Two men accused of killing tourists were resettled despite being members of a group on a terrorist exclusion list, as judge in their case brands them ‘dangerous’

Two Rwandans who were let into Australia under a secret US aslyum deal could have been rejected under Australia’s strict and vigorously enforced character test, a migration law expert has said.

The assessment comes as an American judge who heard their US asylum case insisted they were “dangerous” and had posed a threat to the safety of the US.

Retired US immigration judge Wayne Iskra told the ABC he did not believe the men had been rehabilitated.

“I made the decision that these individuals were dangerous when I denied their applications for asylum,” Iskra said.

Australia has used its broad “character test” powers with increasing zeal in recent years, using them to refuse visas or deport non-citizens to New Zealand for decades-old criminal histories or past associations with criminals.

But similar concerns were not enough to stop Australia secretly agreeing to take two Rwandans languishing in detention in the United States, causing successive US administrations huge headaches.

The men, Gregoire Nyaminani and Leonidas Bimenyimana, had previously been accused of slaughtering western tourists in a targeted and brutal 1999 attack in the Ugandan Bwindi forest.

They were extradited to the US but the prosecution against them ultimately failed because their inconsistent and shifting confessions were obtained through prolonged torture by Rwandan interrogators. But their membership of the Hutu rebel group that perpetrated the attack – the Army for the Liberation of Rwanda (ALIR) – was not in dispute.

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The group was an offshoot of Rwandan armed forces and paramilitary groups, including the Interahamwe, which was largely responsible for the 1994 genocide. The US government added ALIR to its “terrorist exclusion list” in 2001, two years after the Bwindi attack.

Australian migration law allows either the department or the minister to refuse or cancel a visa using the broad, discretionary requirements of the “character test”.

A person can fail the character test if he or she “has or has had an association with someone else, or with a group or organisation, whom the minister reasonably suspects has been or is involved in criminal conduct”.

The government has broad discretion on whether to use the powers to block or cancel visas, and is able to proceed if they decide it is in the national interest. Leaked transcripts between the former prime minister Malcolm Turnbull and Donald Trump show Australia was resettling individuals who were problematic to the US.

“Basically, we are taking people from the previous administration that they were very keen on getting out of the United States,” Turnbull told Trump in 2017.

‘The power was open to the government’

The migration law expert Peter Billings, an associate professor at the University of Queensland, has spent years studying how the character test is being used to block visas or deport non-citizens.

He said the publicly available evidence about the Rwandan case suggests it was open to the government to refuse to take the pair on character grounds.

“If there’s credible evidence showing that these men were at least associated with, or members of, the [ALIR], then it would seem to me that the character test … would have been enlivened, and therefore it was open to the government to say ‘no’ on character grounds,” Billings said.

“I’m not necessarily saying that’s the right decision… but it seems to me that the power was open to the government, and they’ve chosen not to use it, and we could speculate why they have chosen not to use it, given the wider political context.”

Iskra, the judge who heard the men’s bid for asylum in the United States, told the ABC he had no evidence the men were responsible for the killings. But he said there was evidence they were present at the time and could therefore be a danger to others.

“I didn’t have any evidence that either of these individuals did the killing, but they were there when the killing occurred, and therefore, they would be considered persecutor of others, and a danger.” He said he did not believe they had been rehabilitated, and posed a threat to the safety of the US.

“At that time, the time of that hearing, I made a determination that they were a danger to the community.”

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Billings said the character test – broadened significantly in 2014 – is currently used in a punitive, often inflexible, and arguably unfair fashion to refuse visas or deport non-citizens.

“Since 2014, a combined effect of the changes of law that the government made, when Scott Morrison was immigration minister, in tandem with what I’ll call it’s very vigorous administration by the government… has led to a 1,400% increase in the number of visa refusals or cancellations,” he said.

The powers have been used against a “broad church” of people – from those convicted of serious crimes to those with “relatively minor criminal histories”.

Viewed in that context, Billings said there were genuine questions arising about whether Australia has taken a more relaxed approach to individuals recently resettled from the US.

“I can understand why journalists have queried why these humanitarian entrants have been granted visas when it appears, based on what we know, that there are some reasonable grounds for questioning their character,” he said.

“It’s difficult to divorce their cases from the wider political context, given what we know about the well-publicised exchange between Turnbull and Trump in early 2017, and on the basis of that transcript that at least intimates to the public that the government appears to have been prepared to take a more relaxed approach to its admittance of particularly refugees from the US than it otherwise might take in other cases involving other prospective humanitarian entrants.”

Court documents from the US clearly show Nyaminani and Bimenyimana were members of the ALIR. They joined after witnessing or being victim to horrific acts of violence. Nyaminani joined the Armed Forces of Rwanda in 1992 during Rwanda’s bloody civil war, witnessing horrific atrocities detailed in US court judgments. He later fled into refugee camps, which were also attacked. The atrocities spurred him into joining the ALIR, eventually reaching the rank of first sergeant.

“It was after this experience that Nyaminani joined ALIR, in January 1998,” a US district court judgment said. “Nyaminani was assigned to ALIR’s Irondelle Company. While fighting as a member of ALIR, Nyaminani sustained a minor head injury from a grenade blast.

“He also watched as the RPA [the primarily-Tutsi Rwandan Patriotic Army] trapped civilians on the bank of a large river called Ruhoro, shooting some and forcing the others to jump in to avoid being killed. Nyaminani remained a member of ALIR, attaining the rank of first sergeant, until his capture by the RPA in battle on June 15, 2001.”

Bimenyimana also originally served with the Armed Forces of Rwanda, until their defeat in the 1994 civil war. He said he joined the ALIR after his family were murdered viciously by the RPA in 1997, including his younger brother who was imprisoned and beaten to death, his cousin who was fatally bashed with a stone outside their family home, and his grandfather who was burnt to death in a deliberately lit fire.

“That same year, 1997, Bimenyimana joined ALIR and assumed the rank of first sergeant.”

He reached the rank of second lieutenant in the ALIR, the US district court said.