‘There never seems to be any consistent rule or fairness,’ specialist migration lawyer

A 28-year veteran of migration law whose Rwandan clients have all been denied Australia’s protection says the resettlement of two members of a violent Hutu rebel group shows a “frustrating” double standard.

Australia’s deal with the US to take in two former members of the Army for the Liberation of Rwanda, once designated a terrorist group by the US, has prompted consternation among some experts and lawyers. The pair were languishing in US detention after the collapse of a case against them for the slaughter of tourists in Uganda in 1999.

The decision to accept the pair is seemingly at odds with the government’s otherwise tough and vigorously applied “character test”, which can be used to refuse or cancel visas for those with historic links to criminal groups.

Michaela Byers, of Michaela Byers solicitors, says she has represented half a dozen Rwandans trying to build a new life in Australia as refugees.

The government, she said, had taken a hard line against all of them. None had been successful in their applications.

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“They were applying as refugees, they [the government] just didn’t believe them, they just didn’t believe what they said happened to them in Rwanda,” Byers said. “It’s hard to believe, when you have knowledge of the conflict there.”

One Rwandan she represented was denied asylum, despite his fears he would be killed if he returned home. He said he had fallen out with the ruling Rwandan Patriotic Front and was involved with the Rwanda National Congress, an exiled opposition group. The government did not believe his claims and he did not win his appeals.

Byers said it was frustrating that the government had fought vigorously against her clients while waving through resettlements from the US.

“But it’s not surprising at all,” she said. “I find it’s all very arbitrary. There never seems to be any consistent rule or fairness at all.”

In a current case, Byers is representing a Sri Lankan man who was accepted as a refugee but excluded from a protection visa because the government said it believed he had committed a war crime.

“I believe there is no grounds at all. It is all speculation, and even the country information wasn’t consistent with that finding,” Byers said.

Old traffic offences had been used to fail clients on character grounds. “So they seem to have two standards that they are applying … they’re all over the place, usually adversely,” Byers said.

“But this case, because it has something to do with an arrangement with the US, none of that applies, obviously.”

The character test can be used to block visas if a person “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 character test can be overridden if the government or minister decides accepting a person is in the national interest.

On Thursday the judge who sat on the two men’s asylum bid in the US told the ABC he had ruled against them because he believed them to be dangerous, regardless of whether they committed the Bwindi murders.

“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.

A University of Queensland migration law expert, Peter Billings, said it was open to the government to use the character test to block the pair’s entry into Australia, had it wanted to.