ETZ21 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 1120

1. These proceedings were commenced on 16 December 2021 by the applicant seeking a constitutional writ in respect of a decision of the second respondent, the then Administrative Appeals Tribunal ("Tribunal) made on 17 November 2021 affirming the decision of a delegate ("delegate") of the first respondent ("Minister") not to grant the applicant a protection (class XA) visa ("protection visa").
2. The applicant was found to be a citizen of Rwanda. The applicant claims to fear harm if he returns to Rwanda because he will suffer serious harm at the hands of M23 and its agents either cumulatively or separately on account of his:

(1) racial nationality, being a Rwandan Tutsi formerly from the Democratic Republic of Congo;

(2) raceal nationality as a Tutsi, with a Congolese father and a Rwandan mother;

(3) membership of a particular social group, having a Congolese father and a Rwandan mother; and/or

(4) imputed political opinion because of his refusal to fight with or support M23 or the Rwandan army and authorities against the Democratic Republic of Congo.

1. On 18 November 2018, a delegate found that the applicant failed to meet the criteria for the grant of a protection visa. The applicant applied to the Tribunal for a review of the Minister's decision on 20 December 2016. By letter dated 8 July 2021, the applicant was informed that the Tribunal had considered the material before it but was unable to make a favourable decision on the information alone. The applicant was invited to attend a hearing on 12 August 2021. The applicant attended the hearing on 12 August 2021 and was assisted by an interpreter.
2. On 17 November 2021, the Tribunal affirmed the decision not to grant the applicant a protection visa. The Tribunal identified the background to the review application and set out the relevant law. The Tribunal identified that the applicant was granted a (Class FA) (subclass 600) Business Visitor visa on 15 October 2023 and arrived in Australia on 23 October 2023. Materially, the Tribunal found the applicant departed Rwanda on 22 October 2013 and arrived in Australia on 23 October 2013. The Tribunal identified the applicant's claims and that his father was Congolese, and that his mother was Rwandan and that he claims to belong to the Tutsi ethnic group.
3. The applicant identified he lived with his maternal uncle in a particular region until his departure for Australia in October 2013. The applicant identified that he had visited Kenya in September 2011 and obtained information as to how to enter Australia and that he had visited Kenya via Uganda to lodge his application for a visa. The applicant identified visiting Kenya in 2012 to further his visa application, and in 2013, he travelled to Kenya to pick up his Australian FA 600 Business Visitor visa. The Tribunal referred to the applicant's claim of being forcibly enlisted into the Rwandan army. The Tribunal referred to the applicant claim that he had been held in detention for four or five days and was beaten by guards and was told he needed to fight in the Democratic Republic of Congo. The applicant alleges he was taken to a hospital, suffering from malaria, and ran away and returned to his uncle's place before departing Kenya. The applicant claimed to be fearful of being picked up by the Rwandan authorities following his escape from the hospital. The applicant referred to returning to his home region, from Nairobi, transiting through Uganda on 17 October 2013.
4. The applicant claims that he was taken at gunpoint from his home region whilst attending a restaurant and driven to a police station. The applicant alleges that one of the police officers helped him escape under the premise of escorting him to the toilet. The Tribunal identified that the applicant fears he will be forcibly enlisted into the military and sent to fight in the Democratic Republic of Congo. The applicant fears that the Rwandan authorities will make him do so and fears that the Rwandan authorities will be able to find him as they have already picked him up and attempted to enlist him on two prior occasions and will not protect him from harm.
5. The Tribunal identified raising with the applicant at the hearing questions about his travel to Kenya and how it was possible if the Rwandan authorities were targeting him, as well as the delay in his application for asylum and why he would specifically be targeted and whether he would still be sent to fight. At the end of the hearing before the Tribunal, the applicant was provided with an opportunity to provide further documents or submissions, and no such material was provided.
6. The Tribunal referred to country information. The Tribunal accepted the applicant's explanations as to being a Rwandan citizen and that his citizenship of the Democratic Republic of Congo had ceased. The Tribunal found the applicant was a national of Rwanda as claimed and that Rwanda is a member of the EAC and that the EAC Treaty has been in force since July 2000 and that it is a freedom of movement.
7. The Tribunal found that it was not in dispute that the applicant could move to EAC member states for a period up to six months and that he had travelled to Uganda and Kenya on a number of occasions. The Tribunal was satisfied that the applicant has a right to enter and reside in other EAC member states within the meaning of s 36(3) of the Migration Act 1958 (Cth) ("the Act"). The Tribunal found that the Democratic Republic of Congo was not a member of the EAC at the time of the making of the decision, and accordingly the applicant does not fall within the meaning in s36(3) of the Act.
8. The Tribunal returned to the principles concerning credibility findings. The Tribunal identified although it had credibility concerns pertaining to the applicant, being a person of interest to the authorities of Rwanda, it accepted the following aspects regarding his circumstances:

(a) The applicant was born in the Democratic Republic of Congo and his family ethnically are Tutsis;

(b) The applicant was brought up in a blended family;

(c) The applicant did not complete his secondary school education;

(d) The applicant's parents had passed away;

(e) The applicant's mother was a citizen of Rwanda;

(f) The applicant completed a Diploma in Humanitarian Studies in his home region and earned a living as a music journalist and musician;

(g) The applicant worked in Rwanda as an artistic therapist for a charitable organisation;

(h) The applicant travelled to Kenya at least three times and had been to Uganda and Tanzania, and he visited the Democratic Republic of Congo in 2009;

(i) The applicant arrived in Australia on the business visa on 23 October 2013 and did not apply for protection until 17 January 2014;

(j) The applicant has resided largely in Western Australia; and

(k) The applicant does not have dependents.

