1600550 (Refugee)

1600550 (Refugee) [2018] AATA 574 (19 February 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1600550
COUNTRY OF REFERENCE:                  Burundi
MEMBER:Shahyar Roushan
DATE:19 February 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 February 2018 at 11:36am
CATCHWORDS
Refugee – Protection visa – Burundi – Political opinion – MSD member – Credibility issues
LEGISLATION
Migration Act 1958, ss 5(1), 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
BACKGROUND, CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant is [an age] year old citizen of Burundi. He is Catholic and of Hutu ethnicity. He resided at a single address in Bujumbura, Burundi from birth until December 2008 when he travelled to [Country 1]. He resided in [Country 1] until April 2014 and arrived in Australia on a [temporary] visa [in] July 2014. He applied for a protection visa [in] August 2014.
In his application for a protection visa, in response to questions relating to his reasons for claiming protection, the applicant provided the following information:
I left Burundi because I was fearful of persecution through harm and torture by the Burundi government because of my political opinion as a member of the Movement of the Solidarity and Democracy (MSD) since 2012. The Burundi government orders the police in the country to locate, intimidate, and harm members of the organisations, such as the MSD, that oppose the current government. The police, as directed by the government, is targeting me because of my membership in the MSD. The government and the police see me as a threat to the government because of my membership in this group. My father is the former [staff] of [an official] of MSD. My father fled and went into hiding with my family because of the government's harsh treatment of MSD members.
The airport authorities in Burundi discovered my MSD membership cards when I arrived from [Country 1] [in] April 2014. The police at the airport detained and interrogated me concerning my membership with the MSD. I told them I had not committed any crime but because of my MSD membership, I was threatened and beaten before being released. The police threatened that they "would do onto me what they have done to other members of MSD." I have heard many stories of the government imprisoning, torturing and killing fellow members of the MSD and other anti-government political groups. The threat from the police made me fear for my life. I believe I would be killed if I stayed in Burundi because of my political opinion as a member of MSD.
I came home after the police threats and beatings at the airport to find that my family had fled. I spoke to my neighbour who put me in contact with my family.
My family was in hiding and told me very little about their location because they were afraid that our family would be killed if the Burundian authorities found either one of us. I was in hiding for two months because I knew the undercover police are everywhere and I would be killed if they found me. I left Burundi because I realised I could not survive in hiding for the rest of my life. I knew that eventually I would be killed when the authorities found me.
[In] May 2015, the applicant submitted a detailed statement in support of his application for a protection visa. In his statement, the applicant claimed the following (not corrected for spelling or grammar):
1. My name is [name]. I am from Burundi, a small country located in Central-East of Africa ' characterized by political turmoil and instability since October 1993.
2. I was born on [date] in [Suburb 1], one of the mostly Hutu inhabited suburb of Bujumbura, the capital city of Burundi; from [father’s name], a Hutu, and [mother’s name], a Tutsi. I have [specified siblings].
3. In [Country 2], we first lived in [a city]. Probably my parents found life unaffordable and we moved to [a second city] right after a few months. We settled in [that city] for nearly three years before heading back to Burundi in [year]. We then went back to live in [a location] before moving [Suburb 2] where we made our new home since [1998].
4. Since, my father went back to his usual [business]. He spent most of his time away which means that we spent more time with my mum, who was [an occupation].
5. Life went on and my father got a job from a [company], which consisted in organizing [business] from [Country 2] to Burundi. That job kept him away from home very often.
6. In November 2008, a man known as [Mr A], a businessman and one of the sponsors of the ruling party CNDD-FDD started to spread the rumour about me, stating that it has come to his attention that I am homosexual, I have been having sexual relations with his son [Mr B]. [Mr A] was about to take the case to the police. After hearing the breaking news, my dad decided to shorten his business trip and came back home to deal with the issue before things get out of hand.
7. I call this "heartbreaking", because, as you may be aware, homosexuality is banned in Burundi and any homosexual caught in action can be killed, no question asked!
8. Not only [Mr A] was going to take the issue to the police, but also he was planning to get me killed using some of the militias affiliated with the ruling party.
9. Until that day, I did not know that a man called [Mr C], a good friend to my father, was the one who arranged for our visa in 1994 when we fled to [Country 2]. [Mr C], tutsi [was] born and raised in [Suburb 1], was and good friend to my dad since their young age. [Details deleted].
10. My father contacted my aunty [named] and his friend [Mr C] to help him organize a visa to flee Burundi as soon as possible, before the worse happens to me.
11. I was granted a visa to [another country], but I decided to cross the border to [Country 1] where I lodged my application for refugee status in the ground of fear of being persecuted for my sexual affiliation.
12. In 2009, I heard about [Mr C’s] political party the MSD (Movement for Solidarity and Development) through a conversation with my dad. Later, I became aware that my father was employed as [Mr C] as his [staff]. They toured the country side-by-side all the time [Mr C] was travelling in all corners of the country; making promoting [the] party and making his ideology known throughout the whole country.
13. After the 2010 general elections in Burundi, I felt disappointed by the fact that most political parties including the MSD decided to boycott the presidential elections. In a long conversation with my dad, I came to the conclusion if any changes have to occur in Burundi, it has to come from the youth. My dad advised me that the MSD has a very good program for country in general and for the youth in particular. That inspired me and gave me the idea of making a formal request to become an active member of the MSD residing abroad. It wasn't until late in 2011 that the MSD included in their constitution a clause that would authorize all Burundians residing abroad to create sections of the party.
14. As soon a section was created in [Country 1], I became a member and since, I paid my membership fees regularly and was granted a membership card. I remained a member of the section of the MSD in [Country 1] until the date I was notified by the Department of Immigration in [Country 1] that my application for asylum has been declined and therefore I have to get ready to voluntarily return to Burundi or be forcibly deported. That was in March 2014. A Immigration officer was assigned to maintain contacts with me and arrange for my return to Burundi.
15. Few days later, I made contacts with the Immigration officer in charge of my case and advised them that I had arranged my return back to Burundi [in] April 2014 and subsequently needed my passport back. Note that, during my entire stay in [Country 1], my passport was held by the Immigration department. The immigration officer notified that any documents held in their office would be returned to me once I get to the airport in Burundi. He assured me however that appropriate arrangements will be made with my flight to get me to my destination without any ' hassle. The immigration officer added that my passport and any other document enabling me to leave [Country 1] will be brought to the airport as per my flight arrangements.
