rwanda, there is a real risk that the applicant will suffer significant harm.

78.   For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations of any kind. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

CONCLUSION

79.   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 s.36(2)(a).

80.   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

81.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Ann Duffield
Senior Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:

(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)that is not inconsistent with Article 7 of the Covenant; or

(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)that is not inconsistent with Article 7 of the Covenant; or

(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)for the purpose of obtaining from the person or from a third person information or a confession; or

(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)for the purpose of intimidating or coercing the person or a third person; or

(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…
receiving country,  in relation to a non-citizen, means:

(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5J Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)   the real chance of persecution relates to all areas of a receiving country.

   Note: For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note: For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)   conceal an innate or immutable characteristic of the person; or

   (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)   the persecution must involve serious harm to the person; and

   (c)   the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)   a threat to the person’s life or liberty;

   (b)   significant physical harassment of the person;

   (c)   significant physical ill‑treatment of the person;

   (d)   significant economic hardship that threatens the person’s capacity to subsist;

   (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

1. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K  Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)   disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L  Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)   a characteristic is shared by each member of the group; and

(b)   the person shares, or is perceived as sharing, the characteristic; and

(c)   any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)   the characteristic is not a fear of persecution.

5LA  Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)   protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)   the person can access the protection; and

   (b)   the protection is durable; and

   (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36Protection visas – criteria provided for by this Act

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(2A)A non‑citizen will suffer significant harm if:

(a)   the non‑citizen will be arbitrarily deprived of his or her life; or

(b)   the death penalty will be carried out on the non‑citizen; or

(c)   the non‑citizen will be subjected to torture; or

(d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)   the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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