1. The Tribunal referred to the applicant's claim of being targeted by the Rwandan authorities and identified credibility concerns because he provided two implausible accounts of escaping from forcible recruitment, and because he was unable to explain how he as a person of interest departed Rwanda without coming to the attention of the authorities. The Tribunal referred to the two alleged detentions and escapes and the timing of the applicant's arrival in Australia and the lapse of three months before applying for a protection visa. The Tribunal identified raising a number of credibility concerns about the applicant's claims. The Tribunal identified the implausibility of the applicant having been released from detention and forcibly recruited at the army barracks. The Tribunal identified that it did not seem plausible for the Rwandan authorities to conduct forced recruitment where escaping detention was achieved so straightforwardly or with little effort or planning.
2. The Tribunal identified the issue of the applicant, given his alleged flight to Kenya for his safety, returning to Rwanda when his visa had been granted and that it wasn't necessary to return to his home region and risk his safety. The Tribunal also identified a number of far-fetched and implausible elements in relation to the second abduction and escape, including that the applicant was discovered within one day of returning to Rwanda and that a relative was working at a police station and that the relative helped him to escape. Further, the Tribunal questioned whether it was credible in the sense of him not being intercepted by the authorities at the point of departure from the international airport at Rwanda, given that he had escaped from the authorities on two occasions.
3. The Tribunal found the applicant's credibility was central to his dispositive claims. The Tribunal found the applicant's claims about past harm and subsequent evasion from authorities lack plausibility and persuasiveness. The Tribunal found the applicant's claims were undermined, particularly by the applicant returning to Rwanda from Kenya after the grant of the visa in October 2013.
4. The Tribunal found that the applicant had provided no evidence to corroborate or substantiate his critical claims for protection. The Tribunal made adverse credibility findings about the applicant's written and oral claims. The Tribunal did not accept the applicant became the subject of adverse attention by the police or military or anyone else in authority in Rwanda because he was formerly a national of the Democratic Republic of Congo or was a Congolese Tutsi or a Tutsi from a particular area.
5. The Tribunal did not accept the applicant was apprehended by the police whilst in transit, that the applicant was detained at a police station and removed to a detention centre and army barracks for the alleged reasons claimed. The Tribunal did not accept the applicant fell ill and sufficiently recovered to be taken to a hospital from which he escaped. The Tribunal did not accept the applicant departed Rwanda for Kenya to evade the authorities as the applicant was not a person of interest for forcible recruitment into M23 for a proxy for war in the Democratic Republic of Congo by the Rwandan authorities or for any other purpose.
6. The Tribunal found that had the applicant had a genuine fear, the applicant would have avoided returning to his home region. However, the applicant did return to his home region, and the Tribunal did not accept in those circumstances that the applicant held any trepidation towards the Rwandan authorities of harming him. The Tribunal did not accept the applicant was subsequently apprehended and arbitrarily detained after his return to Rwanda in October 2013.
7. The Tribunal found the applicant's account of escaping from a police station to be far-fetched and lack credibility. The Tribunal did not accept that the applicant hid to evade the authorities or that the applicant had fears about departing from Rwanda from the international airport or that authorities would be uninterested in a person who had twice evaded detention. The Tribunal did not accept that the applicant would be a person of interest or face a real chance of serious harm as a failed asylum seeker on arrival in the community, and that the applicant had fabricated these claims for protection which related to his ethnicity and former nationality.
8. The Tribunal found the applicant's claims lacking in overall credibility and did not accept that the applicant had any genuine fear of persecution for the reasons claimed at the time he departed Rwanda, at the time he lodged his application for protection or at the time of the hearing. The Tribunal did not accept the applicant holds subjective fears of persecution based on his ethnicity or former nationality or a combination of these or any related convention reasons based on the alleged claims advanced in the foreseeable future.
9. The Tribunal found the dispositive claims about past harm incidents were fabricated for migration purposes and not because he is owed Australian protection obligations. The Tribunal referred to its credibility concerns and cumulatively found the applicant's claims around being subjected to incidents of arbitrary detention and subsequent evasion of the authorities for the purpose of forcibly being recruited and conscripted against his will to be fabricated and contrived. The Tribunal found the applicant does not face a real chance of serious harm for a convention reason, including based on his ethnicity and former nationality, for a return to Rwanda. The Tribunal did not accept the applicant has a well-founded fear of persecution based on the alleged incidents of past harm which the tribunal found were fabricated or that he will be a person of interest on return to Rwanda in the reasonably foreseeable future.