16. When I got to the airport at [time], an immigration officer in uniform was already there, waiting for me. He approached me and explained to me clearly how the process was arranged. He said to me: Your passport will be handed to your flight officials. Any change of flight will be arranged accordingly until you reach your country. At Bujumbura airport, your passport along with a letter explaining your situation will be handed to the Burundi Immigration office at the airport. You will then collect them from there. Any attempt to disturb the security while travelling will result in serious prosecution. I left [a Country 1] Airport [in] April 2014 at around [time]. I arrived in Burundi at Bujumbura International Airport [in] April 2014 afternoon.
17. Together with all the passengers on board, I got out the plane heading towards the Immigration. Before even I start looking around to see who would bring me my passport, I saw two Burundi Immigration officers accompanying one from the [name] Airlines official coming towards me, holding my passport. Without even introducing themselves, they summonsed me to follow them. They took me to a room which looked like their interview room. The room had a table and three chairs as far as I can remember. They instructed me to sit down quietly and wait there, without clarifying what or whom I was waiting for. I was sitting there for quite a long time with the two officers standing at the door like they were instructed to keep a close eye on me. I became anxious and asked one of the officers the reason why I was held there. Their response was harsh and threatening: The boss will be with you soon to let you know why you are held here.
18. The more I stayed in that room, the recollection of what made me run away from the country came to my mind. Since I knew that in my country, any act of homosexuality could result in immediate killing, I could not stop thinking that my fate was going to be decided soon and that the chances of getting out of that room alive were close to zero. [Mr A], father of [Mr B] that I was suspected of having intimate sexual relations with, was such a powerful and rich man, with strong ties with a number of high ranking officials from the ruling party. He had the ability to corrupt the police and get me killed whenever he wanted.
19. After a considerable amount of time, a man in uniform walked in the room. Without introducing himself or asking at least ask me to identify myself, he did not waste his time and started to ask questions.
20. In one way, I was relieved because no question related to any suspicion that I was homosexual. On another hand, I quickly realized that things were becoming more serious. I was now considered as an extremist political activist whose father has was wanted for his involvement in the 8th of March 2014 event where [Mr C] was suspected of planning a coup d' Etat against the elected president Mr. Pierre Nkurunziza.
21. At the beginning, the officer asked to tell him my father's whereabouts. I replied that I just landed from [Country 1] and that I know nothing about my father. Then, it tuned to me. I was suspected of being fully aware of what happened on 8th of March 2014. I replied that I knew nothing about whatever happened in Burundi while I was in [Country 1]. The interrogation became intense and focused on two things: Revealing to them how they track down my parents presumed of having taken part in the 8th of March 2014 MSD meeting and clarifying my personal involvement with the MSD.
22. The questioning moved from asking questions to beating and torturing me in order to get the information they needed out of me. The torture consisted in tying my arms backwards with a rope, tying my legs at the knee level, burning my lower thighs with a burning plastic paper and continuously beating me all over the body. I started bleeding at my knee and arms joints. My screaming could not stop them from inflicting me pain.
23. The scars on my [body] are the result wounds sustained during the torture process.
24. Since I knew nothing about the 8th of March event, I could not provide them with any information they needed. I did not even know that my father was one of the most wanted criminals in connection with the MSD political party. All what I knew was that my father was [Mr C]'s friend from their childhood. They grew up together in the same suburb of [Suburb 1] and attended the same primary school except that my father, did not get a chance to pursue his secondary education. That was probably due to the fact that he is from the Hutu tribe. History of Burundi will tell you that time, during the regimes led by Tutsis, Hutus had little or no chance of passing the national examination set to decide who moves to secondary school. The administration of that time, which was Tutsi dominated, used a system of writing (I) on a Tutsi examination paper and (U) on a Hutu examination paper to enable the examination officials to identify who was who. Then Tutsi would be given preferential admission to secondary school while Hutus were systematically banned from accessing secondary school. The few Hutus who accessed high school at that time were those who held strong connections with Tutsi families or those who achieved high marks and were admitted just to fill the required available places.
25. But, [Mr C] [maintained] good relationship with my father, despite the ethnic bipolarization which resulted in the October 1993 bloodshed following the assassination of SE Late Melchior Ndandaye, the first elected hutu president elected and invested on 20 July 1993 and harshly assassinated by the army on 21 October 1993.
26. From my brutal questioning, I understood that the situation had nothing to do with what made me flee in 2008. I was faced political matters in relation to [Mr C’s] [activities] during the political party's meeting. [Details deleted]. Further to that situation, [Mr C] was hunted down by the police and the Burundian Intelligence agents. He managed to flee the country but all those who attended the meeting of whom my father all those affiliated with the MSD were arrested, tortured and jailed and many of them are still awaiting to be sentenced.
27. I came to realise later on that the ruling party ordered the police to hunt and arrest any member of the youth affiliated with the MSD. For them, being a Hutu and adhere to a party led by Tutsi is compared to being a traitor.
28. From the time I was being tortured, I understood that my MSD membership card will put me in serious troubles. After torturing me, the senior officer instructed that my belonging be searched with hope that they would discover any information that could lead them to finding my father' whereabouts. All what they could find was my MSD membership card. As I expected, that discovery made my life a hell. The beating which was interrupted during the search was resumed with such an intensity that I thought I was going to die.
29. After noticing that I held no information what so ever in relation with the 8th of March 2014 event and my father's whereabouts, I was then charged with affiliation with the MSD and notified that I was going to be taken to prison, where other youth members of the party were held.
30. I asked the officer to give me a chance to help them find my father and hopefully arrest [Mr C]. I was lucky to get the officer to agree with my suggestion. However, I was told that my release will have to meet some serious conditions. I was ready to sign any paper which would get me out of their hands.
