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0903098 [2009] RRTA  1137  (14 December 2009)

Last Updated: 15 January 2010

0903098  [2009] RRTA 1137  (14 December 2009)

DECISION RECORD

RRT CASE NUMBER: 0903098

DIAC REFERENCE(S): CLF2008/161759

COUNTRY OF REFERENCE: Rwanda

TRIBUNAL MEMBER: Linda Kirk

DATE: 14 December 2009

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant, who claims to be a citizen of Rwanda arrived in Australia [in] November 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa [in] December 2008. The delegate decided to refuse to grant the visa [in] April 2009 and notified the applicant of the decision and his review rights by letter [on the same day].
3. The delegate refused the visa application on the basis that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention
4. The applicant applied to the Tribunal [in] April 2009 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.412 of the Act.

RELEVANT LAW

6. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.
7. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
8. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Migration Regulations 1994.

Definition of ‘refugee’

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 and Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387.
11. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
12. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
13. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
14. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
15. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
16. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
17. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
18. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

19. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

Background

20. The applicant is an 18 year old national of Rwanda. He arrived in Australia [in] November 2008 as a holder of a 459 visa granted to him for the purposes of playing in the Homeless World Cup for Rwanda.
21. [In] December 2008 the applicant lodged a Protection Visa application in which he sought protection in Australia so that he did not have to return to Rwanda.
22. In Part C of the Form 866 Protection Visa application, under the section headed Your Reasons for Claiming to be a Refugee, the applicant set out his protection claims.
23. In response to the question, why did you leave that country, the applicant said “I left Rwanda because I had a well-founded fear of persecution due to my social group.”
24. In response to the question what do you fear may happen to you if you back to your country, the applicant stated “I will be persecuted by the authorities.”
25. In response to the question who do you think may harm or mistreat you if you go back, the applicant said “the authorities.”
26. In response to the question why do you think this will happen to you if you go back, the applicant replied “because of my social group consisting of failed asylum seekers.”
27. In response to the question do you think the authorities of that country can, and will, protect you if you go back? If not, why not, the applicant said “no – they are the ones that want to persecute me.”
28. The applicant’s Protection claims were elaborated upon in a Statutory Declaration dated [in] December 2008 and which states the following:

I, [applicant name] of [address] in the State of Victoria, unemployed, do solemnly and sincerely declare as follows:

1. I make this Statutory Declaration in support of my Application for a Protection Visa with the Department of Immigration and Citizenship.
2. There are many events that happened in my life that I do not know the exact date of. I have talked about these events with reference to other events taking place at that time.
3. I arrived in Australia on [date] November 2008 on a valid Rwandan passport. My passport was organised for the Homeless World Cup. A Non Government Organisation called the [organisation] helped me to obtain a passport and paid for all of the costs.
4. I was born on [date] in [location] Uganda I do not identify with an ethnic group as they have been removed from Rwanda. All people in Rwanda now identify as Rwandan citizens not as members of ethnic groups.
5. My father [name] (D.O.B unknown) worked as a farmer with cattle. My mother [name] (D.O.B unknown) was at home taking care of the family. They moved to Uganda in 1959 due to the war in Rwanda. My parents were Tu tsi. I have an older sister [Person 1] (D.O.B [date]/1984), an older brother [Person 2] (D.O.B unknown but he is about 21) and a younger sister [Person 3] (D.O.B unknown but she is about 16). In 1993 my parents and [Person 3] returned to Rwanda thinking there was peace and that it would help the family business. I stayed in Uganda. There was difficulty feeding the cows in Uganda and so they hoped they could feed the cows in Rwanda. My [Uncle 1] (D.O.B unknown) was still in Uganda and [Person 1], [Person 2] and I moved to the same area that he was living in. We moved to [location] in Umutara Province.
6. The war in Rwanda broke out in April 1994. At this time I was in Uganda living with my [Uncle 1] who was a retired teacher. I was only a small child at the time and so have very few memories of what happened, my older brother has told me many stories about our family life.
7. My parents were both killed in 1994 during the genocide in Rwanda In 1996 after watching reports on the news my uncle decided it was safe to go back to Rwanda. When we returned to Rwanda we could not find my parents. I am not sure where they died. My baby sister [Person 3] survived the genocide in Rwanda by being taken and hidden by a neighbour who then took care of her. When we returned I was told this is your little sister [Person 3], when I last saw her she was a baby and she was now grown up so I could not identify her. My sister [Person 3] came and lived with me my brother and my Uncle in about 1999.
8. From 1996 up until 2004 my brother [Person 2] and I were living with my uncle. We lived at Umutara Province, [location]. My sister [Person 1] continued her secondary study at a school in Kigari province in Rwanda. She would return and stay with us in the holidays. My uncle could not financially support me and my brother and younger sister as he did not have enough money to feed us and to send us to school.
9. In 2004 my uncle told me we would have to go and live with [Person 1] as she now had some money to help support us because she was going to university. We moved to Kigari Province [location]. She was living in a rented house in the city. When we arrived at my sisters I saw that we would not have enough money from her student allowance and so decided to leave and to live on the streets. I told my brother and sisters that I was going to leave and they said “No. you must stay and live with us” But there was not enough food and we could not afford to all study. I realised that if I left my younger sister could go to primary school and my older brother could go to secondary school, and that they would have more money for food.
10. I had attended primary school and was meant to start secondary school in 2004. I wanted to study but it is expensive to go to secondary school. I decided to go and find another life. I thought that I could make money by carrying bags for rich people, this would be enough for me to buy some food a biscuit or a cake and survive day to day.
11. When I left home I started sleeping on the streets. I stayed in Kigari, I would find a quiet street to sleep in. There was a certain place I would regularly sleep using a cardboard carton. From the money I had made I bought a blanket. It was very cold but I learnt to be patient. I learned to be patient when I had nothing to eat too. There were many young boys sleeping on the streets at this time. I made friends with other boys who liked to play soccer. Sometimes after playing football people would invite me back to their house and let me wash and eat a meal there. Other times rich people would let me stay a night at their house. I think this was because I made them happy when they watched me play soccer.
12. In general the security on the streets was okay but sometimes it was dangerous as drunk people or people who had taken opium would do bad things to you. One day two drunken men were fighting when I was there, I tried to break it up and one of them started fighting me. I pushed one man away from the other and as I turned to run away to safety a man slashed the back of my leg once with a metal stick that was sharp in some way. I now have a scar above my right knee because of this. The noise of the attack made other people come to see what was happening which saved me from further attack. A man saw that I was injured and wanted to help me, when he found out that I had no family or home he took me to hospital and paid my costs. At the hospital I had my wound dressed and looked after, I did not stay in hospital and went back to sleep on the streets. It took me two or three weeks for my wound to heal and for me to feel better. I was able to walk with the help of a stick. I could not play football at all for three weeks, it took more time before I could play soccer like before. After my injury I could not work. Other children on the streets would sometimes have money from work and they helped me to survive when I was injured. At first I was sleeping a lot. Then I felt better but I could not do my job, I had a stick to help me walk and would sometimes be taken to eat by people, I also went and watched the football.
13. The man who attacked me was put in prison to sober up and was then allowed to go home. Legal advisors in the suburbs tried to help us to resolve the problem rather than going to court. He was forced to pay back the person who had initially paid my medical bills; and was forced to do reconciliation. Reconciliation meant that he had to apologise to me and no further criminal charges would be followed if I accepted the apology. After he apologised I accepted it, as I did not want him to go to jail as he only did what he did because he was on drugs. I think I made this decision because I respect the name my parent's gave me.
14. When I was living on the streets my friends would sometimes take me to their homes for meals and then I would sleep on the streets. I did not find another job after my injury but I would play soccer and this helped me have to food. If we had a match or a special event coming up the coach would feed us. I would often get lunch with the other children when we were practicing. I would play soccer every day of the week in the morning, afternoons and evenings. Sometimes if a match was coming the coach would help me by buying me food to make sure that I am strong enough to play soccer.
15. Because of soccer I was very popular. A person paid a whole semester for me to go to school. This would happen on and off so sometimes I would get to go to school and other times I had no money and could not attend. When I went to school I attended [names of schools deleted: s.431(2)]. I did not always get a student card because of my difficulty in paying fees. I had a student card for [school] which is in [location], it is currently with my friend in Rwanda. In my initial application I did not mention all these schools because I did not understand that I needed to list them all.
16. The process of getting a passport and visa was difficult. It took a long time and was very expensive because the paperwork had to be processed in multiple places. It took my manager three days to travel to Ten Houses. Next he travelled to Cillire (or Sillire) and then to Sector and had to sign an application. He then went to District and had to pay another fee and sign more documents. He then had to travel to Province and fill out more paperwork and pay another fee. He went to the Department of Immigration to obtain my visa to come to Australia.
17. If you are working it is not so difficult to obtain a passport and visa but if you are unemployed it is very difficult to obtain a passport. It took my manager two weeks to make all of the applications for my passport and visa. [An NGO] paid all of the application fees and for my transport, accommodation and food in this time. We all made our applications at the same time.
18. I speak Kinyarwandan and English. In Rwanda there are multiple languages including English, French and Swahili. My family all speak Kinyarwandan. I learnt to speak English at school.
19. From 2004 until 2008 I supported myself by carrying bags for rich people for money around the city. I also supported myself by playing soccer.
20. I cannot return to Rwanda for three reasons. First I cannot return to Rwanda is because I did not return with the Team Manager from the Homeless World Cup and I think I will get in trouble if I return. I am concerned that the authorities would punish us by putting us in prison and by never allowing us to have another visa. If I finish studying I may not be able to get any jobs with the government because I did not return with my Team Manager. I think I would be treated badly for coming to Australia and trying to seek asylum and for saying bad things about Rwanda. My government would punish me for telling the truth. The second reason is because I am of the ethnic group Tutsi. This is the case even though I do not identify as Tutsi. After the genocide in 1994 we are not having the ethnic groups and all of the people in Rwanda are the same citizens. I would like it if Rwanda was free and safe so that I could identify as Tutsi and for other people to be able to identify as their ethnic groups also such as Hutu and Twa. Now, if I identify as Tutsi, I face imprisonment. At the moment no one can practice their ethnic traditions because they will be put in prison for 20 years. And third because I lied to the authorities to get a passport that says I am 18 when really I am only 17. Because I lied to the authorities about my age I could be punished and maybe imprisoned.
21. The authorities of Rwanda cannot protect me because they are the people that I fear will harm me. The Police in Rwanda cannot assist me if people try and harm me.
22. I do not have a right of entry and residence to any other country.
23. It is for these reasons I am applying for a Protection Visa to remain in Australia.
29. In a second Statutory Declaration dated [in] December 2008 the applicant stated that his correct date of birth is [date deleted: s.431(2)] 1991:

I, [name] of [address] in the State of Victoria, unemployed, do solemnly and sincerely declare as follows:

1. I make this Statutory Declaration in support of my Application for a Protection Visa with the Department of Immigration and Citizenship.
2. The application forms (Form 866B, 866C and 956) I lodged on the [date] of December 2008 with the department all contain my birth date as it appears on my passport, that is [date] 1990. My real date of birth is [date] 1991.
3. I did not fill in the forms to apply for a passport. I do not remember signing a passport application, although I signed other papers. I am a street boy and my job is to play soccer. I did not even know which country I was going to. I only found this out at the airport, before that we thought we were going to Kenya.
4. The soccer team manager [name] went to all the relevant places to obtain a passport. [Name] was the President of [NGO], who paid for our application. The only thing I provided him with was a passport sized photograph. The coach told me that it would have been a problem for him if I was under 18 because I would not get a passport. I saw the coach change my birth date as I was providing him with information about my details.
5. The only identity document I have had was a school card, but I lost this earlier and did not provide it to the coach. The way I know my date of birth is only because my brother and sister have told me. I have no document that says my date of birth.
6. In Rwanda, if you are 18 years old you can obtain an identity card. I could not obtain one because I was too young. In Rwanda you need an identity card to get a passport. I have never had an identity card so I do not know how I got the passport without the identity number from the identity card.
7. My true birth date is [date] 1991. I am currently 17 years of age.
8. In Rwanda you must be 18 years of age to receive a visa to leave the country. I wanted to attend the Homeless World Cup in Australia.
30. The Departmental file includes the following documents:
    • Completed Form 80;
    • Completed Form 1128;
    • Completed Form 48;
    • Completed Form 424C;
    • Completed Form 815;
    • Completed Form 26;
    • Completed Form 160;
    • Statement of [name and position delted: s.431(2)], Humanitarian Minors’ Program DIAC dated [in] January 2009;
    • Statement of [Person 4], Solicitor dated [in] January 2009;
    • Submission of [Person 4] in relation to applicant’s claims dated [in] February 2009;
    • Newspaper clippings in relation to overstay of Homeless World Cup players from December 2008;
    • Statutory Declaration of [name deleted: s.431(2)] dated 26 February 2009;
    • Letter from DIAC approving amendment to applicant’s date of birth dated [in] February 2009.

Delegate’s Decision

31. [In] April 2009 the visa application was refused without the applicant having been interviewed.
32. After assessing the applicant’s personal circumstances, together with his supporting statement and relevant country information, the delegate was not satisfied that the applicant was a person to whom Australia owes protection obligations.
33. In relation to the applicant’s claim that if he identifies as a Tutsi he will face imprisonment in Rwanda, the delegate found that this was not supported by available country information. There is no evidence that the Rwandan government practices ethnic favouritism or evidence that the state authorities discriminate against any particular ethnic group.
34. In relation to the applicant’s claim that he would be targeted for his political activities by the authorities, the delegate found that there was no evidence of harassment or persecution of the applicant on account of his political opinion.
35. In relation to the applicant’s sur place claim arising from the media attention received by him and the Rwandan team, the delegate found that there was no evidence of ‘failed asylum seekers’ being harmed on return to Rwanda. The delegate did not accept that failed asylum seekers constituted a particular social group for the purposes of the Convention.
36. In relation to the applicant’s claim that he faces persecution as part of a particular social group, namely street children in Rwanda, the delegate found that the applicant had attended school and played soccer and there was no evidence that he had been discriminated against and persecuted by the Rwandan authorities.
37. In relation to the applicant’s claim that he will be punished if he returns to Rwanda for providing an incorrect date of birth on his passport, the delegate found there was no evidence to support this, and even if he were to be punished this would not be serious enough to amount to persecution.
38. The delegate found that there was no evidence to indicate that the applicant would be at risk of harm for a Convention reason if he were to return to Rwanda.
39. In relation to the applicant’s claim that he is unable to avail himself of the effective protection of the State, the delegate found that the fact that when the applicant was attacked, his attacker was arrested and put in prison, demonstrated that the Rwandan government has protected the applicant against random acts of criminal violence. After considering recent country information, the delegate found that the state in Rwanda provides a reasonable standard of protection for all citizens including street children.

Review Application

40. [In] April 2009 the Tribunal received an application for review of the delegate’s decision.
41. [In] May 2009 the Tribunal wrote to the applicant inviting him to attend a proposed hearing scheduled for [date deleted: s.431(2)] June 2009.
42. [In] May 2009 the Tribunal received a response to the hearing invitation indicating that the applicant would attend the proposed hearing.
43. [In] June 2009 the Tribunal received a faxed letter from the applicant’s representative, [Person 4] attaching a submission in relation to the applicant’s claims ; a statutory declaration of [name deleted: s.431(2)] dated [in] June 2009; a copy of an email from [names deleted: s.431(2)] dated [in] May 2009; a letter from Mel Young, President, Homeless World Cup to the Kenya Homeless Street Soccer Association dated February 2009; and a letter from [name deleted: s.431(2)], Refugee Minor Program, Department of Human Services dated 9 June 2009.
    

Tribunal Hearing

44. The applicant appeared before the Tribunal [in] June 2009 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.
45. The applicant was represented in relation to the review by his registered migration agent, [Person 4].

First Hearing

46. The applicant confirmed that he was born on [date deleted: s.431(2)] 1991 in Nykivara in Uganda. He has two sisters and a brother who continue to live in Rwanda. Both he and his family are Tutsis. In 1993, when he was two years old, the applicant’s parents returned to Rwanda and he stayed in Uganda with his uncle. His parents both died in the genocide in Rwanda in 1994.
47. In 1995 or 1996, the applicant moved back to Rwanda with his uncle. The applicant went to school in Rwanda when he was 7 years old and he did six years of primary school. When the applicant was in grade six his uncle married and had a child. At this time, the applicant’s sister had completed secondary school and she received a grant from the government to attend University. His uncle decided to send the applicant and his other siblings to live with their older sister. They did not want to live with her because they knew she wouldn’t have enough money to support them and to pay for their school fees. But their uncle gave them no choice. Their sister rented a two bedroom house for them. She struggled to pay the rent and feed her siblings. She was also unable to pay for their school fees.
48. The applicant told the Tribunal that he decided that if he moved out of his sister’s house, the money that went towards feeding him could be used to pay for his brother’s and younger sister’s education. In 2004 when he was 13 years old he went to live on the streets. He earned money and supported himself by carrying luggage and shopping bags for people. He used this money to buy food. Sometimes people would let him sleep on the verandah of their house. He lived like this for four years.
49. The applicant’s brother and older sister went to University and completed degrees. His younger sister attended secondary school.
50. The applicant said that when he was 14 years old he was approached and asked to play soccer for a school team. He joined the school team and in return his school fees were covered and this allowed him to attend school. The coach also would sometimes buy him food. He was not able to go to school every day because he had to continue to work carrying luggage to earn enough money to support himself.
51. The applicant told the Tribunal that in early November 2008 he was approached by the Manager in charge of the Homeless World Cup Team, [name deleted: s.431(2)], and he invited him to join the team. He asked the applicant how old he was and he said he was 17 years old. The Manager said that he needed to be 18 years old in order to get a passport. The applicant said that he would change his date of birth so that he would be able to get a passport. They agreed that they would say that he was 18 years old.
52. The applicant said that [name deleted: s.431(2)] organised all the paperwork for him to travel, including obtaining a passport and a 459 visa.
53. The applicant was asked whether he let his siblings know that he was going overseas with the soccer team and he said that he called his older sister and told her.
54. The applicant told the Tribunal that he didn’t know to which country he would be going to play soccer. The team members were not told they were going to Australia until they were at the airport. They had thought that they were going to Kenya It was not until he saw the visa in his passport that he realised he was going to Australia.
55. The Tribunal asked how many people he travelled with to Australia He said that there were six players, two team managers and a coach. [Information deleted: s.431(2)].
56. When they arrived in Melbourne they were taken to the [hotel name deleted: s431(2)]. They were later moved to university college accommodation at Melbourne University where all the Homeless World Cup players were staying.
57. The applicant was asked how many games the team played. He said that they played between one and three games per day over the course of a week. They played 52 games and won 43 of these. The Rwandan team was ranked fourth in their group and they were awarded the World Community Cup.
58. The applicant said that their final game was played on 7 December 2008 He said that after the game, they met a woman from the Asylum Seeker Resource Centre (ASRC) named [Person 5]. Someone was holding a poster which said “Tsinda Rwanda” (“Win Rwanda”). The players went over to this person and [Person 5] came up and spoke to one of the players, [Person 6], in French. She said, “I know the history of your country. If you want to stay here I will help you.”
59. The applicant told the Tribunal that [Person 5] gave them the contact number and address for the ASRC and asked them where they were staying. They told her they were staying at the [Hotel] until they were to leave the country.
60. The applicant said that three of the players went to the ASRC [in] December 2008 but they didn’t go into the office. [Person 6] rang [Person 5] and said that they had found the centre but that they were worried about how they would get away from the Hotel with their luggage.
61. That evening, the team coach, [name deleted: s.431(2)], disappeared. Following his disappearance, the team Managers didn’t allow the players to leave the Hotel.
62. The applicant said that they worked out a way to escape from the Hotel by exiting through the car park. [Person 6] called [Person 5] and arranged for her to come and collect them. They only took a few items of clothing – enough to start a new life. [Person 5] came to the Hotel in her car at about 2pm and collected the applicant and [Person 6] and took them to the ASRC office.
63. The applicant told the Tribunal that after [Person 5] dropped them off at the office she went back to the Hotel and collected the other players: [names deleted: s.431(2)].
64. The applicant was asked whether they were interviewed by anyone at the ASRC. He said that [Person 5] talked to them about what the ASRC does and introduced them to people in the office. The applicant said that [Person 5] “knew about our country’s history” and that “she was going to show us how we could get to live in this country.” She asked them if they were homeless. She said she was not in a position to grant them a visa but that she would “show them the way to go about it.” She introduced them to a lawyer, [Person 4], and the legal team helped them to make their Statutory Declarations.
65. After one hour she took them to [address deleted: s.431(2)] They were given money and were registered with the Red Cross.
66. The Tribunal asked the applicant what was going through his mind at this time. He said that he was thinking that even if he didn’t find anywhere to live in Australia, it would be better than being homeless in Rwanda.
67. The applicant was asked why he didn’t want to return to Rwanda He said that because he changed his age for the purposes of getting a passport he is worried that he could be punished for this if he goes home. He said that being homeless in his country forced him to “look for a better way of living” In addition, he said that he likes Australia and thinks “it is a country that can help me to change my life.” He said that these were the three things that made him want to leave Rwanda.
68. The applicant was asked how he thought he would be punished for lying about his age. He said that he knew of people who went to play soccer in Germany and stayed there. The Rwandan authorities went to find them and they were taken back and sent to prison for seven years. They cannot be employed nor can they obtain a passport. He said that this occurred nine years ago. He heard about it on the radio and television.
69. The Tribunal asked the applicant how he explained his concerns about his safety to the lawyers at the ASRC. He said he told them about the inter-ethnic wars in Rwanda and about how most people (about 40%) are homeless or living in sub-standard accommodation. The Tribunal noted that his siblings are not homeless and the applicant said that they were studying and there were not many people who were at this level.
70. The Tribunal asked how the inter-ethnic violence has impacted on him. He said that it took the lives of his parents and that some of his friends had been affected too. The Tribunal asked if he had ever been threatened or harmed for reason of his ethnicity and he said that he had not. He said there were other people who had parents of different ethnicity who were “succumbing” to this conflict.
71. The Tribunal noted that he had said in his Statutory Declaration that on one occasion when he was living on the streets he was attacked by a drunken man. He said he was sleeping on a verandah and two drunk people were fighting near him. He said that he approached them to talk to them and one of them ran away. The other one wanted to fight and he came toward the applicant and he ran away. As he was running away, the drunk man hit him with a metal stick. The Tribunal asked whether this was a random attack. The applicant said that it was. He went to hospital for three weeks because he was bruised and needed stitches. The matter went to court, but the applicant asked that the attacker only be required to pay the costs that he had incurred. The Tribunal asked whether this was in any way a racially motivated attack. He said that he could not say that it was.
    

Second Hearing

72. [In] June 2009 the applicant attended a resumed hearing of the Tribunal and was represented by his registered migration agent, [Person 4]. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.
73. The applicant’s representative tendered a Statutory Declaration of [Person 5], [position deleted: s.431(2)] at the Asylum Seeker Resource Centre dated [in] June 2009.
74. The applicant said that he went to hospital following the attack by the drunken man (as referred to during the first hearing) but he was not admitted. For three weeks he couldn’t work or play soccer.
75. The applicant was asked again whether he thought that the attack was racially or ethnically based or whether it was random. He said he didn’t know. He was asked whether there were any other occasions when he had been attacked. He said that this was the only time but he saw it happen to other people. He was asked about what he had seen. He said that people whose relatives were in gaol because of the genocide would sometimes take revenge against those they thought were responsible for their relatives being in gaol.
76. He told the Tribunal that he had a Tutsi friend who he believes was poisoned by the children of deceased parents from another ethnic group. The Tribunal asked whether this made him fearful for his own safety. He said that he became scared and changed from the government school he was attending to a private school.
77. The Tribunal noted that the applicant’s representative has submitted that he has been persecuted in the past as a member of a particular social group, namely homeless Rwandan orphans or homeless Rwandan young men. It asked the applicant to outline how he had been persecuted in the past as a member of this particular social group. He said that everything that happened in the past in Rwanda is kept a secret and this is why he is afraid to go back. He stated his ethnicity (Tutsi) in his statement and this is not permitted in Rwanda He is concerned that there may be another conflict in the future and he doesn’t want to see this happen again. He said that because he has refused to return, the Government will see him as someone who has said negative things about it overseas. Also, he lied about his age and he believes he will be punished.
78. The Tribunal asked the applicant to elaborate on how his playing soccer has impacted on his life. He said that it gave him the opportunity to return to school after he began to live on the streets because he was able to attend school and not pay fees. The Principal of the school waived his school fees because he played for the school soccer team. He told the Tribunal that he was able to attend school from 2005 to mid-2008. He attended three different schools during this period. He couldn’t go to school every day because he had to work and earn money to survive. On average he would attend about two or three days a week. It was difficult for him to sit all the required tests but he did pass his subjects. He studied languages, maths and biology. He completed up to year 3 at secondary school. The Tribunal asked whether he would’ve finished school if he’d stayed in Rwanda. He said he would not have continued because in the higher years (years 4-6) students are required to specialise in subjects and he does not have the requisite knowledge to do this.
79. The applicant told the Tribunal that he did not really pay attention at school because he knew that his survival was dependent on playing soccer. His dream is to become a paid professional soccer player. He said that he is concerned that if he returns to Rwanda he would not be able to play for a government (national) team because he would not be issued with a passport to travel because of the fact that he did not return to Rwanda after the Homeless World Cup.

COUNTRY INFORMATION

80. In addition to the country information submitted by the applicant through his representative, the Tribunal has had regard to other country information that relates to the applicant’s circumstances and claims.

Ethnicity

81. There is extensive independent country information before the Tribunal in respect to the post genocide situation in Rwanda regarding Hutu and Tutsi ethnicity and indicating that the Rwandan Government has moved strongly under the Rwandan Patriotic Front government to expunge the discourse of ethnicity and race from Rwandan politics;
    

Inside Rwanda today, the only officially sanctioned categories of social and political identification, used in legal and administrative documents and in public discourse, are derived from the official reading of the genocide and related refugee movements. The main categories are: (1) survivors; (2) old caseload returnees; (3) new caseload returnees; (4) suspected genocidaires. In practice these overlap, especially (3) and (4). Debates on how many Rwandans fit into these various categories are covered in the next section. A tiny minority of the population (1%) are Twa and could fit into any and all of these categories, or none at all. They remain a largely invisible minority in Rwanda, although many were also killed during the genocide (Hintjens, Helen 2008, ‘Post-genocide identity politics in Rwanda’, Ethnicities, Volume 8, No. 1, p. 14 http://etn.sagepub.com/ - Accessed 12 June 2009.

82. From the time the new government took power in 1994, it has implemented policies and laws to support this aim, including the creation of the National Unity and Reconciliation Commission in 1994 and the 2001 ‘Instituting Punishment for Offences of Discrimination and Sectarianism’ law. In the preamble to the latter it is stated that:

...

Considering that in the history of Rwanda, certain political leaders used discrimination so as to find a way of favouring certain people while being unjust to others;

Considering that since regaining its independence, on 1st` July 1962 up to the setting up of the Government of National Unity on July 19, 1994, Rwanda has been ruled by political regimes characterized by discrimination and sowing of divisions among Rwandans;

Given that no one has ever been prosecuted and punished for sowing divisions and discrimination among citizens, but this practice was instead encouraged until it was abused by those who prepared and perpetrated the genocide and massacres, which befell the country in 1994 ;
...

Realizing the necessity to enact a law to punish anyone found guilty of fuelling conflicts among Rwandans and sowing divisions among them...

83. The law forbids discrimination on the basis of ‘ethnicity, region or country of origin, the colour of the skin, physical features, sex, language, religion or ideas aimed at depriving a person or group of persons of their rights...’ Sectarianism is also punishable ‘when the author makes use of any speech, written statement or action that causes conflict that causes an uprising that may degenerate into strife among people’ (Official Gazette of the Republic of Rwanda 2001, ‘Law No. 47/2001of 18/12/2001 Instituting Punishment for Offences of Discrimination and Sectarianism’, 18 December, pp. 1, 2, http://www.grandslacs.net/html/new/092006.html - Accessed 12 June 2009.
84. Other practices introduced since 1994 have included various training camps, the Gacaca court system and other ‘citizenship-building’ processes:
    

Solidarity camps (or ingando) are a form of re-education camp introduced by the post-genocide government, and have received surprisingly little attention in the literature. Such camps preach a secular form of nationalism, teaching practical skills at the same time. The participants are expected to obey rules and agree on who should cook, wash, clean and so on. More than one researcher’s accounts of such workshops run in early 2003 noted the emphasis on self-discipline, on sharing responsibilities and solving practical problems through cooperation, but also the superficiality of the exercise, which amounted to denial of continuing tensions at local level. Another goal is to transmit a ‘correct’ version of Rwandan history to the participants. Belgian colonial rule is blamed for infecting Rwandans’ minds with the virus of race theory; political commissars from the Unity and Reconciliation Commission run the solidarity camps, and see it as their job to instill a sense of shared citizenship among Rwandans. Participants are housed in simple tents, classrooms and community halls, supposed to facilitate a sense of interchange, equal status and shared public space.

There are solidarity camps for the youth, for military and for ex-prisoners. All former FAR [Armed Forces of Rwanda] are taken through solidarity camps in preparation for reintegration into the mainstream Rwandan army. Former prisoners suspected of genocide crimes (usually lesser crimes) remain in the camps for up to three months, in preparation for reintegration into their home communities (Hintjens, Helen M. and Kiwuwa, David E. 2006, ‘Not Ethnicity, but Race: Unity and Conflict in Rwanda Since the Genocide’ in Saha, Santosh C (ed.), Perspectives on Contemporary Ethnic Conflict, Lexington Books, Lanham, Maryland, pp 90-91.

85. Current and proposed activities of the National Unity and Reconciliation Commission (NURC) were described in more detail in a news report on the launch of its four year strategic plan 2009-2012 (‘Challenges remain to achieve unity and reconciliation’ 2009, All Africa [source: Focus Media], 2 April.
86. New forums for the exchange of views between various non-governmental organisations that provide reconciliation programs were recently announced by the NURC:

According to NURC, the development comes at a time when Rwanda is still struggling to unite all its nationals. This is therefore expected to go a long way in creating a substantial impact in line with the country's policy of promoting unity and reconciliation.

"Such forums will help adopt substantial peace strategies and will help to bring together Rwandans while uprooting the widespread Genocide ideology," Fatuma Ndangiza, the Executive Secretary of the NURC said at the function that took place in Kigali.

She admitted that despite the tremendous achievements registered fifteen years after the 1994 Genocide against the Tutsi, ethnic discrimination, bad parenthood and poor child upbringing was still a major challenge.

Ndangiza called for strict action against careless parents and advised that gender based violence which is also still a threat should not be taken lightly (‘NURC urges NGOs on reconciliation’ 2009, All Africa [source: The New Times], 8 June.

87. A range of views as to the ongoing relevance of ethnicity in Rwandan life can be found:
    

In an empirical study involving interviews with 40 Rwandans Eugenia Zorbas noted some acceptance of the government line that there was no ethnic conflict prior to colonization, but nor could it be completely disregarded;

And yet, for my respondents, accepting this view did not mean that ethnicity was irrelevant in contemporary Rwanda. My respondents spoke of their own and their neighbours’ ethnicity and continued to explain some (though not all) behaviours and attitudes with reference to ethnic identity. The RPF proscription of ethnicity was not, therefore, respected:

Even though the Hutu/Tutsi question is not relevant to daily life, historically it was the Tutsi that were in power and the Hutu that became rich were assimilated to the Tutsi. Also, Tutsi who had modest means were closer to the Hutu, intermarried, and gave them cows—not for patronage but out of friendship. (Bunzazi, prisoner)

Before 1959, the Tutsi had all the good fields and the livestock, which provide fertilizers. (Bunzazi, “neutral”)

Despite these references to ethnicity, the consensus among my respondents was that Rwandans (mostly) lived in unity “as brothers,” but that there were differences, although these were not necessarily contradictory. Such a position is likewise, not straightforwardly contrary to the RPF’s position. For example, in an interview in 2000, Paul Kagame stated:

The issue is about being Rwandese, not being a Hutu or a Tutsi. In Rwanda there are three ethnic groups: the Batwa, the Bahutu and the Batutsi. They should all have equal rights. We don’t treat any of those as secondary citizens. [. . .] So the conclusion generally being made today is that Rwandese should have a democracy but they should associate along national, political and rational issues rather than looking at themselves as belonging to an ethnic group. I think this is taking root.

The RPF’s attempt at promoting a national identity was therefore acknowledged as a commendable aspiration (Zorbas, Eugenia 2009, ‘What does reconciliation after genocide mean? Public transcripts and hidden transcripts in post-genocide Rwanda’, Journal of Genocide Research, Volume 11, No. 1, pp. 141-142, http://www.tandf.co.uk/journals/titles/14623528.asp - Accessed 12 June 2009.

Failed Asylum Seekers

88. The March 2009 UK Home Office Operational Guidance Note does not refer to any specific difficulties known to be associated with failed asylum seekers (UK Home Office 2009, Operational Guidance Note – Rwanda, 9 March, pp, 10-11).
89. The most recent information sourced is in a report of a joint UK-Danish fact-finding mission to Rwanda in 2002. The Chief Security Officer of the Rwanda Airport Authorities, Captain Rogers Rutikanga, was consulted:
    

227. In the event of a Rwandan having a supervised return to the country or returning to the country without the appropriate travel documentation Ruitikanga stated that additional questions would be asked. Firstly, the authorities would wish to satisfy themselves that the returning individual is not wanted for suspected involvement in the genocide or any other crime. The individual would also be questioned about how they had left the country and the documentation they had used to depart. If they admit that they used forged documents to depart the above mentioned source explained that the individual would be deemed to have committed an offence and could expect to be taken to court.

90. According to the Secretary-General of the Ministry of Internal Affairs and the Airport Security Officer, a failed asylum seeker would not be treated differently to a person who had been away for a prolonged period:
    

237. Nsenga advised that the Ministry of Local Affairs is responsible for the reception of failed asylum seekers that are being returned or are returning to Rwanda He emphasized the fact that where a Rwandan citizen has applied for asylum abroad and by this may have discredited the Rwandan Government, this would not affect such a person’s situation upon his return to Rwanda.

238. Rutikanga stated that even if the authorities are aware that a returning individual has claimed asylum whilst outside Rwanda this will not result in them being treated any differently to others returning to the country after a prolonged period. He acknowledged that for some, the motivation for seeking asylum overseas is purely economic. He confirmed that innocent Rwandans who went abroad to “chance their luck” would be treated no differently to nationals who had been abroad for work or study. He added that those who departed illegally or have other cases to answer will answer the cases and then be integrated into society.

91. Research undertaken by the Tribunal included searches of Australian media sources including The Australian, the Sydney Morning Herald, The Age, the Herald Sun, the West Australian and SBS. A search of international news media included SW Radio Africa which reported on the asylum claims in Australia of the Zimbabwean Homeless World Cup team (reported on 10 December 2008 – http://allafrica.com/stories/2008121000909.html - Accessed 11 June 2009. On 13 December 2008 the Zimbabwean Standard reported that the Zimbabwean and Afghani players had applied for asylum – http://allafrica.com/stories/200812150576.html – Accessed 11 June 2009. An archive search of the only daily newspaper in Rwanda, the New Times (http://www.newtimes.co.rw/) found no articles or references referring to the Homeless World Cup in 2008 or any subsequent events relating to it.

Homeless Young Rwandan Men

92. There is extensive country information which indicates that the situation for homeless young people in Rwanda is dire. According to UNICEF, “there are at least 2.8 million vulnerable children in the country.” Integrated Regional Information Networks (IRIN), Rwanda: Vulnerable children living on the margins, 3 September 2008, available at: http://www.unhcr.org/refworld/docid/48ce1d5ac.html [accessed 7 December 2009].
93. Country information indicates that the Rwandan government has not taken steps to protect children who were orphaned by the genocide. In 2003 Human Rights Watch released a comprehensive report, Lasting Wounds, detailing the situation faced by Rwandan street children and orphans. The report noted:

Perhaps the most devastating legacy of the genocide and war is the sheer number of children left on their own, and the government's failure to protect them from abuse and exploitation.On Rwanda's green hills, up to 400,000 children-10 percent of Rwandan children-struggle to survive without one or both parents. Children who were orphaned in the genocide or in war, children orphaned by AIDS, and children whose parents are in prison on charges of genocide, alike, are in desperate need of protection. Many Rwandans have exhibited enormous generosity in caring for orphans or other needy children.Yet, because so many Rwandans are living in difficult circumstances themselves, to some, vulnerable children are worth only their labor and their property. Foster families have taken needy children in, but some have also exploited them as domestic servants, denied them education, and unscrupulously taken over their family's land.Government officials have done little to protect these children's rights, instead trusting that extended families will care for them. But traditional societal networks have been severely eroded by poverty, the HIV/AIDS epidemic, and, not least, the consequences of the genocide and war.

Thousands of children-many of whom had been exploited for their labor or their property and denied the right to education at home-have migrated to city streets to fend for themselves.There, they face a near constant risk of harassment by law enforcement officials and arbitrary arrest.Municipal authorities continue to round children up by force in an effort to "clean the streets," despite promises to direct their efforts at protecting the children without violating their rights.Girls living on the streets are frequently raped, sometimes even by law enforcement officials, yet few of those responsible have been prosecuted.

The international community has provided billions of dollars to assist in the reconstruction and rehabilitation of Rwanda and continues to donate tens of millions of dollars each year.Yet inadequate resources have been devoted to address the desperate needs of child protection.Donors have failed to ensure that money earmarked for speedy trial of those accused of genocide as children, for example, is actually used for that purpose.Likewise, donors have failed to ensure that funds allocated to pay school tuition for orphans are distributed fairly.In addition, the donors have repeatedly failed to denounce blatant human rights violations such as forcible roundups and beatings of street children, and failed to use their leverage to stop such violations.

This report-based on hundreds of interviews conducted between 1995 and 2002 with children, child rights experts, social workers, representatives and staff of local and international organizations, the United Nations Children's Fund (UNICEF), and officials of the Rwandan government-documents widespread violations of the rights of the child in post-genocide Rwanda.The majority of Rwandan children have been victims of armed conflict.Thousands have been arbitrarily arrested and denied prompt access to justice.Hundreds of thousands more living around the country have been abused, exploited for their labor, exploited for their property, or denied the right to education.Thousands have migrated to city streets in an effort to escape these abuses only to find themselves vulnerable to harassment by Rwandan law enforcement agents.

The Rwandan government can and must do more to protect their rights.The government claims to have embraced international standards and has put a partial legal framework for child protection in place.But laws are not enough without adequate enforcement mechanisms.Eight years of promises to protect their rights has meant little for children in practice.The government should take concrete measures to establish a system of juvenile justice in accordance with international standards.Officials at all levels must use their power to put a stop to the abuse and exploitation of children on the hills and on city streets.The future of Rwanda depends on it.

94. The Report goes on to detail the difficulties which exist for children who are forced to live on the streets and the mistreatment they are frequently subjected to by the authorities, including the police:

A minority of street children actually sleep on the streets, sometimes in doorways, in bins full of charcoal for sale, or even in open air covered with cardboard boxes.Most others find places to spend the night-with night guards, with families who use them as domestic servants for little or no pay, or with adults who give them a place to sleep on the condition that they bring home money or food each day.Louise N., who went to the streets at age thirteen, considered herself lucky when an old woman agreed to let her spend the night at her house in the Kimisagara neighborhood of Kigali.But if Louise N. failed to earn enough money carrying packages in the market, the woman would throw her out at night.Louise N. explained that life is especially difficult for girls who need to find a place to sleep."It is dangerous to sleep just anywhere," she said.

A 2002 survey by Johns Hopkins University on sexual activity among street children underscored that street children are extremely vulnerable to sexual abuse and sexually transmitted diseases.More than half of the boys interviewed and more than three quarters of the girls, including 35 percent of those under ten, admitted they were sexually active.Sixty-three percent of the boys said they had forced a girl to have sex with them.Ninety-three percent of the girls reported having been raped.One third of the boys and 8 percent of the girls knew how to get a condom, but only a handful reported using condoms all or most of the time over the past year.They averaged between two and three sexual partners during the previous six months.Most knew something about HIV/AIDS, but little about other sexually transmitted diseases.Ninety-eight percent of the girls and 72 percent of the boys said they knew someone living with HIV or who had died of AIDS.Two thirds of those interviewed had never attended school.

...

The services street children perform are an important part of the informal economy.For example, urban dwellers who otherwise frown on the children regularly pay them to carry their purchases at the market or to guard their cars in downtown neighborhoods.The children also collect garbage and engage in small-scale sales of cigarettes, candy, hard-boiled eggs, peanuts, etc.Employers frequently use the children for hazardous labor for little pay.In Butare, social workers lament that the children are used as to arrange liaisons between local men and prostitutes in exchange for a small commission. Their "employment" can be very precarious if a child falls sick or a policeman confiscates her goods for sale, she has nothing to fall back on.Benjamin U. considered himself lucky when a woman agreed to take him in as an unpaid domestic servant.When he began a training program in mechanics for several hours a day, though, she threw him out and he was left to live on the streets again.

...

Police Violence

Police officers and members of the Local Defense Force generally appear to maintain an adversarial relationship with the street children.Francis R., nineteen when he spoke to Human Rights Watch, had been on the streets since the war.When asked about his relations with law enforcement agents he replied, "I tell you, we are considered street trash.Everyone sees that.So the [officers] don't speak to us." And the children, in turn, see law enforcement officers as predators likely to beat them, confiscate their goods, or forcibly take them away.It was sadly not surprising for passersby in 2000 to witness a member of the Local Defense Force, apparently unprovoked, pick up a child and repeatedly knee him.One of the witnesses told Human Rights Watch he saw the member of the Local Defense Force then throw the child on the ground and walk away while the boy cried in pain.

Angry citizens, too, have at times felt empowered to take the law into their own hands, apprehending and beating children they suspect of stealing.In Butare a merchant beat a boy to death in late December 2000.He suspected the boy of having stolen.The murderer was reportedly arrested. An RPA soldier shot a street child to death in a crowded Gisenyi market in June 2000 after the teen had allegedly knocked over a table of tomatoes belonging to the soldier's wife.Witnesses said that other street children, angry over the murder, began throwing stones.Local police then arrested seventeen children in order to restore order and detained them overnight in the Gisenyi police station.When a Human Rights Watch researcher went to the Gisenyi police station the next morning, the commander on duty said that the soldier had been arrested and that the seventeen children would be freed later that day.

Sixteen-year-old James D. from Kibungo complained to Human Rights Watch researchers that he felt terrorized by members of the Local Defense Force and older street children alike who frequently beat him.But he said he had no one to turn to, nowhere to go to complain. One foreign aid worker said that efforts were underway to provide training for the national police to try to improve their capacity to protect children's rights.But he was dismayed that the police had consistently refused to provide the international community with any information, making it difficult to monitor children's rights. Ways must be sought to address the hostility that exists between street children and law enforcement agents-police should treat the children as children, and the children should be taught-and shown by police practice-that the police are there to protect all citizens, including them.

Cleaning the Streets

The Rwandan government began the latest in a series of forcible roundups of street children in June 2002.As of November, members of the Local Defense Force, on the order of the Ministry of Local Government, continued to round children up using violence and against the children's will.Most of the children have been brought to Gitagata, where aid workers have expressed alarm over their conditions.In August, Gitagata was housing twice its capacity of 500 children.Urgent protection needs at Gitagata include an acute shortage of clean water, failure to register or document the children, prevalence of physical and sexual violence, presence of security forces in the camp, and lack of structured programming for the children.When a Human Rights Watch researcher visited Gitagata in September, a couple had come from Kigali to look for their son who disappeared from the market six weeks earlier; the camp administrator refused to release the boy without a letter from their sector counselor in Kigali.Large numbers of children have attempted to escape, including one who was shot by a member of the Local Defense Force and others who have been detained at the nearby Nyamata jail.Some returned to Kigali only to be rounded up again and sent back to GitagataAs of November, the government had yet to articulate an overall plan for a solution to the problem.

The last time the government had attempted to "clean" city streets was one year earlier.On June 19, 2001, the mayor of Kigali started to implement a plan to systematically round Kigali's street children up, in an attempt to rid the streets of street children, ostensibly once and for all.Over the following weeks, local authorities arrested some 1,300 street children. In the face of mounting criticism from the international community in Kigali, the city transferred most of the children to nongovernmental rehabilitation centers after detaining them for days or weeks in city jails.Many escaped and returned to the streets as soon as they thought the streets were safe.

The vice mayor charged with youth affairs explained to Human Rights Watch that the Executive Committee of Kigali City met in May 2001 and decided to deal with the problem of street children by any means necessary.He said city authorities believed they had acquired the sole and unlimited authority to do so under the recent program of decentralization.The vice mayor said Kigali would be pleased if the prefects and national government chose to collaborate in this effort, but would continue whether they liked it or not.

...

Over the course of several weeks, members of the Local Defense Force in Kigali, acting on instructions from the Kigali Mayor, systematically rounded up children by force and took them to local police stations and other Kigali jails.Not surprisingly, children resisted the roundups, which in turn resulted in the use of physical force, including beatings by their captors.Some of the roundups were conducted in broad daylight, in full view of Kigali residents.Several witnesses said they saw children riding in pickup trucks, with members of the Local Defense Force holding them at gunpoint. Other children were made to walk to detention centers when rounded up.A thirteen-year-old boy told Human Rights Watch that members of the Local Defense Force woke him up in the abandoned car where he normally slept in Nyamirambo.Then they tied him together with an estimated fifty-five other children using T-shirts or cloth to bind their arms to one another and walked across town in a long line to the Muhima police station.He said that members of the Local Defense Force, some of whom were armed, escorted the children to Muhima, hitting them and threatening them lest they dare try to escape.

One night at midnight, about a week after the roundups started, members of the Local Defense Force found two sleeping children who had escaped the initial roundups.The boys told a Human Rights Watch researcher that the law enforcement officers threw them into a truck filled with rotten food and maggots up to their ankles and transported them to a district office, where they spent the night in the lockup.At the district office, members of the Local Defense Force beat them. The next day they were transported to the Muhima station.

...

In some cases, the Local Defense Force rounded up all the children who looked to them like street children, including some children living with their families.One young boy from Gikondo neighborhood in Kigali said he went to the market at 8 a.m. to buy groceries for his mother and, the next thing he knew, a member of the Local Defense Force grabbed him and took him to a lockup and, a few days later, to a rehabilitation center.At the rehabilitation center, he said he missed his parents and was worried that they had no idea where he could be.

During the June roundups in Kigali, most of the children were initially taken to the police station at MuhimaThere, several hundred were held at a time for periods ranging from one day to a week.The vice mayor said that the children were not accused of any crime. A Human Rights Watch researcher interviewed social workers and three children randomly selected from a group of 111 children who had arrived at a rehabilitation center two days before, and all reported ill-treatment at MuhimaThey said police only provided food once every two to three days.Police also apparently tormented the children by beating them when they went to approach the source of water to take a drink.Some slept on the floor of the overcrowded lockup, while others reportedly spent the night outdoors.One thirteen-year-old boy said that police beat him with a rifle butt, injuring his ankle.He said it was swollen for three days, but had started to heal. Another, aged twelve, told Human Rights Watch that police used sticks to beat the children on the back of their thighs."They mostly beat those who tried to escape," he said."But they refused us water [at the police station].We didn't drink for a while.When we went to get water to drink, they beat us." Yet another, also twelve years old, said that police threw stones at the children at the police station, hitting one boy on the head and another in the eye. Human Rights Watch did not receive any reports of children who incurred serious injuries in police custody.

National Police denied that the children were beaten while in police custody.When confronted with cases in which children had been beaten during roundups and at Muhima, DamasGatare, in charge of human rights and community policing for the National Police, told Human Rights Watch that the police are not responsible for acts committed by members of the Local Defense Force. The vice mayor said that Kigali City, which supervises the Local Defense Force and ordered the roundups, did not discipline any members of the force for beating children.

The vice mayor told Human Rights Watch that the goal of the roundups was not to violate the children's rights but rather to protect children by removing them from the dangers of life on the streets. After brief periods in detention, authorities did, in fact, send children who were native of Kigali to existing centers that provide programs for street children, most to Project Rafiki in Butamwa district.When a Human Rights Watch researcher visited them at Butamwa, the children had food to eat, new clothes, and a place to sleep. The children all appeared visibly sad and distracted. Two weeks later, though, once the international spotlight had faded, social workers complained that Project Rafiki ran out of funds and was barely able to buy enough food for the children.

UNICEF was reluctant to support the government's efforts to care for children who had been rounded up forcibly on the grounds that such roundups violated the prohibition against arbitrary detention under the Convention on the Rights of the Child. While acknowledging that children are generally better off in centers than on the street, UNICEF did not want to reward the city for the means it had used.Instead, along with local and international NGOs, UNICEF attempted to hold a dialogue with the Ministry of Local Government and city authorities to develop a plan to help children leave the streets without violating their rights.At a meeting in Kigali on July 26, all participants-including representatives of Kigali City, the Ministry of Local Government, provincial governments, UNICEF, and NGOs-agreed to a plan of action and an end to forcible roundups.One of the drafters of the plan of action said the participants were dismayed when city authorities continued to round children up in the days following the meeting.

Earlier Roundups

The government has repeatedly attempted to use roundups to address the growing problem of street children since 1997.All of the roundups were conducted in violation of the Convention on the Rights of the Child insofar as they amounted to arbitrary arrest and detention. It seems that the only aspect to have been thought through was police action to round the children up.Officials have placed insufficient emphasis on providing the children with rehabilitation or addressing the root causes why they turn to the streets in the first place. The repeated roundups have failed to reduce the number of children living on city streets or to improve the children's well being.

95. In 2006 Human Rights Watch reported that Rwandan street children were illegally detained after a campaign to clean up the streets:

Swept Away - Street Children Illegally Detained in Kigali, Rwanda

The authorities of Kigali, the capital of Rwanda, work hard to present the city in the best possible light, knowing that many international visitors see little beyond the city limits. As part of this effort, in 1997 the authorities began to regularly sweep the city to clear streets and public spaces of what they regard as undesirable persons, such as street children, beggars, street vendors and sex workers. In the early years street children were sent to reception centers far from the capital, but for at least the last year children have been held at an unofficial detention center located in a neighborhood of Kigali called Gikondo. Although only a short distance from the luxury hotels that cater to international visitors, the center, like the children and other persons it confines, is not seen by foreign guests.

Held at the Gikondo center in overcrowded buildings, the hundreds of detainees suffer from lack of adequate food, water, and medical care. Children are subject to abuse from adults detained in the same buildings. Police officers claimed that detainees should spend no more than three days at the center, but some, including children, have been held there for weeks or months. One thirteen-year-old boy died there on April 16, 2006, suffering from severe malnutrition; on the same day a young woman detainee, also reportedly malnourished, suffered a miscarriage and was hospitalized.

Authorities hold the detainees as "vagrants" under colonial-era regulations but rarely charge them formally, bring them to court, or afford them the due process rights guaranteed under the Rwandan constitution and international conventions by which Rwanda is bound.

The detention in particular of children in miserable conditions violates provisions of the United Nations Convention on the Rights of the Child and the African Charter on the Rights and the Welfare of the Child, to which Rwanda is a party, as well as the Rwandan law on the Rights and Protection of the Child Against Violence.

In 2003 the Rwandan government adopted a National Policy for Orphans and Other Vulnerable Children, which includes a section on street children. Under this policy, Rwandan authorities undertook to consult with all stakeholders on relevant issues, but they have not raised the existence of the Gikondo detention center with such important partners as the United Nations Children's Fund (UNICEF). The first that one UNICEF child protection officer had heard of the existence of the center was when a Human Rights Watch researcher informed her in late April 2006

The current city administration found the Gikondo center in operation when it took office in January 2006. When asked about the Gikondo center, a vice-mayor of Kigali told a Human Rights Watch researcher that the city intended to close the facility. City authorities should act immediately upon this intention and should ensure that, pending closure and afterwards, detainees receive needed legal, social, and medical assistance.

(Human Rights Watch, Swept Away - Street Children Illegally Detained in Kigali, Rwanda, 14 May 2006, available at: http://www.unhcr.org/refworld/docid/44c764f84.html - accessed 7 December 2009).

FINDINGS AND REASONS

96. The applicant travelled to Australia on a valid Rwandan passport and states that he is a national of Rwanda. He has provided evidence of his background in Rwanda. The Tribunal finds that he is a national of Rwanda and therefore for the purposes of the Refugees Convention the Tribunal has assessed his claims against Rwanda as his country of nationality.
97. The Tribunal observes that the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that he satisfies all of the required statutory elements. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA [1992] FCA 470; (1992) 38 FCR 191, Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169 70.)
98. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he has made. This may involve an assessment of the applicant’s credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
99. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality (See Randhawa v MILGEA [1994] FCA 1253; (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor [1994] FCA 1105; (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA [1998] FCA 1126; (1998) 86 FCR 547). On the other hand, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true (See MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220).

Assessment of Claims

100. The Tribunal found the applicant to be a credible witness, whose accounts of past events has been detailed and consistent, and in conformity with the independent evidence sourced by the Tribunal. His accounts of the circumstances leading to his departure from Rwanda, and the reasons for which he does not want to return were consistent with that presented in his statutory declarations in support of his protection visa application.
101. The Tribunal has considered the applicant’s claims to fear persecution for reason of his Tutsi ethnicity, his imputed anti-government political opinion and his membership of the particular social groups of ‘high profile failed asylum-seekers’ and ‘homeless Rwandan young men’.

Ethnicity

102. In his Statutory Declaration submitted at the time of his protection visa application on 19 December 2008 the applicant stated at paragraph 20:

The second reason is because I am of the ethnic group Tutsi. This is the case even though I do not identify as Tutsi. After the genocide in 1994 we are not having the ethnic groups and all of the people in Rwanda are the same citizens. I would like it if Rwanda was free and safe so that I could identify as Tutsi and for other people to be able to identify as their ethnic groups also such as Hutu and Twa. Now, if I identify as Tutsi, I face imprisonment. At the moment no one can practice their ethnic traditions because they will be put in prison for 20 years.

103. Although the applicant claimed in his Statutory Declaration set out above that he wished to identify as a Tutsi, he did not mention this during his evidence at the hearing. In her written submission, the applicant’s representative did not refer to the applicant’s ethnicity as a factor contributing to his claim of a well-founded fear of persecution.
104. At the hearing, the applicant told the Tribunal that he attended primary school and three years of secondary school. The reason he was unable to regularly attend school was because his family was unable to pay the required fees. His brother and older sister went to University and completed degrees and his younger sister attended secondary school. There is no indication that the applicant or his siblings were prevented from attending school by virtue of their Tutsi ethnicity.
105. The applicant told the Tribunal at the hearing that he was the victim of a violent attack by a drunken man which caused him to be hospitalised. When asked whether this was a racially or ethnically motivated attack he was unable to confirm that it was.
106. This country information indicates that the three ethnic groups in Rwanda are treated equally and that the government has taken positive steps to eliminate ethnic discrimination. The Tribunal does not accept that the applicant has experienced harassment and/or persecution in the past on the basis of his Tutsi ethnicity from either the State or non-State actors.
107. Furthermore, based on the evidence, the Tribunal does not accept the applicant’s claims to fear persecution for reason of his ethnicity now or in the reasonably foreseeable future should he return to Rwanda.

Sur Place Claims

108. Persons who are outside their countries of origin may become refugees due to changes in circumstances in their home countries or as a result of their own actions. Thus, a well-founded fear of persecution which exists at the time of determination may not have existed at the time a person departed his or her country of nationality. Paragraphs 94, 95 and 96 of the UNCHR Handbook on Procedures and Criteria for Determining Refugee Status[1] state:
     

94. ... A person who was not a refugee when he left his country, but who becomes a refugee at a later date, is called a refugee “sur place”.

95. A person becomes a refugee “sur place” due to circumstances arising in his country of origin during his absence. Diplomats and other officials serving abroad, prisoners of war, students, migrant workers and others have applied for refugee status during their residence abroad and have been recognized as refugees.

96. A person may become a refugee “sur place” as a result of his own actions, such as associating with refugees already recognized, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.

109. The concept of refugee sur place has been recognized by Australian courts. In the Full Federal Court in Somaghi v MILGEA, Gummow J stated:
     

Article 1A (2) of the Convention, as construed in Chan, requires the decision maker, as regards an individual then outside the country of his nationality, to determine whether that person then is unwilling to avail himself or herself of the protection of the country of nationality owing to a well-founded fear of persecution which now exists for, inter alia, reasons of political opinion or membership of a particular social group. It follows that the well-founded fear of persecution which now exists may have arisen at a time when the person in question was already outside the country of nationality.

110. The applicant claims to have legitimate refugee sur place claims based on his imputed anti-government political opinion and his membership of a particular social group of ‘high profile asylum seekers’. These claims arise from the applicant’s actions in failing to return to Rwanda after competing in the Homeless World Cup in Australia and applying for protection in Australia.

Imputed political opinion

111. The applicant claims to fear persecution in Rwanda for reason of his imputed political opinion. According to the written submission of the applicant’s representative, the Rwandan government is likely to perceive the applicant’s decision to stay in Australia and seek asylum as “anti-government and therefore divisive.” According to the representative’s submission the Rwandan government has “broad powers to repress any voices that are seen as anti-government by labelling them ‘divisive’” and that the applicant “faces a real risk that the government will persecute him for not having returned to Rwanda after representing Rwanda in the Homeless World Cup.”
112. The applicant’s representative has submitted that the fact that the applicant did not return to Rwanda from Australia imputes to him an anti-government political opinion in respect to the Rwandan government.
113. In his Statutory Declaration dated [in] December 2008, the applicant stated:

I cannot return to Rwanda for three reasons. First I cannot return to Rwanda is because I did not return with the Team Manager from the Homeless World Cup and I think I will get in trouble if I return. I am concerned that the authorities would punish us by putting us in prison and by never allowing us to have another visa. If I finish studying I may not be able to get any jobs with the government because I did not return with my Team Manager. I think I would be treated badly for coming to Australia and trying to seek asylum and for saying bad things about Rwanda My government would punish me for telling the truth.

114. At the hearing, the applicant told the Tribunal that his failure to return to Rwanda would cause the Rwandan Government to “see him as someone who has said negative things about it overseas.”
115. The applicant told the Tribunal that there were three reasons why he didn’t wish to return to Rwanda: he may be punished because he changed his age for the purposes of getting a passport; being homeless in his country forced him to “look for a better way of living”; and he likes Australia and thinks “it is a country that can help me to change my life.”
116. The applicant’s motives at the time he left Rwanda do not preclude the existence of circumstances arising since his departure from that country which could give rise to a sur place claim. As well as asserting a view that the Rwandan government will see the applicant’s failure to return from the soccer tournament as imputing an anti-government political opinion to him, the applicant’s representative has provided detailed written submissions regarding the return of the Rwandan Homeless World Cup team managers to Rwanda and their circumstances since their return.
117. The test for determining well-founded fear was enunciated by the High Court in Chan v MIEA. The Court held that “well-founded fear” involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. Justice Dawson stated in Chan’s case:

The phrase ‘well-founded fear of being persecuted’... contains both a subjective and an objective requirement. There must be a state of mind - fear of being persecuted - and a basis - well-founded - for that fear.

118. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

119. The Tribunal accepts that the applicant’s failure to return to Rwanda in accordance with the conditions of his visa could impute to him an anti-government political opinion. The applicant has provided both written and oral evidence that he decided not to return to Rwanda because was concerned that the Government would “see him as someone who has said negative things about it overseas.”
120. The applicant’s representative has made detailed submissions about the circumstances of the team [officials] [names deleted: s.431(2)], who it is claimed, returned to Rwanda and have subsequently fled to Uganda and are seeking the protection of a third country.
121. In his Statutory Declaration, [name deleted: s.431(2)] attests that [team officials names deleted: s.431(2)] told him “they were deeply fearful of returning to Rwanda and neither wanted to return because they feared they were in grave danger”. They returned to Rwanda only because of [name deleted: s.431(2)]’s three children and after seeking, although not obtaining, assurances from the Rwandan authorities that they would not be punished for the Rwandan players not returning and seeking asylum in Australia.
122. It is claimed that the team [officials] were temporarily detained and questioned at the airport when they returned to Rwanda This does not of itself indicate any mistreatment of the team managers. It might be considered unsurprising or predictable that the managers of a representative soccer team returning to their country of nationality without the team would be questioned as to what had transpired. According to the applicant’s representative, the team managers subsequently left Rwanda after they were informed by an unnamed “reliable source” that they were to be arrested and charged with offences. This evidence is contained in the Statutory Declarations of [names deleted: s.431(2)] which recount information those persons have received from the team [officials] since their departure from Australia However the team [officials] have declined to be contacted or to provide any information or evidence in respect to the applicant’s claims.
123. According to the applicant’s representative, the problems encountered by the team [officials] who have a degree of ‘clout’ with the Rwandan authorities leads to the necessary conclusion that the applicant’s circumstances should he return to Rwanda will be more serious and will amount to a real chance of serious harm amounting to persecution.
124. The Tribunal does not accept the submissions of the applicant’s representative that the purported fate of the Rwandan team [officials] means that the applicant will be persecuted if he returns to Rwanda.
125. The applicant’s circumstances are not the same as the circumstances of the team [officials]. Unlike the team [officials], the applicant has, to the knowledge of the Rwandan Government, sought protection in Australia.
126. The applicant relies on a Statutory Declaration by [name and position deleted: s.431(2)] of ASRC, dated [in] February 2009 in which he attests that he was telephoned on three occasions (including twice [in] December 2008) with requests that he meet with the Honorary Consul-General for Rwanda. He claims that the Consular General wished “to meet me in person to have explained what had happened to the Rwandan Homeless Cup team and why they had sought asylum.” According to the applicant’s representative’s written submission, this indicates that the Rwandan authorities are aware the applicant and his team mates have sought asylum in Australia.
127. It is clear that the members of the Rwandan Homeless World Cup Soccer Team have likely caused the Rwandan government embarrassment. The letter from Mel Young, President, Homeless World Cup advising that the Rwandan team will not be invited to participate in the 2009 Homeless World Cup because of the asylum claims made by the members of the 2008 team would be a further embarrassment to the Rwandan government.
128. The actions of the applicant in seeking protection by Australia, so that he does not have to return to Rwanda, in the view of the Tribunal can be interpreted as a clear and unequivocal criticism of the current Rwandan government and therefore attributes to him an imputed or actual political opinion.
129. The Tribunal accepts that the actions of the applicant in seeking protection in Australia impute him with a political opinion that opposes the current regime in Rwanda.
130. The Tribunal accepts the applicant’s representative’s submission that the interest shown by the Rwandan consulate in the reasons why the applicant and his team mates have applied for asylum in Australia indicates that the Rwandan Government is aware that they have made claims for protection and that the applicant may be punished for this if he were to return to Rwanda.
131. The Tribunal accepts that if the applicant were to return to Rwanda there is a very real chance that he may be detained simply as being a member of the Rwandan Homeless World Cup Team, all of whom have applied for protection in Australia.
132. The Tribunal accepts, based on the evidence available to it, that there is credible evidence regarding the real chance of future serious harm to the applicant if he returns to Rwanda on the basis of his imputed political opinion.
133. The applicant’s claims to fear persecution for reason of his imputed political opinion arise from the same facts as his claims to fear persecution for reason of his membership of a particular social group. The claims arise from the circumstances in which the applicant decided not to return to Rwanda after participating as a member of the Rwandan team in the Homeless World Cup in Melbourne in 2008.

Membership of a particular social group

134. The applicant’s representative in her written submissions and at the hearing argued that the applicant is a member of the particular social groups comprised of “high profile failed asylum seekers” and “homeless Rwandan young men”.

High Profile Failed Asylum Seekers

135. The applicant claims that he may be persecuted in Rwanda for reason of his status as a member of the particular social group of ‘high profile failed asylum seekers’. The applicant’s representative has made detailed submissions in this respect, which include references to the media attention given to the applicant and his team about their claims for asylum in Australia and the circumstances surrounding the return to Rwanda of the team [officials] [names deleted: s.431(2)].
136. The leading recent Australian authority on the term ‘particular social group’ is Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 (‘Applicant S’). McHugh J in Applicant S v MIMA (2004) summarised the issue in broad terms:

To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle.

137. In their majority joint judgment, Gleeson CJ, Gummow and Kirby JJ. set out at paragraph [36] the correct approach to the question of whether a group falls within the scope of the term ‘particular social group’ for the purposes of the Convention:

Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group” As this Court has repeatedly emphasised, identifying accurately the “particular social group” alleged is vital for the accurate application of the applicable law to the case in hand.

138. Therefore whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared for reasons of the person’s membership of the particular social group.
139. The observation of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 285 (citing with approval Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565 at 569:

There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.

140. Whether a posited group constitutes a particular social group is a mixed question of fact and law, depending both upon the satisfaction of the legal requirements as exemplified in Applicant S, but also upon whether the evidence in fact supports the existence of the group. As McHugh and Gummow JJ observed in Minister for Immigration and Multicultural Affairs v Khawar 210 CLR 1 at [81],

It was open to the Tribunal on the material before it to determine that there was a social group in Pakistan comprising, at its narrowest, married women living in a household which did not include a male blood relation to whom the woman might look for protection against violence by the members of the household.

141. In Khawar McHugh and Gummow JJ stated:

The membership of the potential social groups which have been mentioned earlier in these reasons would reflect the operation of cultural, social, religious and legal factors bearing upon the position of women in Pakistani society and upon their particular situation in family and other domestic relationships.

142. The Tribunal must first determine whether the particular social group put forward by the applicant’s representative meets the requisite legal preconditions identified in Applicant S, before considering whether the evidence actually supports the existence of the group in question. The Tribunal must then assess whether the persecution feared is for reason of the applicant’s membership of the particular social group or because of the motivation of the state in failing to provide adequate protection from the harm feared in accordance with international standards.
143. The particular social group is ‘high profile failed asylum seekers’ The definition of this group meets the first test set out in Applicant S in that the group is “identifiable by a characteristic or attribute common to all members of the group.” All the members of the group are “united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle” namely they are team members who applied for asylum in Australia following their failure to return to Rwanda after the Homeless World Cup.
     144. The second part of the test requires that the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. As Dawson J explained in Applicant S at 242:

[h]owever, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution. There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention “completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)”

145. The Tribunal accepts that the group as proposed by the applicant’s representative satisfies the second part of the test in Applicant S in that its membership is not defined by the persecution feared.
146. The third part of the test requires that “the possession of that characteristic or attribute must distinguish the group from society at large.” In Applicant A, Dawson, McHugh and Gummow JJ stated:

The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large.

147. For the claim that an individual’s fear of harm or mistreatment comes within the Convention ground of “membership of a particular social group” the particular social group must be cognisable or recognisable within the society.
     148. This aspect of the test is problematic in so far as the group ‘high profile failed asylum seekers’ is not, according to the independent country information cited above, cognisable within the society. The evidence indicates that a failed asylum seeker in Rwanda would not be treated differently to a person who had been away for a prolonged period or that they are recognised as set apart from the rest of society. The evidence before the Tribunal does not indicate that there was any media coverage of the matter in the Rwandan media.
     149. Without any evidence to indicate that the Rwandan authorities hold, or have reason to hold, any adverse interest in the Rwandan Homeless World Cup soccer team, or the applicant in particular, the applicant’s claim that he will face persecution for reason that he is a ‘high profile failed asylum seeker’ is based on no more than speculation (MIEA v Guo).
     150. Accordingly, the Tribunal does not accept that ‘high profile failed asylum seekers’ in Rwanda constitutes a particular social group for the purposes of the Convention.

Homeless Young Rwandan Men

151. The applicant’s representative claims in her submission that the applicant is at real risk of persecution as a homeless Rwandan orphan on the streets. She claims that he “faces a real risk of arbitrary arrest in police round-ups, an inability to subsist and the possibility of being trafficked.”
152. It is not disputed that the applicant is a homeless orphan in Rwanda and the Tribunal is further satisfied that the persecution feared by the applicant is a consequence of him being homeless rather than the general poverty and lack of resources of the Rwandan government.
153. The Tribunal accepts, based on the independent country information referred to above, and having regard to the “cultural, social, religious and legal factors” affecting the homeless in Rwandan society, that ‘homeless young Rwandan men’ constitute a particular social group.
154. With respect to homeless persons in Rwanda, the country information indicates that the situation for homeless persons in Rwanda is highly uncertain, precarious and dangerous. The applicant’s evidence is that homeless people were subjected to harassment and mistreatment by the police.
155. This country information makes it clear that homeless people in Rwanda suffer serious harm in the form of arbitrary detention and forced removal from state authorities or their agents.
156. Based on the independent country information cited above, the Tribunal accepts that for the purposes of the Convention, the particular social group of ‘homeless young Rwandan men’ is cognisable in Rwandan society Further, the Tribunal accepts that the characteristic that binds this group is not and does not constitute a shared fear of persecution.
157. Based on the country information cited above, the Tribunal accepts that the applicant faces a real chance of serious harm if he returns to Rwanda He has lived on the streets since 2004 and there remains a real chance of persecution of him as a homeless Rwandan orphan who is subject to mistreatment and the possibility of arbitrary arrest in police round-ups.
158. Even in the event that the applicant were to return to Rwanda without attracting the adverse attention of the authorities as described above, he would clearly return to live on the streets which, as found above, leaves the applicant without familial and social networks and safeguards and open to the persecutory behaviour of a regime that has a record of harsh and arbitrary behaviour towards those who are homeless.
159. On the basis of the evidence before it, the Tribunal finds that there is a real chance that the applicant would face persecution that involves serious harm involving systematic and discriminatory conduct for reasons of his membership of the particular social group of ‘homeless young Rwandan men’.
     160. In light of all the evidence before it, the Tribunal is satisfied that any conduct engaged in by the applicant in Australia, in particular the act of applying for asylum, has been otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. On this basis, the Tribunal finds that it is not obliged to disregard the applicant’s conduct in Australia in accordance with the provisions of section 91R(3) of the Act.

State Protection

161. The applicant claims that he is unable to avail himself of effective state protection.
162. In MIMA v Respondents S152/2003 [2004] HCA 18; (2004) 205 ALR 487, the High Court stated that a reasonable level of State protection encompasses a “reasonably effective police force and a reasonably impartial system of justice.” [28].
163. The applicant’s representative submits that by failing to protect orphaned and homeless Rwandan children against persecution carried out by its agents and individuals in the community, the State tacitly sanctions these acts.
164. The Tribunal accepts that the applicant’s unwillingness to avail himself of state protection is justified based on the country information cited above, as there is, in the view of the Tribunal, a real chance that the Rwandan authorities would be unwilling to provide a reasonable level of protection to the applicant.
165. In light of the above evidence and discussion, the Tribunal finds that there is a real chance, now or in the reasonably foreseeable future, that the applicant would be persecuted for reason of his membership of the particular social groups of ‘high profile failed asylum seekers’ and ‘homeless young Rwandan men’, should he return to Rwanda. For this reason, the Tribunal finds that the applicant’s fear of persecution for a Convention reason is well-founded.
166. The persecution involves serious harm for the purpose of s91(1)(b) of the Act. In making this finding, the Tribunal relies on its earlier findings in relation to the likelihood of the applicant’s mistreatment or abuse should he return to Rwanda. The Tribunal also finds that the withholding of state protection as discussed above involves systematic and discriminatory conduct for the purpose of s91R(1)(c).

Relocation

167. The applicant claims that he cannot safely relocate anywhere within Rwanda in order to avoid persecution. He claims that people with his profile are targets of discriminatory harassment and violence at the hands of the government authorities so as to render re-location an unreasonable option.
168. On the basis of the evidence before it, including the country information set out above, the Tribunal finds that there has been a history of mistreatment of homeless young men by the state authorities throughout Rwanda, and a widespread failure to provide them with state protection. For this reason, the Tribunal is satisfied that there is an appreciable risk that the applicant may not be able to access adequate state protection anywhere in Rwanda. The Tribunal finds that the applicant would not reasonably be able to relocate to another region within Rwanda.
     169. On the basis of the evidence before it, and having considered the applicant’s claims individually and cumulatively, the Tribunal accepts that the applicant faces a real chance of serious harm if he returns to Rwanda now or in the reasonably foreseeable future. The Tribunal therefore accepts that the applicant has a well-founded fear of persecution within the meaning of the Convention.

CONCLUSIONS

170. The Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a) for a protection visa.

DECISION

171. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act, being a person to whom Australia has protection obligations under the Refugees Convention.