10. The Tribunal referred to country information and the want of corroborating or supporting material for the applicant's claims of imminent conscription. The Tribunal found the applicant's chance of subscription to be remote and far-fetched. The Tribunal referred to country information in relation to ethnic Hutus and found that while the applicant may face societal discrimination from Hutus in employment or other fields of civilian life, the Tribunal did not accept that the levels of discrimination would amount to serious harm by the applicant or face severe economic hardship, the denial of access to basic services or denial of capacity to earn a livelihood of any kind that threatens the applicant's capacity to subsist or any other serious non-exhaustively identified serious harm. The Tribunal accepted that there was ethnic tension in Rwanda and found that the applicant's chances of facing serious harm were remote and far-fetched.
11. The Tribunal found there were no substantial grounds to accept that the applicant as a necessary and foreseeable consequence of being removed from Australia will face a real risk of significant harm in Rwanda. The Tribunal found that the applicant does not meet the criteria under s 36(2)(a) of the Act or s 36(2)(aa) of the Act. The Tribunal found the applicant is not a person in respect of whom Australia has protection obligations and affirmed the decision under review.
12. The proceedings have a protracted history, as a number of efforts were made to obtain legal representation for the applicant, and then as a result of that legal representation, to accommodate other possibilities whereby the applicant's application in these proceedings may have been unnecessary to pursue. Sadly, however, the legal representation withdrew on 27 March 2025. The Court made directions on 7 April 2025 accommodating procedural steps and fixing the matter for a final hearing on 10 June 2025.
13. At the commencement of the hearing, on 10 June 2025, the Court explained to the applicant the nature of the hearing, as well as the process that would be followed, and the applicant confirmed he understood what was said by the Court. The applicant also had a friend sitting with him at the bar table. The applicant orally submitted that the Tribunal had not checked the claims advanced by the applicant and what was happening in Rwanda. The applicant made reference to what was happening in Rwanda today and said that he should be given a chance.
14. The applicant also adopted submissions that had been advanced on his behalf and were admitted into evidence, subject to relevance, advancing, in substance, an allegation of apprehended bias and alleged deficiency in the adverse credibility findings. The Court finds that nothing said by the applicant identifies any jurisdictional error in the conduct of the review or in the Tribunal's decision. It was for the applicant to adduce sufficient evidence to establish his claims under s 5AAA of the Act. Further, what is allegedly happening now in Rwanda today is not something that was before the Tribunal and cannot give rise to any alleged jurisdictional error. Further, there is no such requirement that the Tribunal must give the applicant a chance insofar as that means making a favourable decision to the applicant.
15. It is apparent that the Tribunal did carefully consider the applicant's claims as a whole and made dispositive findings in respect of the whole of the applicant's claims that were open for the reasons given by the Tribunal. The adverse credibility findings were the subject of rational and logical reasons and cannot be said to lack an evident and intelligible justification. The Tribunal identified the rational and logical justification as summarised above and in particular the returning to Rwanda from Kenya and then his home region and departing from Rwanda without explanation as to how that occurred. The adverse credibility findings were open for the reasons given by the Tribunal.
16. The applicant's oral submissions otherwise invited a merits review. This Court has no jurisdiction to review the merits. It is apparent from the Tribunal's reasons that it carefully addressed the applicant's circumstances, and this is not a case of a kind upon which it could be said there was any duty to inquire that arose in this case. Further, it is apparent that the Tribunal did, in fact, accept some of the applicant's evidence in relation to his ethnicity and his citizenship. On the face of the material before the Court, including the detailed reasoning of the Tribunal, this is not a case where there is any basis to find that the Tribunal approached the hearing with other than an open mind reasonably capable of persuasion as to the merits.
17. Insofar as the adverse findings and/or adverse outcome before the Tribunal are alleged to be conduct giving rise to an allegation of apprehended bias, it is apparent that the Tribunal provided logical and rational reasons for its adverse credibility findings and for the adverse outcome. No conduct has been identified by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.
18. The ground in the applicant's application is as follows:
    1. The Tribunal failed to properly consider the Applicant's circumstances of persecution in his home country.
19. Ground 1 is, in substance, a disagreement with the adverse credibility findings made by the Tribunal which were open to the Tribunal as identified above.
20. For the reasons earlier given, it is apparent that the Tribunal carefully identified the applicant's background and his claims to fear persecution and made adverse credibility findings that were rational and logical, particularly in circumstances where he had so recently returned from Kenya to Rwanda, being the country whose authorities the applicant alleged he feared, and then returned to his home region and then departed from Rwanda without explanation as to how that could occur if he was of interest to the authorities. On the face of the material before this Court, the Tribunal made adverse findings dispositive of the whole of the applicant's claims that were open for the reasons given by the Tribunal. No jurisdictional error as alleged in ground 1 is made out.
21. It is for these reasons the Court makes the above orders

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.