31. It is in that process that the following conditions were drafted and handed to me to sign. The document drafted stated the following:
"I, [name], born on [date] in [Suburb 1], Bujumbura city, of [parents’ names]:
• After being found member of the MSD,
• Considering that my father [was] one of the influential members of the MSD and [staff] of [Mr C], [an official] of the MSD,
• Considering that [my father] is suspect of having helped [Mr C] to flee the country after his attempt to overthrow the elected president,
• Understood that [my father] is wanted by the police for his involvement in the event of the 8th of March 2014.
• Requested to be temporally released and agree to abide to the conditions stated below:
a. I agree to reside at our place of residence situated at [address in Suburb 2], Bujumbura
b. I will assist the police in finding my father's whereabouts
c. I will not leave the country and will not move out of the capital city Bujumbura without notifying the police
d. I will ask for a special permission each time I will need to leave my house
e. I am prepared to provide the police and the court of law with any information regarding my father's involvement in the MSD and specifically the incident of the eh of March 2014.
Failure to comply with the above-mentioned conditions will result in life imprisonment Signed [name].”
32. After signing the paper, I was released at about 5.00 pm and ordered to go immediately to my father's residential address, in [Suburb 2], Bujumbura. I caught a taxi which drove me straight from Bujumbura International Airport to our place, [address in Suburb 2], Bujumbura City.
33. When I arrived, I was surprised to find out that all doors were locked. No one was at home all seemed to indicate that there hasn't been anyone around the house for quite a considerable length of time. I did not know what to do next. Although I thought about going to other people's house, I remembered that my release conditions prohibited me from leaving my house without the police's permission. I knew that deciding otherwise would probably cost me my life or lead me to serious trouble. So, I resolved to use the balcony of the house as my place to live, while awaiting for someone, either my parents or the employee to show up and let me in.
34. At the beginning, I couldn't stop thinking that my parents were somewhere around and would come back soon. But the longer I waited the more I lost hope. Late in the evening, I realized that no one was due to be home soon. I did not know what to do since neither my dad, nor my mum, could not be reached on phone. The message I received when I tried to call them was: "The number you have called is no longer.
35. About 9.00 pm, I heard someone knocking at the gate. I went to check who that would be. It was one the neighbours named [Mr D]. He is a good friend of ours since the time we moved to that suburb. He told me that he generally keep an eye on the house to see if any intruder may attempt to get in. He saw me sitting alone in front of the house. He also told rrie that my parents went to hiding after the 81h March 2014 incident. They are wanted by the police. They were lucky to escape. If you want, you can either stay at my house or I can try to contact the house watchman who seems to hold your house key. But be careful, this house is regularly monitored by the police informants. If you put the light on, the police will be informed and they will come straight away, [Mr D] added. Then [Mr D] called the watchman who came right almost 15 minutes later.
36. I then told [Mr D] my encounter with the police at the airport and the conditions of my release. We both came to the conclusion that it would be relatively safe for me to stay in the house rather than going to my neighbour's house. He instructed however that putting the lights on will attract the attention of the informants who have been assigned the task of keeping an eye on the house and let the police know in case the owner of the house comes back. After accessing the house, I went straight to my room and fell deeply asleep. I was very scared but extremely exhausted. [Mr D]'s employee brought me some food which I took to my room and ate before falling asleep.
37. I woke up early in the morning, I could hardly have a shower as my legs and arms were full of swollen wounds. I managed to clean the wounds with warm water, dressed up and sat in the living room, trying to figure out what I should do next.
38. [Mr D] came to check at about 8.00 am in the morning. I tried to convince him to put me in touch with my dad but he replied to me that he does not know how to contact him. He can only wait for my dad's call which could show that the caller ID was not available. [Mr D] promised to let my dad know that I am back home and that I have been put under house arrest.
39. Later in the afternoon, at about 4.00 pm, I saw a police car with five police officers on board, coming over to my place. I tried to lock myself inside the house but the police managed to unlock the door and got in. I was once again beaten and dragged out of the house by two police officers while three others were searching the house. They were convinced that my dad has come back and was hiding inside the house. I explained to them that the house watchman came to insure the house was safe and gave me access to the house and left.
40. After realizing that my dad was not there, they left, reminding me to stick to the conditions as stated in the letter of release that I signed. In the meantime, lots of neighbours were all around the house, witnessing what happening. Some believed on a raid to arrest my father, that's why they called a journalist to come to report how the arrest was unfolding.
41. [Mr D] was one of those people who witnessed the brutality of the police against me. When everyone left, he approached me extremely frightened by what he witnessed and suggested that I leave the house and go to stay somewhere the police would not find out. He asked me if I knew anyone living in another suburb who could give me a place to stay. I told [Mr D] that I could go to stay with my aunty [named] who lived in [another] Suburb.
42. Later in the evening, around 8.00 pm, [Mr D] called [my aunt] and asked him to come over to my dad's house, without letting him that I was there, or telling him what happened to me. He then went to meet with her, a distance away from my house, to avoid any suspicion that someone was paying me a visit. He came back and indicated to me that [my aunt] was waiting to take me with her. [Mr D] told me no to worry about locking the house. The watchman would come around and would lock the door since he held the key.
43. I picked up my luggage walked slowly to where [my aunt’s] car was parked. We drove to her [house]. I did not even enter her house. Another man, [Mr E], a very good friend of theirs, was waiting to take me to his house. Actually, [my aunt] explained to me on our way to her house that, since she is an immediate member of our family, it would not be safe to stay with them. That's why they decided to get me to stay with someone to whom I was not related to at all.
44. [Mr E] took me to his house in [a] suburb located nearly [distance] km away from the city centre, South of the city centre. I was instructed to remain inside my room. I was only allowed to watch TV and use the internet. [Mr E] confiscated my phone, explaining to me that he has not trust in my ability to strictly follow his clear instruction consisting in avoiding making or receiving any phone calls.
45. A few days later, I asked [Mr E] whether he has heard from my dad. He replied to me that my dad was aware of my situation but could not take the risk of engaging any direct conversation with me. [Mr E] also told me that they told my dad about the document I signed outlining the conditions of my release and was concerned that once I might trade him against my freedom. He also explained to me that my dad has a wide network of friends who are trying to find ways of getting out of Burundi.
46. Nearly a month later, a man called [Mr F] came to see me. He explained to me that my father has assigned him a very difficult task to smuggle me out of Burundi. He then waited for a while and received a phone call, which was from my dad. [Mr F] told me that my dad wanted to talk with me. Without even say hi, he summed me to listen carefully to him. Then he said: "I am aware of the situation you are going through. So, I have assigned [Mr F] to help you to get out of Burundi as soon as possible. Follow his instructions and do as he will tell you. Don't worry about your mum and I, we are safe, we will contact you as soon as we get out of this situation" he concluded and hung up before I even get a chance to say something.
47. [Mr F] explained to me that the first step was to obtain a new passport. So he took some photographs and left.
48. Three days after, he came back to see me with a passport and an ID photo. That was exactly on Thursday [date] of May 2014.
49. [Mr F] then asked me to provide him with my email address and told me that he will come back in a few days but urged me to be patient. "This process could take days or even months"; he explained to. He also instructed me not to make any attempt to go outside at all.
50. Two weeks after, on Friday [date] of May 2014, [Mr F] came back to see me. He presented me with an Australian visa application form which he asked me to fill out and sign. I did as I was told and with his help, I completed and signed the form which he took and left; after instructing me to keep an eye on my emails.
51. On [date] June 2014, I was surprised to receive an email from the Australian department of Immigration informing me that they have received my visa application and that they will let me know the outcome of my application soon.
52. On [date] of June 2014, an email to which was attached the visa was sent to me. From that time, I started to nourish hope that I would be able to leave Burundi, thanks to [Mr F]'s hard work. But, the question remained in my mind: How on earth was I going to go through the immigration at the airport? How was I going to get money to buy a ticket to Australia?
53. A week later, [Mr F] came back with the answers to all my queries before even I get to ask him. On his arrival, he presented me with an air ticket. Then he explained to me that he is aware of my fear in regard to the Immigration officers at the airport. [Mr F] then assured me that the whole process has been planned carefully, and that [Mr E] will accompany me through the airport and will not come back until I have boarded on to the aircraft.
54. The ticket indicated that my flight was scheduled on Tuesday 1st of July 2014. [Mr F] told me that the date of 1st of July was carefully chosen for good reasons. The 1st of July is the Burundian Independence Day. It is celebrated with vibrancy and extreme enthusiasm across all the country. Lots of services are loosely looked after as most of the authorities, service managers and most of the senior staff are required to attend the ceremonies. So the airport is no exception to that situation and people in charge are junior Immigration Officers who normally have little knowledge of important security files.
55. [Mr F] wished me good luck and told me that [Mr E], who according to [Mr F] was a former high ranking immigration officer will be able to get me through the airport with little or no trouble at all.
56. On morning of 1st of July 2014, I woke up and packed my luggage. At that time, [Mr E] was out. He came back home almost an hour before heading to the airport. He explained to me that he went to the airport to sure the airport staff do no cause me any trouble.
57. We left home at about [time] as I was due to report to the airport at [time] for a [time] X [name] Airlines' flight.
58. At the airport, after the luggage check, [Mr E] took my passport and asked me to follow him. I could see him putting little dollar notes in the passport, each time he presented it to an officer. The first one was offered US$[amount] for checking my luggage in and sighting my documents and providing me with boarding passes. The second officer grabbed another US$[amount] for letting me through and the last one grabbed $[amout] out of my passport while checking my carry on and letting me through the scanner.
59. [Mr E], who was still standing there to insure everything goes as planned, went upstairs, where generally people accompanying their relatives go to watch them boarding. I could hear him say to me when I was walking towards the plane: "Good luck my son" I will let your family know that you crossed the airport safely.
60. I was relieved to finally manage to survive so many days hiding from the police which had the intention to prosecute me for a crime I did not commit. I never understood how someone can be victim of a situation which took place while he was away; simply because their parents are suspect to have taken part in it.
61. The long stay at [Mr E]'s house enabled me to get the wounds I sustained during the two occasions was questioned by the police to heal. But I still have scars and a frequent pain in my back which I never had before. It my strong belief that my back pain was due to torture I went through. Thinking about that increases my fear of returning back home.
62. My travel to Australia went through [different countries] and I arrived in [City 1 in Australia] on [date] of July 2014 at 1.00 pm.
63. During the flight from Bujumbura, I met a Burundian woman who had a 3 month old baby. During the entire travel, we were sitting together. I often helped her with her luggage while she carried her baby. She told me that she was married to an Australian Citizen. While the woman held a Burundian passport, her child had an Australian passport.
64. At [City 1] airport, the Burundian woman asked me to carry her baby as she had very havy luggage and mine was very small. She asked me to take her baby through the Australians exit. An Immigration officer realized that I was holding a child of Australian descent, checked my passport quickly and let me to go through straight away. After passing the Immigration, I discussed with that lady my situation and she told me that she would be happy if we continued the trip to [City 2 in Australia] together. The idea of going to [City 2] [was] long burning inside me. I then decided to buy a ticket from [City 1] to [City 2] but unfortunately, I could not get a seat in the same plane.
65. I took the plane from [City 1] to [City 2] at 8.00 pm and flew straight to [City 2]. I was hoping to reconnect get in touch with that Burundian woman once I got to [City 2] but it did not happen.
66.1 took a taxi straight to [a landmark]. That's the only place 1 knew. 1 spent the night in the park and spent a whole week homeless, spending all days and nights wondering around the [landmark].
67. After a week not knowing where to go and what to do, I saw a Black African man that I approached. I was luck he was able to understand French. I explained to him that I was an asylum seeker but didn't know where to go. He took me in his car, drove the [welfare agency], and left me there. 1 tried to ask him his name but refused to tell me, justifying that he did not want anything to do with my situation. 1 thank him and walked to the Centre where I was accepted and offered a place to stay.
68. The [welfare agency] provided me with a social worker who took me through the whole process of applying for asylum, told me everything I needed to do in order to manage my life while 1 prepare and submit my application for asylum.
69. After more than 4 months living in [City 2], I came to the decision that [City 2] was too big and too confusing for me. I looked the city which would be small enough for to get around easily and thought of [another city].
70. While I am still trying to find my way in this beautiful and peaceful country, I have not yet recovered from the ordeal that I went through. The fear of returning home hunts me every day of my life. Here are the reasons why I fear to return home:
a. I have no doubt that my name is held at the airport and any attempt to return home will be synonym of giving myself up to the police for a crime that I did not commit. With the current situation, the possibility of my mysterious disappearance is extremely high, at this time that hunt for members of the rebel groups is the daily preoccupation of the government
b. The search for my father will not stop until he is found. Any return would mean that I would have to pay for what my father is accused of.
c. Having managed to break the agreement I signed will make the situation more complicated than ever before. If 1 am caught, 1 will have to face prosecution with the risk of being killed
d. As a young Hutu, militant of a political party led bi a Tutsi suspected of planning a Coup d'Etat will put in a situation in which I could either be killed by Hutu militias (lmbonerakure) or face prosecution like many young members of the MSD.
e. The Senior official of the CNDD-FDD, especially high ranking army officers have a reputation of killing opponents in order to misappropriate their belongings. Since my father is nowhere to be found, returning to Burundi will make me the target of those who have the reputation to kill other in order to misappropriate their belongings.
f. The hatred between Hutus and Tutsis keeps increasing. At the same time, all the militants of all opposition parties are daily intimidated and secretly assassinated. Being one the rare young Hutu, born in the [Suburb 1], known as the stronghold of the young supporters of the the ruling party places me on the forefront of the target of the hutu militia and the police.

The applicant submitted a number of untranslated documents in support of his protection visa application. These documents included a copy of an email in the Kirundi language, purportedly sent to the applicant from [Mr F] [in] May 2015; two summonses issued by the Burundian authorities in the French language; two death certificates in the French language and a letter from Mouvement pour la Solidarite et la Democratie (MSD) in relation to the applicant in the French language.
The interview
The applicant was invited to attend an interview with the delegate. However, he did not attend the interview.
The delegate’s decision
The delegate refused the application under review [in] December 2015.
Application for review
The applicant applied for a review of the delegate’s decision.
On 6 April 2016, the applicant submitted an untranslated letter in the French language from a [Mr G], dated [February] 2016. The applicant also submitted two images, depicting two gravesites in a cemetery.
On 3 September 2017, the applicant submitted an amended version of his statement of [May] 2015. The amendments, however, were minor and did not substantially alter the applicant’s earlier statement or the nature of his claims.
On 18 October 2017, the Tribunal received certified translations of the two death certificates and the letter from [Mr G]. The applicant also submitted copies of two photographs. One photograph shows the applicant with his hands behind his back and a person in Burundian police uniform holding onto his trousers. The second photograph shows the applicant lying face down on the ground with the same policeman bending over him with a raised arm holding a baton.
The applicant appeared before the Tribunal on 19 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages.
At the hearing the applicant submitted to the Tribunal an opened postal satchel sent from [Country 3], an MSD membership card and photographs depicting scars he claimed to have sustained as a result of the mistreatment directed at him in Burundi.
On 31 October 2017, the applicant sent an email to the Tribunal, stating that he had been unable to contact the person who had helped him contact [Mr G] via [social media]. He also stated that he required further time to contact [Mr F]. Attached to the applicant’s email was an untranslated letter from [Mr G], dated [October] 2017. No translation was forwarded by the applicant.
On 11 November 2017, the applicant wrote to the Tribunal, advising that he had been unsuccessful in contacting [Mr F].
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations 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).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of 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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Border Protection–PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, the unpersuasive nature of some key aspects of his claims and other reasons detailed below.
Contact with family
The Tribunal found the applicant’s evidence in relation to his contact with members of his family highly problematic. The applicant told the Tribunal at the hearing that he has [siblings]. When asked the age of his brothers, he said he did not know, because he has not been in contact with them. When pressed, he stated he has not been in contact with his family for a long time. When pressed again, he said he was [older] than his brothers. As it was put to the applicant at the hearing, he had resided with his family in Burundi until 2008 when he departed for [Country 1]. He was [age] years old at that time. The applicant is not illiterate or innumerate. The Tribunal considers it highly implausible that he has no knowledge of his brothers’ ages. The Tribunal found the applicant’s evidence in this regard vague and evasive.
The Tribunal also asked the applicant about his uncles and aunts at the hearing. He told the Tribunal that he only has a [aunt]. When prompted to provide further information, he said when he was in Burundi, his aunt was also in Burundi. The applicant went on to claim that he was not in contact with his aunt. When asked why, he said he did not know her very well. In the statement submitted in support of his application for a protection visa (the statement), the applicant had claimed that his aunt had assisted in arranging his [visa]. The applicant had also claimed in his statement that, in 2014, he had made contact with his aunt, who arranged for him to stay at a location other than his house in order to hide from the authorities. This information was put to the applicant at the hearing. He responded that this was the extent of his contact with his aunt and he had not stayed with her in Burundi. The Tribunal noted that he must have known other people who could have put him in contact with his aunt to enquire about his family. It was put to him that his evidence regarding his contact with aunt appeared to be evasive. He responded that he understood the Tribunal’s concerns, but he and his aunt never had that connection. Later in the course of the hearing, the applicant was asked how he had been able to contact his aunt in Burundi in 2014. He said he had asked a neighbour, [Mr D], to contact her on her telephone number. The applicant stated that he was in possession of aunt’s telephone number the entire time, having memorised the number in his ‘head’. When asked why he had not personally called his aunt at any time following his departure from Burundi, he said they are not close.
The Tribunal put to the applicant that he had been informed in Australia that his parents had passed away under mysterious circumstances. He was asked why he had not contacted his aunt to seek more information. He said the only person he wanted to contact was [Mr F]. However, the only evidence of contact with [Mr F] the applicant could produce was the untranslated email from [Mr F] to the applicant’s email address, dated [May] 2015. If the only person he wanted to contact was [Mr F], the Tribunal considers it odd that he could not produce further evidence of contact with [Mr F], including emails authored by the applicant, or any other emails from [Mr F] over the past three years. The Tribunal also considers it odd and highly unusual that, after the applicant was given news of his parents having passed away, he had made no attempt at all to contact his aunt for any further details or information about his younger siblings, despite having memorised his aunt’s phone number. After all, even though he claimed he was not close to his aunt, she had been prepared to assist him every time she had been asked to do so. The Tribunal found the applicant’s evidence in this regard highly implausible, improvised, unreliable and self-serving.
Condition of release
In his statement, the applicant claimed that, following his arrival in Burundi in March 2014, he was held at the airport and mistreated. He stated that he was subjected to mistreatment because the authorities wanted information about his father. He also claimed that, before he was released, he had to sign a document containing the conditions of his release. The applicant quoted the contents of this document in full in his statement (see paragraph 31 of the applicant’s statement). The applicant was asked at the hearing if he had a copy of the document he had signed. He said he signed the document and gave it back to the authorities at the airport. When asked how he has been able to quote the document verbatim, he said they initially drafted the document, which he tried to memorise. When pressed, he said, after they beat him up, they came back and repeated the contents of the document. The Tribunal reminded the applicant that he had claimed in his statement that he was ‘brutally’ questioned, beaten, forced to stay awake all night and tortured for many hours. He was asked how he had managed to memorise the contents of the document verbatim. He responded that he could not forget what they had asked him to sign. The Tribunal finds the applicant’s evidence in this regard unpersuasive, far-fetched and fanciful. The Tribunal considers it highly unlikely that the applicant was unable to recall the age of his brothers but he had also an eidetic memory enabling him to memorise the document in full.
Leaving the family home
In his statement, the applicant claimed that, after signing the document, he was released and ordered to go immediately to his father's residential address. The applicant gained access to his father’s house with assistance from [Mr D], who warned him that the house was under surveillance by ‘informants’. On the following day, a police car with five police officers on board arrived at his house. The applicant was beaten and dragged out of the house by two police officers while three others searched the house for the applicant’s father. Many neighbours gathered around and some called a journalist to come to report how the arrest was unfolding. Once everyone had left, the applicant told [Mr D] that he might be able to stay with his aunt. That evening, [Mr D] called the applicant’s aunt and asked her to come to the applicant’s house. The applicant claimed that [Mr D] then went to meet with the applicant’s aunt, who had parked some distance away from the house to avoid any suspicion. He then returned and indicated to the applicant that his aunt was waiting to take him with her. The applicant picked up his luggage and ‘walked slowly to where his aunt’s car was parked’. They then drove to her house.
At the hearing the applicant was asked how he had left his house in order to be transported away by his aunt. He responded that he had exited his house through the back door. His aunt brought her car, he jumped in and they drove away. The Tribunal put to the applicant that, according to his statement, the house was under surveillance and that the authorities had hoped to reach his father through him. He was asked how he was able to leave his house without being detected. He said he had seen people going past his house, but he did not know if they were police or militia. When the Tribunal queried his response, he said he exited through the back and that is how he managed to leave. The applicant did not explain why he had not made any mention of leaving through the back door in his statement. The Tribunal considers the applicant’s account unpersuasive and implausible.
[Mr G]’s letter
At the hearing, the applicant reiterated that following his release from the airport and before he was driven away from his home by his aunt, the police visited his house and mistreated him. He told the Tribunal that when the neighbours witnessed the brutality, they called a journalist, who happened to be [Mr G]. He said [Mr G] had witnessed the incident. He also said, whilst he saw [Mr G] on that day, at that time he did not know he was a journalist. As it was put to the applicant at the hearing, the contents of the letter of support, purportedly authored by [Mr G], do not support his version of events. In his letter, [Mr G] stated the following:
I have the honour to lodge an appeal with your high authority to inform you of the atrocities committed by elements of the National Police of Burundi (PNB) against [the applicant]. As a journalist, [I] was alerted by his neighbours in [Suburb 2] and saw the damages caused by the beating…
Having recently returned from [Country 1] where he lived for the last few years, [the applicant] will be quickly arrested by the police, for reasons not yet clarified. But everything suggests that this young man was a victim of the political affiliation of his family to the opposition. What is revolting in this arrest, which became commonplace in Burundi, are the beatings and other inhuman and degrading treatments inflicted to [the applicant] in front of his family and his neighbours. And this in full lights of all passers-by…
After this series of beatings with baton and stick of an AK-47 most likely loaded, [the applicant] was embarked by the police to an unknown destination. Later I learned that he managed to flee and that he is no longer in Burundi…
The contents of [Mr G]’s letter were put to the applicant at the hearing. The Tribunal noted that, given [Mr G]’s credentials as a journalist, the letter is bereft of any details regarding the applicant’s father’s political affiliation. The letter merely refers to the applicant being ‘a victim of the political affiliation of his family to the opposition’. The applicant responded that [Mr G] was there when the incident happened. After he came to Australia, he read an article from [Mr G] and he got in touch with him. When asked how he got in contact with [Mr G], he said through [social media]. When asked if he had used his own [social media] account to make contact, he said he had used someone else’s account. The Tribunal had concerns in relation to the applicant’s evidence regarding how he had managed to contact [Mr G]. At the hearing the applicant was asked if he could produce evidence of his contact with [Mr G]. In an email received by the Tribunal after the hearing, he stated the friend who had helped to contact [Mr G] through his [social media] account is no longer in Australia. ‘Her’ name is [name deleted] and she was studying at [University].
The Tribunal noted at the hearing that [Mr G] had stated in his letter that he had seen the applicant being taken away by the police ‘to an unknown destination’. It was put to the applicant that this was inconsistent with his own narrative of events on that day. The applicant responded that when the police arrived at his father’s home, he was pushed out, beaten and put in a pick-up truck and they took him ‘somewhere’. When asked where he was taken to, he said he did not know. As it was put to the applicant, this account was inconsistent with the contents of his statement, as well as his earlier evidence to the Tribunal. The applicant stated that he was taken somewhere and when he returned he decided to leave his father’s house. The Tribunal finds the applicant’s evidence improvised, and unreliable. The Tribunal is of the view that the applicant has shifted his account of his experiences to overcome the problematic inconsistencies between his claims and the contents of [Mr G]’s letter. The shifts and changes in the applicant’s evidence cast serious doubt on the credibility of his claims.
The photographs
Prior to the hearing, the applicant submitted copies of two photographs. One photograph shows the applicant with his hands behind his back and a person in Burundian police uniform holding onto his trousers. The second photograph shows the applicant lying face down on the ground with the same policeman bending over him with a raised arm holding a baton. No other persons can be seen in either photograph. In both photographs, the applicant is missing a shoe. However, his clothes appear to be clean and in pristine condition. The applicant’s face does not show any signs of injury or trauma consistent with the ‘beatings’ and ‘torture’ he claimed to have endured a day earlier. The uniformed person accompanying the applicant is unarmed and not in possession of an ‘AK-47 most likely loaded’ as referred to in [Mr G]’s letter. Both the applicant and his captor appear to be unperturbed. Upon carefully viewing the photographs, the Tribunal formed the distinct impression that they were staged. This was put to the applicant at the hearing. The applicant responded that he had spoken to a solicitor at the time of lodging his application for a protection visa and the solicitor had also told him that the photographs were not real. When the Tribunal again pointed out that the photographs were highly unpersuasive, he said his solicitor had also expressed disbelief and told him that the photographs were not real. Furthermore, the applicant told the Tribunal that the photographs were taken by a neighbour and sent to him via WhatsApp. He stated that the photographs were in his possession ‘the whole time’, but he had decided to provide them to the Tribunal. The Tribunal did not find the applicant’s explanations satisfactory or persuasive. The Tribunal has serious doubts in relation to the bona fides of the photographs. The Tribunal is of the view that the photographs do not depict real events and that they were staged and manufactured to strengthen the applicant’s claims for a protection visa.
The death certificates and more photographs
The applicant submitted to the Tribunal certified translations of the two death certificates relating to his parents. The first certificate, dated [May] 2015, stated that [the applicant’s father] had died [in] May 2015 in Bujumbura. The second certificate stated that [his mother] had died [in] June 2015 in Bujumbura. The applicant told the Tribunal that his parents had passed away in 2015. He said he did not know the cause of their deaths, but there were rumours that they had been killed. He stated that he had found out about the deaths through an email from [Mr F].
On 6 April 2016, the applicant submitted copies of two images, depicting two gravesites in a cemetery. The applicant also submitted an untranslated letter in the French language from a [Mr G], dated [February] 2016. At the hearing, the applicant was asked who had provided him with the two photographs. He responded the photographs were sent to him by [Mr G], a journalist. When asked if he knew [Mr G], he said he did not know him and that the photographs had been sent to him from [Country 3]. The applicant provided the Tribunal with an opened postal satchel. The information on the satchel indicated that the package had contained ‘photos’ and that it had been sent to the applicant from an address in [Country 3] in February 2016. When asked how [Mr G] had obtained his address in Australia, he said it had been provided to him by [Mr F]. The applicant then stated that he had given his address to [Mr F] via WhatsApp on his phone. When asked to produce the messages, he said he has changed his telephone many times and he no longer is in possession of the messages. The Tribunal noted that the images appear to be printouts and asked him why [Mr G] had not simply provided him with copies electronically. He said [Mr G] had sent them to him by mail. When asked if [Mr G] resides in [Country 3], he said no, but [Mr G] had used a messenger to send him the photographs by mail from [Country 3]. The Tribunal noted that a name other than [Mr G]’s name appears on the envelope as ‘sender’. He was asked how he knew [Mr G] had sent him the photographs. He said [Mr G] sent him a WhatsApp message to explain. When asked to produce the message, he said he had lost his phone. At the hearing the applicant asked the applicant if he was able to contact [Mr F] to obtain further supporting evidence. Following the hearing, the applicant wrote to the Tribunal, stating that he had ‘tried to look for [Mr F] to help me but it was hard to get it’. The Tribunal found the applicant’s evidence and explanations in relation to how he had obtained the photographs unpersuasive, opaque and undependable.

The Tribunal's concerns are exacerbated by the inconsistencies in the information contained in the photographs and the information in the death certificates regarding the date of the passing of each of the applicant’s parents. According to the death certificates, the applicant’s father had died [in] May 2015 and his mother had died [in] June 2015. However, according to the photographs, the date of death recorded on the applicant’s father’s gravestone is [date] May 2015 and the date of death recorded on the applicant’s mother’s gravestone is [date] June 2015. When this discrepancy was put to the applicant, he stated that the date of death is different to the date of burial. However, the acronym DCD, which stands for décédé (French for deceased),[1] precedes the dates recorded on both gravestones. The Tribunal has serious concerns in relation to the authenticity of the photographs, the death certificates and the applicant’s evidence in relation to the alleged death of his parents.
Convocations
[1] See Djordjević, Svetolik P Dictionary of medicine : French-English with English-French glossary = Dictionnaire de médecine : français-anglais avec glossaire anglais-français (2nd rev. ed). Schreiber Pub, Rockville, Md, 2004.
In support of his application for a protection visa, the applicant had submitted to the Department two summonses issued by the Burundian authorities in the French language. The summonses or ‘convocations’ appear to have been issued in March 2014 and April 2014. Both documents appear to be templates or forms, where certain information has been entered in handwritten form. Both documents contain the following departmental letterhead:
REPUBLIQUE DU BURUNDI
MINIOSTERE (sic) DE LA JUSTICE
PARQUET DE LA REPUBLIQUE
EN MAIRIE DE BUJUMBURA
The Tribunal noted at the hearing that ‘Ministère de la Justice’ in the letterhead has been misspelt as ‘Miniostere de la Justice’. The applicant was asked why an official summons template would contain such an obvious error. The applicant stated that he was in Australia when he received the documents and he was also surprised. When asked how he had obtained these documents, he said [Mr G] had sent the documents to him via WhatsApp. He was asked why the photographs were sent to him through mail from [Country 3] and these documents were sent via WhatsApp. He said he did not know and perhaps it was expensive to mail them. The applicant was asked how [Mr G] had received these documents. His neighbour had passed them on to [Mr G]. The Tribunal finds these explanations unsatisfactory and is of the view that the documents produced by the applicant are fraudulent and were manufactured for the purpose of strengthening his case.
The applicant submitted to the Tribunal an MSD membership card, purportedly issued in December 2012. The applicant stated that the card was issued in Burundi and brought to him by a friend when he was in [Country 1]. He carried the card with him when he travelled to Burundi and subsequently to Australia. The applicant was asked at the hearing why he had not submitted a copy of the card to the Department at the time of making his application for a protection visa. He stated that he had mentioned to his lawyer that he had a membership card, but he was advised to submit the card at a later point.
In his application for a protection visa, lodged [in] August 2014, in response to a question as to whether he had received assistance with his form, the applicant had ticked a box next to ‘yes’. However, he did not provide details of the person who had assisted him. [In] September 2014, the applicant signed a Change of address and/or passport details form (Form 929). That form was accompanied by a copy of a business card for [his migration agent]. There is no other information in the applicant’s records to suggest he was ever represented by a solicitor or a migration agent or to indicate the level of assistance he might have received from anyone.
The Tribunal put to the applicant at the hearing that he was not represented by a lawyer or a migration agent in connection with his application for a protection visa. He stated that he completed his application for a protection visa at the [welfare agency] and he was subsequently told to go to [the migration agent]. The Tribunal noted that in his application form he had indicated that he would provide police documents and his membership card later. However, whilst he had submitted to the Department the convocations, he had not provided his membership card. He stated that the solicitor he had spoken to had advised him to present the card in person. When it was again put to him that he was not represented at the time of making his application for a protection visa, he stated that he saw many people at the [welfare agency] and they asked him to produce his membership card, but he could not produce it on the spot. The Tribunal noted that he had lodged his application for a protection visa in August 2014 and approximately one year later he submitted other documents in support of his application. These documents, however, did not include his membership card. The applicant stated that he did not have the card when he was assisted by the solicitor. The Tribunal found the applicant’s evidence in this regard evasive, vague and unpersuasive. The applicant was unable to provide a satisfactory explanation as to why he had not submitted his MSD membership card, a potentially significant document, to the Department or to the Tribunal at any point prior to the hearing.
Moreover, it was put to the applicant at the hearing that the country information before the Tribunal indicates that MSD membership cards were issued before the 2010 elections and again in 2013.[2] As it was put to the applicant, his card was issued in 2012. He responded that he was not sure as to why his card was issued in 2012. He had stayed in contact with his father who was able to provide him with the card. The Tribunal finds the applicant’s explanations unsatisfactory. The Tribunal finds the applicant’s evidence regarding his membership card dubious and unreliable. The Tribunal does not accept that the applicant was in possession of an MSD card in Burundi or at the time of his application for a protection visa. The Tribunal is of the view that the membership card is a fraudulent document manufactured for the purpose of strengthening his case.
[2] Canada: Immigration and Refugee Board of Canada, Burundi: Movement for Solidarity and Democracy (MSD), including its structure and membership card; participation at the meeting organized by the Frodebu party on 18 November 2012; treatment of the party and its members by the authorities (2010-January 2013), 22 February 2013, BDI104286.FE, available at: >
For all the above reasons, the Tribunal did not find the applicant to be a credible and truthful witness. The totality of his evidence shows a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose. The Tribunal does not accept that the applicant was a member or a supporter of MSD. The Tribunal does not accept that the applicant was in any way associated with the MSD in [Country 1] or in Burundi. The Tribunal does not accept that the applicant was in possession of an MSD card when he returned to Burundi in 2014. The Tribunal does not accept that the applicant’s father was a member or supporter of the MSD. The Tribunal does not accept that the applicant’s father was employed by [Mr C] as his [staff] or in any other capacity. The Tribunal does not accept that the applicant’s father or any other member of his family was employed by or associated with [Mr C] or the MSD. The Tribunal does not accept that the applicant was detained, questioned, beaten, tortured or mistreated in any way upon his return to Burundi from [Country 1] in April 2014. The Tribunal does not accept that he was released by the authorities after he signed a document attaching conditions to his release. The Tribunal does not accept that, during his stay in Burundi, members of the applicant’s family were in hiding or that he did not have contact with his parents, siblings and other members of his extended family. The Tribunal does not accept that the applicant was again questioned, mistreated or detained by the police when he was at his home in Burundi. The Tribunal does not accept that the applicant had left his house and had spent a period of two months in hiding, before his departure from Burundi. The Tribunal does not accept that the authorities had any interest in the applicant or that they had issued summonses in relation to him. The Tribunal does not accept the applicant’s account of the arrangements relating to how he had obtained an Australian visa and how he had managed to depart Burundi. The Tribunal does not accept the applicant’s account of his parents’ passing away. The Tribunal finds that the applicant’s account of his experiences in Burundi is a fabrication designed to achieve an immigration outcome. The Tribunal finds that the MSD membership card, the purported letter of support from the MSD, the summonses, the death certificates, the purported letters from [Mr G] and the purported email from [Mr F] are not genuine documents. The Tribunal rejects these documents as evidence of the applicant’s claims. The Tribunal finds that the photographs depicting the applicant in the company of a person in a police uniform do not depict real events and that they were staged and manufactured to strengthen the applicant’s claims for a protection visa. The Tribunal finds the images purportedly depicting the applicant’s parents’ gravesites are not genuine and that they have been manufactured to strengthen the applicant’s claims for protection.
At the hearing, the applicant submitted to the Tribunal copies of photographs depicting scars he claimed to have sustained as a result of the mistreatment directed at him in Burundi. The scars, however, depict healed, minor, old [wounds]. Whilst the Tribunal accepts that the applicant has scars on some parts of his body, the Tribunal is not satisfied that the scars are the result of any injury he claims to have received as a result of any mistreatment by anyone.
With regard to the applicant’s claims in his statement that he departed Burundi in 2008 due to allegations of homosexuality levelled against him, the applicant expressly told the Tribunal at the hearing that he is not homosexual, he has no concerns or fears in relation to the allegations made against him by [Mr A] some 10 years ago and he has no fear of harm arising from any imputations regarding his sexual orientation or any alleged past sexual conduct.
After considering the totality of the evidence before it, the Tribunal does not accept that the applicant has been seriously harmed for a Convention reason in the past or that there is a real chance that he would face serious harm in Burundi for the reason of his political opinion, race, religion, nationality or membership of any particular social group, including his family, homosexuals in Burundi or any other social group apparent on the face of the evidence. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
For the reasons outlined above, the Tribunal has rejected the claims. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burundi, there is a real risk that he will suffer significant harm for the reasons he has provided. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burundi, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Shahyar Roushan
Senior Member

[2018] AATA 574

19 February 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction