1936465 (Refugee)

1936465 (Refugee) [2022] AATA 5034 (26 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs on 23 December 2019 to refuse to grant the applicants a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANTS’ REPRESENTATIVE:        Madhukar Naiker, solicitor and migration agent (MARN: 0601856)
CASE NUMBER:  1936465
COUNTRY OF REFERENCE:                   Rwanda
MEMBER:Kate Chapple
DATE:26 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the main applicant satisfies s 36(2)(a) of the Act and the secondary applicants satisfy s 36(2)(b) of the Act.

Statement made on 26 October 2022 at 12:40pm
CATCHWORDS
REFUGEE – protection visa – Rwanda – political opinion imputed – well-founded fear of persecution by the Rwandan police – threats and intimidation by the government and their supporters – summoned by police who falsely accused him of crimes against the government of Rwanda – knowledge of and connections with the RNC – ethnicity – Hutu – particular social group – being a Rwandan citizen returning to Rwanda from abroad – no effective protection measures available to the main applicant in Rwanda
– decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
OVERVIEW

The main applicant, [age], and his wife, [age], grew up in Rwanda, met there more than 20 years ago and later married. They have two children, a daughter, [age], and a son,[age]. The main applicant and his wife both completed bachelor degrees in Rwanda, they bought a house in [Village], Muhanga District, Rwanda and were working for the Rwandan government in their respective fields. The main applicant had also volunteered for the [named deleted]Association in Rwanda for many years.
After being awarded an Australian post-graduate scholarship, the main applicant’s wife travelled to Australia in May 2015, and the main applicant and their daughter followed in December the same year. The main applicant has worked in farming and meat processing jobs while in Australia. The family were scheduled to return to Rwanda in December 2017 after the main applicant’s wife completed her post-graduate program.
The main applicant travelled to Rwanda in early July 2017 to sell a property for his wife. The Rwandan presidential election was coming up in early August. During his stay, he claims he was targeted and harmed by police who accused him of opposing the Rwandan government. Fearing what else may happen to him, the main applicant returned to Australia as soon as he could arrange his departure.
Around a month after returning to Australia, in September 2017, the main applicant applied for a protection visa, with his wife and children as secondary applicants. He does not want to return to Rwanda as he fears further targeting and harm by police with no means of protection and no safe place to live.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application
The main applicant’s written protection claims and supporting evidence are set out in the following documents.
5.1.Protection Visa Application dated 19 September 2017 and accompanying statutory declaration by the main applicant dated 18 September 2017, including English translations of a police indictment and police record of interview.
5.2.Claims submission by the applicants’ representative dated 31 January 2018.
5.3.Statutory declarations by the main applicant dated 21 November 2019 and 2 December 2019.
5.4.Letter from the Australian Government’s Department of Foreign Affairs and Trade dated 1 December 2017 addressed to the main applicant’s wife regarding the termination of her post-graduate scholarship and rejection of her appeal.
5.5.Additional country information: October 2017 Human Rights Watch report, We Will Force You to Confess; and September 2015 Human Rights Watch report, Why Not Call This Place a Prison?.
The main applicant’s written protection claims are summarised as follows:
The applicants are citizens of Rwanda.
The main applicant’s wife owned property in the Rwandan [City deleted] , with her two sisters. They sold the property and the main applicant travelled to Rwanda in July 2017 to complete the sale on his wife’s behalf.
While in Rwanda the main applicant was visited at his house by a village leader [in mid July] 2017 who asked him to contribute to the Rwandan Patriotic Front (RPF)-led government’s re-election campaign ahead of the upcoming presidential election. The main applicant refused.
In the days following, the main applicant was questioned, detained for three days and nights, and tortured, beaten and mistreated by police who accused him of having connections with the opposition group in exile, the Rwandan National Congress (RNC), and of crimes against the Rwandan government. After his release, he was required to report twice a week to police.
Traumatised and fearing for his life, the main applicant approached a friend, a police officer, for help to leave Rwanda and return to Australia as soon as possible. He travelled by bus to Uganda and paid a bribe to cross the border. Providing no reason, the Ugandan immigration authorities stopped him from boarding a flight to Australia and told him to go back to Rwanda.
Back in Rwanda, the main applicant continued to report to police while seeking further help from his police officer friend to leave the country and return to Australia as soon as possible. He met his friend’s contact at the airport, paid a bribe, and was able to board a flight to Australia on [date] August 2017.
The main applicant believes he has been blacklisted by the Rwandan Intelligence Department.
After returning to Australia, the police have visited the main applicant’s parents, brother and sister-in-law in Rwanda on several occasions and questioned them about his whereabouts and when he would be returning to Rwanda. His brother was issued two indictments in March 2018 to appear at the police station to answer questions about the main applicant’s whereabouts and connections with the RNC. In January 2018, his brother stopped receiving his pay from work, and in February, his employment was terminated. These claims are detailed in the chronologies of events from 9 October 2017 to 20 April 2018 attached to the claims submission by the applicants’ representative dated 31 January 2018.
The main applicant’s brother went to Kenya [in] April 2018 following his questioning by police as he was fearful he may be jailed or harmed. He returned to Rwanda [in] October 2018 as life was hard in Kenya, and he wanted to be with his family and look after their mother who he believed to be in danger. These claims are detailed in the main applicant’s statutory declaration dated 2 December 2019.
The main applicant’s mother was arrested and detained overnight in Rwanda by police [in] October 2019 and falsely accused of illegally importing used [goods]. They questioned her about her contact with the main applicant and when he would be returning to Rwanda. These claims are detailed in the main applicant’s statutory declaration dated 21 November 2019.
The main applicant can’t return to Rwanda because he fears he will be killed and his family will be targeted due to what occurred with police when he was last in Rwanda. He may not be able to work as a government [occupation] because he may not get a licence from the government to practise.
The main applicant was persecuted for two main reasons: political opinion (including imputed political opinion) and ethnicity, being a Hutu. He was subjected to threats and intimidation by the government and their supporters and was exposed to violence and torture. If he is returned to Rwanda, he fears he will be killed or indefinitely detained by government officials. The government of Rwanda and its state agencies (such as the police and army) have a demonstrated inability/unwillingness to offer meaningful protection to the main applicant as they have no effective control against the perpetrators of the persecution, and on occasions, the perpetrators are government officials. In many instances, kidnappers and blackmailers have links to the security forces, militias and criminal gangs. Many government security officials are immune from the law and operate in a rogue manner to the benefit of the ruling party. The present government is more favourable with Tutsis and the Hutus are seen as criminals. There is no active civil society in Rwanda. These claims are detailed in the claims submission by the applicants’ representative dated 31 January 2018, which includes country information.
Other departmental records:
7.1.Decision record relating to the delegate’s refusal decision.
7.2.Interview audio file.
7.3.Case file.
7.4.Internal records relating to the applicants.
Application for review
The Tribunal wrote to the applicants’ representative inviting the applicants to attend a hearing on 24 October 2022 and to provide pre-hearing submissions.
Prior to the hearing, the applicants’ representative provided to the Tribunal:
9.1.Confirmation that the main applicant and his wife intended to participate in the hearing with the assistance of applicants’ representative.
9.2.May 2022 UK Home Office Review of asylum processing – Rwanda: country information on general human rights.
9.3.Online BBC, Aljazeera and Human Rights Watch news reports and blog regarding ongoing human rights violations in Rwanda in 2022.
The Hearing
The main applicant and his wife appeared before the Tribunal at a hearing conducted in person on 24 October 2022, with the assistance of an interpreter (in person) in the Kinyarwanda and English languages. The applicants’ representative was present at the hearing.
The main applicant gave the following evidence:
11.1.The main applicant was employed by the Rwandan government as a [occupation] and his wife was employed by the [organisation] as a [occupation]. They bought a house in [Village] in the Muhanga District at the end of 2013 and moved there in 2014 with their young daughter. This meant their driving times to work ([Provinces]) were reduced and the main applicant’s mother could live with them and help look after their daughter. The main applicant’s brother lives around 15km away from the village.
11.2.There are about [number] houses in the village and about [number] people in the district. The main applicant and his wife got to know many people in the village as it is small and every Saturday villagers came together to meet and do activities together.
11.3.The main applicant did not experience any problems with Rwandan authorities during his employment as a [occupation] or at any other time while living in Rwanda. He wasn’t involved in any political activities, but as a government employed [occupation] and as a citizen, the expectation was that he would contribute money to the ruling party, the RPF, whenever required, depending on what activities they needed funding for. It would generally be 10% of the net salary. If a government employee refused to contribute, they would be dismissed from their employment. His wife was also required to contribute to the RPF.
11.4.The main applicant volunteered for the Rwandan [name]. They would meet every month and plan activities. Previously, there were no connections between the [organisation] and the Rwandan government, however over time the government has sought greater control and now [organisation] leaders must be appointed by the government.
11.5.The main applicant’s wife was awarded a scholarship to complete a Masters program in Australia, which would conclude in December 2017. She travelled to Australia in May 2015 on a student visa and the main applicant followed in December that year with their daughter, both as dependents on the student visa. They planned to return to Rwanda in December 2017 once the Masters program was completed and live in their house in [Village]. The main applicant told his work these plans and he felt confident he could resume his [position] when they returned to Rwanda.
11.6.The main applicant’s wife owned property in [City] with her two sisters who live in Rwanda. There was pressure from the sisters to sell the property because they needed money. They sold the property and the main applicant travelled to Rwanda in July 2017 to complete the sale on his wife’s behalf as she had study commitments in Australia and their second child was only a year old. The main applicant planned to stay in Rwanda for about a month during which time he would also complete some improvements on their house in the village, which would be paid for from his wife’s one third share of the proceeds from the sale of the [City] property.
11.7.The main applicant didn’t have any concerns about travelling to Rwanda around the time of the presidential election in early August 2017.
11.8.The main applicant arrived in Rwanda on [in] July 2017 and went to stay in his house in [Village] where his mother was also living. The following day, he travelled to [City] to settle the sale of his wife’s property and to arrange for the distribution of the sale proceeds between his wife and her two sisters.
11.9.On the afternoon of [in] July 2017, the main applicant returned to his house in the village and was visited by one of the village leaders who he didn’t know and believed he’d been appointed since they left Rwanda. The village leader was friendly, he asked the main applicant about Australia and the purpose of his trip to Rwanda, then mentioned the upcoming presidential election and asked him to contribute to the governing party (RPF)’s campaign. The main applicant explained to the village leader that he didn’t have the money as the proceeds from the sale of the [City] property belonged to his wife and her sisters, and he wouldn’t be contributing to the campaign. The village leader didn’t appear irritated by his refusal, told the main applicant it was his choice, and left.
11.10.Village leaders are volunteers, each being responsible for an area (or hill) of the village comprising around 100 houses. They are at the local level of the RPF-led Rwandan government. It is their job to monitor the activities and movements of the village residents and to report regularly to the sector level of government if any problems or issues arise. Village leaders routinely seek contributions to government campaigns from their village constituents whenever the government requires additional funding. As government employees are expected to contribute from their salaries, villagers are also expected to make contributions. People know there will be consequences if they don’t, for example, the government will dismiss an employee or shut down a business whose owner doesn’t comply.
11.11.The Tribunal put to the main applicant news reporting that the RPF and President Kagane are very well-funded with a huge resource base and vast business portfolio estimated to be worth $100 million, and questioned why they would be asking for money from the main applicant. He replied that the government systematically collected money from all Rwandan citizens, everyone was expected to contribute.
11.12.The main applicant thought nothing of his conversation with the village leader. [In] July 2017 however he received a summons to appear at the local police station [in] July 2017. The main applicant appeared in accordance with the summons. The Tribunal referenced the English translated police record of interview provided as part of the protection visa application, in particular that the main applicant was accused of the following crimes: [crimes against the government of Rwanda]. The main applicant confirmed that this was the accusation against him, and that after the police questioned him and took a statement and made him wait for three hours, he was released. He thought that was the end of the matter. The main applicant’s account of what occurred at the police station [in] July 2017 is set out in detail in his statutory declaration dated 18 September 2017.
11.13.[In] July 2017, the main applicant was arrested by police at his house in the village and detained for three days, during which time he was blindfolded, interrogated about his affiliations with the RNC, tortured, dehydrated and beaten. The main applicant’s account of what occurred during his arrest and detention from [in] July 2017 is set out in detail in his statutory declaration dated 18 September 2017.
11.14.The main applicant was released from detention [in] July 2017 and told to report to the police station every Monday and Friday. The main applicant’s account of his fears of what may happen to him in Rwanda and the steps he took to return to Australia as quickly as possible are set out in detail in his statutory declaration dated 18 September 2017. While he remained in Rwanda, the main applicant believes he reported to police on about five occasions. On each occasion, police noted his appearance and was allowed to leave.
11.15.The main applicant believes the village leader would have reported his refusal to contribute to the government’s re-election campaign and, as a result, he was questioned, arrested, detained and harmed by police.
11.16.The Tribunal referred to the country information submitted by the applicants’ representative and its extensive coverage of the various forms of harm and mistreatment opponents of the Rwandan government are subjected to. The Tribunal noted that the information largely focused on high-profile opponents such as journalists, activists, former RPF members, and RNC and other opposition party members. The Tribunal asked the main applicant how he could be a target if he had never been involved in any political activities including any opposition to the government. The main applicant replied that those who go abroad are considered to be a threat to the government because they are suspected of gathering information against the government and returning to use it against them. He believes that, having returned to Rwanda from Australia to sell his wife’s property, when he refused to make a contribution to the government’s re-election campaign, the police suspected he was working against the government so accused him of being an RNC supporter. He also believes that he would still be a target for Rwandan authorities for these reasons if he were to return to Rwanda.
11.17.The main applicant did not vote in the 2017 presidential election while he was in Rwanda, nor was he asked or pressured to vote. Voting is compulsory in Rwanda; people are recorded as having voted or not against a list that is updated around six months before an election. The main applicant wasn’t in Rwanda when the list was updated prior to the 2017 election, so he didn’t appear on the list and therefore avoided scrutiny.
11.18.The main applicant has not participated in any activities in Australia that may have attracted the attention of the Rwandan government. He keeps up to date with the political situation by reading and listening to news reporting, but otherwise keeps quiet and doesn’t post on Facebook. Connections through the [volunteer organisation]and other friends who previously communicated with him on Facebook no longer do so, he thinks because they would consider it too risky for them given what happened to him in Rwanda.
11.19.The main applicant does not know why he was prevented by Ugandan immigration authorities from boarding a flight to Australia from Uganda [in] July 2017 and forced to return to Rwanda. He thinks it may have had something to do with the level of distrust between Uganda and Rwanda at the time and they may have suspected him of spying, however he was never given a reason.
11.20.The Tribunal put to the main applicant that if, as he claimed, he had been required to report to police twice each week following his detention, and been blacklisted by the Rwandan Intelligence Department, his movements would have been closely monitored by Rwandan police and he would have been prevented from boarding a flight to Australia from Rwanda [in] August 2017. The main applicant replied that it was the help he got from his police officer friend that allowed him to escape Rwanda without being stopped by police. In particular, his friend asked him to produce the documents proving his wife’s Australian scholarship and their marital relationship, and put him in contact with a colleague, who the main applicant also believed to be a police officer. The contact met the main applicant at the Kigali airport, demanded he pay a bribe, then escorted him through a number of checkpoints before he was able to board the flight.
11.21.The main applicant’s accounts of the police targeting and questioning his brother, sister-in-law, and mother about his whereabouts and activities are set out in detail in his statutory declaration dated 18 September 2017, the claims submission by the applicants’ representative dated 31 January 2018 attaching two tables headed ‘updates on what’s been happening’ covering the period 9 October 2017 to 20 April 2019; and statutory declarations by the main applicant dated 21 November 2019 and 2 December 2019.
11.22.The arrest, detention and questioning of the main applicant’s mother by police in October 2019 is the last occasion the Rwandan police or authorities targeted the main applicant’s family members. The Tribunal put to the main applicant that this suggests he is no longer of interest to police. The main applicant replied that the police stopped pursuing his family members because they knew he’d gone back to Australia and there was nothing to be achieved, however he believes that if he returns to Rwanda he would be directly targeted and harmed as he was previously, especially given that he managed to get out of Rwanda following detention.
11.23.The Tribunal questioned the main applicant about the claim made in the claims submission by the applicants’ representative dated 31 January 2018 that he was targeted by Rwandan authorities for his Hutu ethnicity. He replied that this related to the line of questioning by police when he was in detention, in particular in relation to the 1994 genocide and his family’s involvement, raising suspicions that as Hutus they may have been involved in genocide denial.
11.24.The main applicant and his wife do not have plans to sell their house in [Village] as his mother lives there, she is elderly and needs a home. He also sends money to her.
11.25.The main applicant fears that if he is returned to Rwanda he will be targeted and harmed by police as he was previously and on the same suspicions that as a Rwandan returning from abroad he is working against the Rwandan government. Whereas previously he was arrested at his home in the village, he fears the next time he would be picked up in the street and taken away, tortured and killed, never to be seen again; and his family would be told he disappeared, but an investigation into his disappearance would never happen.
11.26.The main applicant believes he would never get a licence to work as a government [occupation] because of his previous detention.
11.27.The main applicant believes that his wife wouldn’t be able to get a job as a [occupation] with the government because she was fired from her previous position when she advised them of her Australian scholarship and because she was vocal about her experience of sexual harassment by her manager.
11.28.The main applicant believes no protection is available to him in Rwanda and there is nowhere he could move to that would be safe. All levels of government are connected; village leaders are responsible for reporting to the sector on the movements and activities of their village constituents, they don’t advocate for constituents’ rights.
11.29.The reason the main applicant and his family came to Australia in 2015 was to enable his wife to complete a Masters program having been awarded an Australian scholarship. He and his wife decided to apply for protection in September 2017, about a month after he returned to Australia from his visit to Rwanda.

The main applicant’s wife gave the following evidence:
12.1.When asked by the Tribunal whether she or any of her family members had experienced any problems with the Rwandan authorities while in Rwanda, she replied that when she was employed by the Rwandan [organisation], her manager sexually harassed her and other women in the workplace. She didn’t report it to police because she feared repercussions and losing her job. She did however go to Kigali in 2014 and put in a formal report to the senior management.
12.2.She applied for the Australian scholarship in 2013, was shortlisted in 2014, and with the help of another woman in the workplace, travelled to [location] in early 2015 for her interview, following which she was awarded the scholarship. When she advised her manager about being shortlisted, he was enraged, she thinks because she had resisted his sexual advances and perhaps because he knew she had reported him to senior management. For the remainder of her time with the [organisation] she believes she was punished for her actions and effectively sidelined from performing her job by not being provided the appropriate resources, for example a car to do [work] and to visit [consumers]. Eventually, she was fired from her job having made the choice to take up the scholarship.
12.3.She came to Australia in May 2015. Before starting her Masters, she had to complete an English course to get her English to the requisite standard for Masters. She planned to complete the Masters program and return to Rwanda where she hoped to be promoted to a role with the [organisation] where she could use her advanced qualifications and skills.
12.4.Her parents were killed in the 1994 genocide. She is like a mother to her two sisters in Rwanda. They inherited their parents’ properties. She agreed to sell one of the properties in [City] because her sisters needed the money. Her husband went to Rwanda in July 2017 to sort out the sale and proceeds on her behalf because of her study commitments and having had their second child only the year before.
12.5.The timing was such that she had completed all of the program assessments and was awarded her Masters, however her scholarship was terminated when the protection visa application was made as it was contrary to the approved visa status under the terms of the scholarship. She understands that if she stays in Australia, she will have to enter into an arrangement with the Australian Government to repay all or part of her scholarship entitlements.
12.6.Having been fired from her job with the [organisation] and having made a sexual harassment complaint to senior management, which is on the record, she fears she will never get another job in Rwanda and she fears what other repercussions there might be for her as a result if she is returned to Rwanda. The Tribunal noted to the applicants’ representative that it appeared the main applicant’s wife was raising a protection claim separate from and unrelated to her husband’s claims. He confirmed this and asked that her claim be considered with reference to the country information already submitted (in particular paragraph 7.2.9 on page 42 of the May 2022 UK Home Office Review of asylum processing – Rwanda: country information on general human rights) and further information to be provided post hearing.
12.7.Her sisters were questioned on a number of occasions by Rwandan police about her husband’s activities and intentions after his detention and return to Australia.
12.8.She finds it very difficult to think about what might happen to them if they are returned to Rwanda. She is very scared her husband will be harmed and taken away. They have been together for 21 years, she would be devastated without him, and does not know how she would cope alone with their young children and unable to get a job in Rwanda.
Post-hearing submissions
The applicants’ representative provided the following material to the Tribunal :
13.1.Rwanda Today news online, “Sexual harassment and violence against women plague job market”, 20 October 2022.
13.2.Transparency International Rwanda official website, “Gender-Based Corruption is present at the Workplace”, 28 September 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE – MAIN APPLICANT
The Tribunal considers the main applicant’s protection claims summarised in paragraph 6 of this decision record and his supporting evidence set out in his statutory declaration dated 18 September 2017, the claims submission by the applicants’ representative dated 31 January 2018, his statutory declarations dated 21 November 2019 and 2 December 2019, and his oral evidence at hearing to be comprehensive, consistent and highly credible.
The Tribunal considers the correspondence by the main applicant’s wife with her Australian university’s student services department contemporaneously with the events unfolding in Rwanda around her husband’s questioning, arrest and detention by police and his subsequent efforts to leave Rwanda to be highly corroborative of the main applicant’s claims and evidence.
Country information
The Tribunal has considered the country information referenced in Attachment B and notes the following extracts in particular in light of the main applicant’s claims and evidence:
16.1.Rwanda is currently composed of two layers of government (central and local) and of six administrative entities. The country is divided into four Provinces and the City of Kigali which are also further divided into 30 districts. Moreover, the districts are further divided into 416 Sectors. Additionally, the sectors are further divided into 2148 cells and lastly, these cells are divided into 14837 villages. All these subdivisions are headed by different people at every level and they all have different roles though directing towards the same cause.
The Village is the smallest politico-administrative entity of the Country and hence closest to the people. Therefore, this is the entity through which the problems, priorities and needs of the people at a grassroots level will be identified and addressed. It is also the basic unit for mobilization and interaction of the population.
Leaders at the Village level are volunteers who are elected, to serve their country, through a direct and universal suffrage by all the residents of the village aged above 18.
[Republic of Rwanda webpage]
16.2.The RNC refers to itself on its website as a "political organization". However, in its 2010 Proclamation Establishing the Rwanda National Congress, the RNC states that the organization is "not a political party" but an "umbrella, broad based organization for all Rwandans to exert pressure and advocate for democratic change through peaceful means". Sources indicate that the RNC is a group of exiles that oppose the government of President Paul Kagame. Sources also indicate that the RNC was formed by former senior officials of Kagame's government.
Human Rights Watch reports the "repression of critical voices inside Rwanda" and that Rwandan dissidents have been victims of "attacks and threats" in Kenya, Uganda, South Africa, and in Europe. Similarly, an article published by Bloomberg, a New York-based international news agency, reports claims by the RNC that opponents of the government have been "targeted around the world," and that "at least 11 dissidents" have been killed in Rwanda, Kenya, Uganda, as well as in Cameroon and Belgium.
[Immigration and Refugee Board of Canada, 26 March 2014]
16.3.Human Rights Watch released a chronology of violations of the right to freedom of expression, association, and assembly in Rwanda between the country’s December 2015 referendum – allowing the president to run for a third term – and the election, which Kagame won with a reported 98.79 percent of the vote.
In the period between the referendum and the August 2017 presidential elections, Human Rights Watch documented an ongoing pattern of harassment, arrests, and detention of opposition party leaders and supporters, activists, and journalists. Several were forcibly disappeared or prosecuted after making comments critical of the current government or ruling party.

Human Rights Watch has documented that poor people, critics of government decisions regarding land disputes, and suspected petty criminals have been arbitrarily arrested, held in illegal detention centres, and in some cases executed, forcibly disappeared, tortured, or mistreated. These tactics ensure that citizens are afraid to speak out against the government.
[Human Rights Watch report, Rwanda: Politically Closed Elections, 18 August 2017]
16.4.In a context of very limited free speech or open political space, President Paul Kagame overwhelmingly won a third term in August [2017] with a reported 98.8 percent of the vote, after a 2015 referendum allowed him to run for a seven-year term and two additional five-year terms thereafter. Before and after the August election, the Rwandan government continued to limit the ability of civil society groups, the media, international human rights organizations, and political opponents to function freely and independently or to criticize the government’s policies and practices.
State security forces in the Western Province summarily killed at least 37 suspected petty offenders between April 2016 and March 2017, in what appeared to be part of a broader strategy to spread fear, enforce order, and deter any resistance to government orders or policies. Rwandan authorities continued to arrest and detain people in unofficial military detention centers, where scores of detainees have been tortured in recent years.
In the days after the vote, Human Rights Watch interviewed local activists and private citizens who spoke of intimidation and irregularities during the campaign and voting period.
Despite Kagame’s overwhelming win, government authorities took no chances and arrested, forcibly disappeared, or threatened political opponents in the weeks following the August vote.
People accused of crimes against state security continued to be arrested and held unlawfully in military camps. Many people held in these camps were tortured in an attempt to force them to confess or accuse others. Authorities continued to round up street vendors, sex workers, street children, and other poor people and detained them in so-called transit centers across the country. Conditions in these centers are harsh and inhumane, and beatings are common.
[Human Rights Watch, Rwanda: Events of 2017]
16.5.Sources indicate that the ruling Rwandan Patriotic Front (RPF) led by President Paul Kagame has targeted political dissidents, journalists, and human rights activists, including Rwandans residing abroad.
Sources stated that both Hutu and Tutsi critics of the government have been targeted. In an interview with the Research Directorate, a professor of political science and international relations at Boston University whose research focuses on state-society relations in Africa reported that although both Hutu and Tutsi have been targeted, Hutu typically face "greater scrutiny".
According to sources, the authorities can suppress "any" political dissension, including through "pervasive surveillance, intimidation, rendition, torture, and suspected assassinations" or demotion, detention or forcing an individual to leave Rwanda. In correspondence with the Research Directorate, a professor of African history and political studies who is retired from France's Centre national de la recherche scientifique, who is also a fellow of the Atlantic Council (Washington, DC) and has authored two books on the Rwandan genocide, stated that physical violence including "murder, beatings and detention" against political opponents is "now more rare" than before, and that common treatment includes confiscations of property … harassment (physical and via phone or internet), financial prosecution, harassment of relatives, deprivement of legal documents, temporary detention without causes followed by release without explanation, prosecution for non-existent crimes, spying on mail and e-mail correspondence, threats to relatives living abroad … housebreaking, stalking and other general measures designed to make … life difficult.
In an interview with the Research Directorate, a senior lecturer of history at the University of Glasgow, who has conducted research on the Rwandan genocide, reported that the Rwandan government maintains an interest in the activities of any vocal critic of the RPF and Kagame, past or present, or anyone working in the field of human rights. Sources reported that once a person is perceived as a political opponent by the government, it is difficult to shed this label.
Sources reported that the passage of time does not diminish the risk faced by political opponents of the government. The Senior Lecturer indicated that the authorities keep watching individuals "in a lot of cases," and the situation could escalate over "any minor infraction". In correspondence with the Research Directorate, an Associate Teaching Professor at Iowa State University who has conducted research on the RPF reported that, based on their research and follow-up interviews with known critics of the RPF, these individuals faced difficulties accessing employment, education and health care resources, and were "constantly harassed" by authorities.
However, in an interview with the Research Directorate, an associate professor of anthropology at a university in the US reported that the treatment depends on whether the person remains in opposition and continues to publicly criticize the Rwandan government, how they opposed the government in the past, and whether they maintain a high profile.
According to the Senior Lecturer, if an individual stops criticizing the government after being called in for questioning by the police, it is "possible" for the person to continue on with their lives, but they would be kept under surveillance for "a long period of time". The same source indicated that if the individual does not silence their criticism at that point, their situation "can escalate quite quickly" and result in "prison time".
The Associate Professor reported that someone with a low profile is "probably less likely" to be pursued over time. The Senior Lecturer indicated that an activist who focused on a single issue may be able to return to Rwanda, but it "depends on the particular issue" and there is also a tendency to assume that someone who has challenged the government over one issue "might be likely" to challenge the government on another issue. The Professor of political science indicated that it is not only high-profile opponents that are targeted by the government, but rather that "everyone feels watched and is scared" and that individuals "at the grassroots" level are also regularly arrested or go missing.
The Senior Lecturer reported that Rwandan-born Tutsi genocide survivors can sometimes be targeted by the government because of their different experience of the genocide from those within the RPF, and some have been "demoted" or "imprisoned".
Sources reported that individuals who were abroad and have returned to Rwanda [or have been deported back to Rwanda] are viewed with suspicion upon their return.
Sources report that the Rwandan government targets family members to control Rwandans residing abroad. The same sources indicate that family members can face "harassment" or "intimidation". In an interview with the Research Directorate, Lewis Mudge indicated there have been cases of "acute pressure" on family members of political opponents who have left Rwanda. According to the Senior Lecturer, targeted family members face a "standard pattern of escalation" from authorities, which goes from "surveillance and detainment, to potential torture". The Associate Professor reported that overseas family members who return home might be detained, charged with crimes, or prevented from leaving the country.
Sources indicate that fears over the safety of family members back in Rwanda are common concerns amongst Rwandans abroad who feel targeted by the government. The Associate Professor reported that the "general perception" is that if a political opponent stays in Rwanda, their family members are "not typically targeted". The Professor of political science, however, indicated that family members will not be spared just because the opponent has remained in Rwanda.
The Senior Lecturer reported that the "closer the affiliation" one has to a political opponent, "the more likely" one is to be targeted themselves. The Professor of political science stated that family members must keep a low-profile, as they are "more likely to face trouble" from the authorities stemming from "any missteps". The COI Expert indicated that the government views family members of opponents as "pressure points" that can be used by the authorities to "influenc[e] or [break]" the political opponent.
According to the Associate Teaching Professor, the targeting of an opponent's family members does not diminish over time. Mudge, however, reported that after "an acute period of real harassments and threats and fears," the treatment of the family member would "dissipate into a more bureaucratic harassment" including difficulty maintaining or finding employment, sudden accusations of tax fraud, and confiscation of property. Sources noted that family members of political opponents remain under surveillance, even after ten years. The Professor of political science reported that the authorities "are always going to be aware" of the family and are "looking for infractions to seize upon".
The Senior Lecturer reported that in the case of low-profile political opponents, the treatment of family members is "not so extreme". The same source added, however, that "a fear of persecution" and anxieties of diminished livelihoods for these people remain.
[Immigration and Refugee Board of Canada, 26 August 2021]
16.6.The ruling Rwandan Patriotic Front (RPF) continued to stifle dissenting and critical voices and to target those perceived as a threat to the government and their family members. The space for political opposition, civil society, and media remained closed. Several high-profile critics, including opposition members and commentators using social media or YouTube to express themselves, went missing, were arrested or threatened. Arbitrary detention, ill-treatment, and torture in official and unofficial detention facilities was commonplace, and fair trial standards were routinely flouted in cases deemed sensitive. There were credible reports of arbitrary detention and mistreatment of people accused of “deviant behaviors,” including street children, sex workers and petty vendors.
Rwanda’s government and those operating on its behalf continued to exert pressure on Rwandan refugee and diaspora communities, as far afield as Australia and Canada. Refugees who are known critics of the government have been threatened and harassed. In Africa, Human Rights Watch has documented and received credible reports of Rwandan refugees and asylum seekers being forcibly disappeared and returned to Rwanda, or killed.
[Human Rights Watch, Rwanda: Events of 2021]
16.7.3.1.2 Freedom House noted in its Freedom in the World Report 2022, reporting on 2021 events, that ‘The government has a long history of repressing its political opponents, and members of opposition parties face the threat of disappearance, arbitrary arrest and detention, and assassination.’
3.1.3 The Bertelsmann Stiftung’s Transformation Index (BTI) 2022 on Rwanda, covering the period 1 February 2019 to 31 January 2021, noted in its Executive summary ‘There is generally very little room for power-sharing, an independent and vital civil society and freedom of expression.’
3.1.4 Human Rights Watch (HRW) reported, in its World Report 2022 covering 2021 events, that ‘The ruling Rwandan Patriotic Front (RPF) continued to stifle dissenting and critical voices and to target those perceived as a threat to the government and their family members. The space for political opposition, civil society, and media remained closed.’ In an update in March 2022, HRW’s assessment of the space for opposition appeared to soften from ‘closed’ to ‘weak’: HRW stated: ‘Rwanda has very few opposition parties, and human rights organizations and independent media remain weak.’
3.5.1 In the context of the 2017 election, the Summary of Stakeholders’ submission to UNHRC noted ‘Opposition candidates had reported harassment, threats, and intimidation. Government authorities had arrested, forcibly disappeared, or threatened political opponents.’
3.5.9 The BTI 2022 report noted ‘Political opponents are often targeted and those who engage in targeting are never prosecuted. Nor are the cases investigated. There have been accusations of the police torturing people in so-called safe houses across Kigali. Despite the outcry over their existence, the government has never admitted they exist or addressed the violations committed in them.’
3.5.13 In a May 2019 response, the IRB cited sources who said: ‘… those openly critical of the government or opposing the government and who hold [translation] “locally important” positions (for example, a local prominent citizen or teacher) are especially at risk of being targeted by these forms of surveillance and control and of being threatened, arrested or physically injured...’, and ‘… “even low members [of opposition parties] who try to run, for instance, in local elections,” as well as supporters of those opposition parties, risk being harassed by law enforcement, or arrested, and face risks of “disappearance, even murders”, [but] the consequences can also be material, such as confiscation of property by the government or expropriation…’
[UK Home Office Review of asylum processing – Rwanda: country information on general human rights (May 2022)]
16.8.Rwanda’s ruling party, the Rwandan Patriotic Front (RPF), has waged a brutal campaign against real and perceived critics of the government for years. Recently, high-profile critics, including internet bloggers, have been arrested and threatened. Some have recently said they were tortured in detention. The authorities rarely credibly investigate enforced disappearances or suspicious deaths of opponents. Arbitrary detention and ill-treatment in unofficial detention facilities is common, especially around high-profile visits or large international events such as the recent Commonwealth Heads of Government Meeting.
[Human Rights Watch news online, “Rwanda: Human Rights Should be Priority on Blinken trip”, 8 August 2022]

There is no evidence before the Tribunal that is inconsistent with the country information.
The Tribunal considers that the main applicant’s claims and evidence and supporting material are consistent with the country information.
Other considerations
In considering the claims and evidence, the Tribunal has taken account of:
19.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
19.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Findings of fact
Based on the consideration of claims and evidence and supporting material set out above, and taking into account the country information and other considerations, the Tribunal finds that:
20.1.The main applicant is a citizen of Rwanda.
20.2.The secondary applicants are citizens of Rwanda and members of the same family unit as the main applicant.
20.3.The main applicant has no right to enter or reside in, temporarily or permanently, any other country.
20.4.The main applicant was visited at his house in [Village] in July 2017 by a village leader who asked him to contribute money to the campaign for the re-election of the RPF-led Rwandan government, and the main applicant refused to do so.
20.5.In the days following his refusal to contribute to the government’s re-election campaign, the main applicant was summoned by police who falsely accused him of crimes against the government of Rwanda and questioned him about why he was in Rwanda and his knowledge of and connections with the RNC.
20.6.Days after being released from police questioning, the main applicant was arrested by police at his village home, taken into detention for three days, blindfolded, interrogated about his affiliations with the RNC, tortured, dehydrated and beaten.
20.7.Following his release from detention, the main applicant reported to police from time to time as required.
20.8.Following his release from detention, the main applicant feared what police may do to him next, including take his life, so engaged a police officer friend to help him leave Rwanda as soon as possible.
20.9.The main applicant was able to board a flight to Australia from Rwanda without being stopped by police because his police officer friend had another police contact who was prepared to accept a bribe to escort him through the airport checkpoints.
20.10.After returning to Australia in August 2017, the main applicant’s brother, sister-in-law, and mother were on a number of occasions through to October 2019 targeted and questioned by police about his whereabouts and activities.
20.11.If he is returned to Rwanda, the main applicant fears being targeted, harmed and his life put at risk by Rwandan authorities as a person who has previously been targeted and harmed by Rwandan police under suspicion of being a member of the RNC and imputed with political views that oppose the Rwandan government.
20.12.Until the main applicant was questioned, arrested and detained by police in July 2017, it was his intention that he and his family would return to Rwanda at the end of 2017 when his wife had completed her Masters program and they would resume living in their house in [Village] and he and his wife would seek employment. On returning to Australia in August 2017, the main applicant believed he could not return to Rwanda as planned due to his fears of persecution, and in September that year applied for protection.
20.13.If returned to Rwanda, there is a real or substantial chance that upon or within the reasonably foreseeable future of the main applicant’s return that:
20.13.1.The main applicant would try to return, with his wife and children, to their home in [Village], and make contact with his mother and brother.
20.13.2.The main applicant would be identified and targeted by Rwandan police as having been abroad and having been previously questioned, arrested and detained on suspicion of his RNC connections and anti-government activities, or reported to Rwandan police by the [Village] leadership.
20.13.3.The main applicant would continue to be perceived by Rwandan police as a person having connections with the RNC and otherwise involved in activities opposing the Rwandan government, and in this context, as a person of Hutu ethnicity, he would face greater scrutiny from police.
20.13.4.The main applicant would be arbitrarily arrested, detained and questioned about his connections with the RNC and his involvement in activities opposing the Rwandan government, subjected to harm, ill-treatment and torture, and forcibly disappeared or killed.
20.13.5.Based on the main applicant being perceived as having connections with the RNC and otherwise involved in activities opposing the Rwandan government, he would face difficulties accessing employment and health care resources and would be constantly harassed by the Rwandan authorities.
20.13.6.The main applicant’s whereabouts and activities in Rwanda would be monitored by the Rwandan police, or monitored by the [Village] leadership and reported on to Rwandan police, rendering him unable to avoid being targeted and harmed by Rwandan authorities.
20.14.If returned to Rwanda, there would be no protection available to the main applicant from Rwandan authorities as they would be the perpetrators of the targeting and harm. The RPF-led Rwandan government continues to target those perceived as a threat to the government. Arbitrary detention, ill-treatment and torture in official and unofficial detention centres are commonplace and often not investigated, human rights organisations and independent media remain weak, and fair trial standards are routinely flouted.
20.15.If returned to Rwanda, the main applicant would be unable to modify his behaviour to avoid being targeted and harmed by Rwandan authorities as his vulnerability to targeting and harm relates to having been abroad and having been previously questioned, arrested and detained on suspicion of his RNC connections and anti-government activities, and continuing to be perceived as such by Rwandan police, and in this context, facing greater scrutiny as a person of Hutu ethnicity.
Application of law
The key issue is whether the main applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
Based on the findings of fact:
22.1.The main applicant is a non-citizen in Australia.
22.2.The secondary applicants are non-citizens in Australia and members of the same family unit as the main applicant.
22.3.The main applicant fears being persecuted for reasons of an anti-government political opinion imputed to him by Rwandan police, his Hutu ethnicity, and his membership of a particular social group, being a Rwandan citizen returning to Rwanda from abroad, such reasons being the essential and significant reasons for the persecution.
22.4.There is a real chance that, if the main applicant returned to Rwanda, he would be persecuted for one or more of these reasons.
22.5.The persecution would involve serious harm to the main applicant and systematic and discriminatory conduct towards the main applicant by Rwandan authorities.
22.6.The real chance of persecution of the main applicant relates to all areas of Rwanda.
22.7.There are no effective protection measures available to the main applicant in Rwanda.
22.8.The main applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in Rwanda.
22.9.The main applicant has a well-founded fear of persecution as defined in s 5J of the Act.
22.10.The main applicant is outside Rwanda, his country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of Rwanda.
22.11.The main applicant is a refugee as defined by s 5H(1)(a) of the Act.
CONCLUSIONS
Based on the evidence, analysis, reasoning and findings set out above, the Tribunal is satisfied that the main applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the main applicant satisfies the criterion in s 36(2)(a) of the Act, the Tribunal is satisfied that the secondary applicants satisfy the criterion in s 36(2)(b) of the Act.
The Tribunal considered the evidence of the main applicant’s wife to be highly credible. However, having concluded that the main applicant’s wife, as a secondary applicant, satisfies the criterion in s 36(2)(b) of the Act, the Tribunal does not consider it necessary to decide whether the main applicant’s wife, in her own right, meets the refugee or complementary protection criterion under the Act.
decision
The Tribunal remits the matter for reconsideration with the direction that the main applicant satisfies s 36(2)(a) of the Act and the secondary applicants satisfy s 36(2)(b) of the Act.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
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 themselves 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).
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.
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).
Relevant extracts 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.
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
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 the 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.
(6)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.
36     Protection visas – criteria provided for by this Act
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
ATTACHMENT B
Relevant Country Information
Immigration and Refugee Board of Canada, Rwanda: the Rwandan National Congress (RNC), including information on its structure and leaders; treatment of RNC members by the government, 26 March 2014.
Dawn online, “Rwanda arrests expose workings of a paranoid state”, 12 September 2014.
Human Rights Watch report, Why Not Call This Place a Prison?: Unlawful Detention and Ill-Treatment in Rwanda’s Gikondo Transit Center (September 2015).
The East African online, “Rwanda’s political parties urge revision of law on funding”, 2 July 2016.
The East African online, “Rwanda’s Green Party mulls bank loan to fund presidential campaign”, 14 March 2017.
Amnesty International report, Setting the Scene for Elections: Two Decades of Silencing Dissent in Rwanda (July 2017).
Human Rights Watch report, Rwanda: Politically Closed Elections, 18 August 2017.
Human Rights Watch report, We Will Force You to Confess: Torture and Unlawful Military Detention in Rwanda (October 2017).
Final Report of the African Union Election Observation Mission to the 3-4 August 2017 Presidential Election in the Republic of Rwanda, 2017.
Human Rights Watch, Rwanda: Events of 2017.
Country information referenced in claims submission by the applicants’ representative dated 31 January 2018.
Immigration and Refugee Board of Canada, Rwanda: Treatment of people who have opposed the Rwandan government in the past, including their family members (2000-July 2021), 26 August 2021.
Human Rights Watch, Rwanda: Events of 2021.
UK Home Office Review of asylum processing – Rwanda: country information on general human rights (May 2022)
Online BBC, Aljazeera and Human Rights Watch news reports and blog regarding ongoing human rights violations in Rwanda in 2022.
Rwanda Today news online, “Sexual harassment and violence against women plague job market”, 20 October 2022.
Transparency International Rwanda official website, “Gender-Based Corruption is present at the Workplace”, 28 September 2022.
Republic of Rwanda Government webpage

[2022] AATA 5034

26 October 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness