1612681 (Refugee)

1612681 (Refugee) [2019] AATA 3278 (30 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1612681
COUNTRY OF REFERENCE:                   Burkina Faso
MEMBER:Luke Hardy
DATE:30 July 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 July 2019 at 12:54pm
CATCHWORDS
REFUGEE – protection visa – Burkina Faso – imputed political opinion – Congress for Democracy and Progress – witchcraft – feared harm from sorcerer uncle – inconsistent evidence – credibility issues – no real chance of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081
Randhawa v MILGEA (1994) 52 FCR 437
Sun v MIBP [2016] FCAFC 52
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 on 26 July 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr [A], is a citizen of Burkina Faso. He entered Australia on a Burkina Faso passport containing a [Country 1] permanent residence visa [in] March 2015. He lodged a protection visa application on 5 May 2015 whilst evidently still eligible to enter and reside in [Country 1].
The delegate refused to grant the visa 26 July 2016 on the basis that Mr [A] was caught by s.36(3) due to his not having taken all possible steps to avail himself of protection available to him in [Country 1] (incidentally a signatory to the Refugee Convention) where, on contemporaneous advice from DFAT, he had an existing right to enter and reside and where, in the delegate’s opinion, he was found not to face a real chance of being persecuted, or a real risk of significant harm, or the risk of being réfoulé to Burkina Faso.
Mr [A] sought review by this Tribunal in an application dated 17 August 2916.
Mr [A] appeared before the Tribunal on 9 July 2019 to give oral evidence and present arguments. He was assisted by his advisor, a registered migration agent. The hearing was facilitated by an interpreter in the French-English medium.
On review of Mr [A]’s former DIBP (Department) file, I located a s.438(1) certificate and “Disclosure Decision Checklist” identifying the document at f.60 of that file as a “non-disclosable” on the basis of the information contained in it being “information that would be contrary to the public interest”. In fact, the information in that document, an email, was DFAT’s advice to the Department, as at August 2015, to the effect that Mr [A] evidently had an existing and enforceable right to enter and reside indefinitely in [Country 1]: information that went against his claim to a protection visa at the time but which is now significantly out of date. Since the document was identified as an internal working document by the Department officer who issued the certificate, I find that the certificate itself is invalid.[1] Since the information in the document was relevant to Mr [A]’s substantive claims in this matter, and since it was relied upon by the delegate in reaching negative findings in this matter, I had no hesitation in disclosing its contents to him. I also assured him that the information in the document no longer applied to him because he had been outside of [Country 1] for more than two years and had thus lost a right to enter and reside in [Country 1] that was existing and enforceable.
[1] MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; 243 FCR 1; 155 ALD 98.
In the (almost) three years it has taken for this matter to be constituted in the Tribunal for review, Mr [A], according to DFAT and other sources, lost his previously-existing right to enter and reside in [Country 1] and must now lodge an application with [Country 1] authorities to regain or resume permanent residence in that country[2]. On the face of things, he would very likely be recognised again as a permanent resident, upon processing of an application to have his permanent resident status restored, and on that basis he would have access to protection in [Country 1] but, currently, the evidence indicates that he does not have an existing right to enter and reside there. Hence the question of a right to enter and reside in [Country 1] is moot. He does not evidently have an existing and enforceable right to do so.
[2] [Source deleted].
CRITERIA FOR A PROTECTION VISA
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, he or she 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 because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she is outside the country of his or her former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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 the 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 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”). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues
The main issue in this case is whether, on agreed facts, Mr [A] is entitled to protection in Australia as a refugee or, if not, on complementary protection grounds.
For the following reasons, I have concluded that the decision under review should be affirmed.
Claims
Mr [A] claims to have attended school but not to the completion of [a certain level]. He claims that from the time he quit school he used to help his father with [specific work] in his father’s home village.
In short, Mr [A] claimed to the former Immigration Department that his father, who he described as an active member or supporter of the CDP, the party of Burkina Faso’s former President Compaoré, was killed [in] 2011 by members of “the opposition party” in the capital Ouagadougou during the historic 2011 uprising of striking students and workers; that his father’s killers later set fire to his family’s house, destroying medical records of his father’s death; that his father’s killers set fire to the house because they somehow learned he found out and recognised some of their names; that his mother inherited all of his father’s [specified possessions] back in his father’s home village; that his uncle used witchcraft to cause sickness in his mother so that he, the uncle, could appropriate all the [possessions]; that the same uncle threatened to use witchcraft involving as he put it, “psychological and emotional manipulation”, to kill him if he tried to stay and reclaim the [possessions]. He claimed his mother died in 2012. He claimed he took his wife and [child] to live in her father’s village. He claimed he himself stayed a few months in his father’s friend’s village and then moved to [Country 2] where he worked as a [Occupation 1] for about a year. He claimed he then returned to Ouagadougou for a month during which he was not harmed by his uncle but was located by a group of “opposition party” members who assaulted him but, he said, failed to kill him as they declared they were trying to do, because he escaped. He claimed he returned to his wife’s father’s village and found his family safe there, whereupon he travelled to [Country 1] in April 2013. He claimed he was somehow granted permanent residence in [Country 1], helped and housed by a [man] who eventually evicted him over his failing to provide “sexual relations”. He said the same man also helped him go to Australia because he was not meeting his, the [man’s], sexual needs. It should be noted here that Mr [A] is not claiming a protection visa on the basis of any actual or imputed sexual orientation factors and in the absence of evidence to the contrary I have not treated it as a factor in this case.
Mr [A] said he never applied for refugee protection in [Country 1] because he did not know of any such process. He said he would not like to reside in [Country 1] in any event because he once witnessed a shooting there. He did not suggest that anyone was pursuing him in connection with the shooting; he appeared mainly to suggest that what he saw horrified him and that [Country 1] is generally a violent place.
Of interest to me in this matter, Mr [A] claimed in a statement submitted to the Department in November 2015 that he received a telephone call [in] June 2011 from friends who told him his father had just been attacked at the anti-government youth rally where he had been attacked with stones. He said he rushed to the scene to find that his father had already, i.e., before he arrived, been ambulanced to hospital where he died two days later.
In the same statement, Mr [A] provided somewhat confusing and contradictory evidence about how he came to know who had injured and killed his father. In the first instance, he said that the killers came after him and told him directly that they were the ones who had hit his father. Then, a few paragraphs later, he said that he ascertained their identity when a group of people who descended upon his family’s house a few days after his father’s funeral had the same names that had been given to him by witnesses of his father’s killing.
Mr [A] claims that nowhere is safe for him in Burkina Faso: if he returns to Ouagadougou, his father’s killers and/or their political cronies will find him and kill him; if he tries to return to his home village, his uncle will use witchcraft to kill him. He claimed his wife’s family’s village is unsafe because his father’s political opponents could locate him there. He did not suggest in that statement that his uncle’s potential to kill him would reach him in his wife’s family’s village. He did say elsewhere that he was unsafe staying in the village of his father’s friend because friends of his uncle were also living there and might inform his uncle of his whereabouts. He claimed that state authorities are not competent to protect him from either threat and that, in any event, the opposition party that killed his father was now in power.
Mr [A] claim that his wife visited Ouagadougou one day for shopping in 2015 and happened to encounter some people who identified themselves as still being interested in finding and hurting him. He claimed they demanded to know from her his whereabouts.
Mr [A] submitted material to the Department including an article about social unrest in Burkina Faso ahead of the 2015 general election; a copy of the 2012 Freedom House report on Burkina Faso[3]; and articles relating to conditions in [Country 2].
[3]
On the face of things, I recognise that if Mr [A] genuinely believes in the kind of witchcraft he attributes to his uncle then, depending on relevant circumstances, his return or removal to Burkina Faso could conceivably involve some risk of harm manifested in the psychological and emotional suffering associated with believing oneself to be targeted for (arbitrary) killing (intentionally) by a witch.
Independent country information
I have had regard to the following relevant country information from the BBC:
A poor country even by West African standards, landlocked Burkina Faso has suffered from recurring droughts and military coups.
Burkina Faso, which means "land of honest men", has significant reserves of gold, but the country has faced domestic and external concern over the state of its economy and human rights.
A former French colony, it gained independence as Upper Volta in 1960.
In 1983 Capt Thomas Sankara seized power and adopted radical left-wing policies but was ousted by Blaise Compaoré, who went on to rule for 27 years before being ousted in a popular uprising in 2014.
LEADER: President: Roch Marc Kaboré
Marc Kaboré, who served as prime minister and speaker of parliament under veteran President Blaise Compaoré, won the November 2015 presidential election, easily beating his main rival.
The intervening year before Mr Kaboré's election saw considerable turmoil, including an attempted coup by troops loyal to the ousted president in September 2015.
A French-educated banker, Mr Kaboré sees himself as a social democrat, and has pledged to reduce youth unemployment, improve education and healthcare, and make health provision for children under six free of charge.
Kaboré was a long-standing Compaoré loyalist, but he quit as chairman of the then-president's Congress for Democracy and Progress party in 2014 over the head of state's plans to amend the constitution to extend his 27-year rule…
TIMELINE: Some key events in Burkina Faso's history: …
1984 - Upper Volta renamed Burkina Faso.
1987 - Thomas Sankara ousted and killed in a coup led by his close aide, Blaise Compaoré.
1990 - Compaoré introduces limited democratic reforms.
1991 - Compaoré re-elected without opposition under a new constitution…
1992 - Compaoré's Organisation for Popular Democracy-Labour Movement wins a majority of seats in the first multi-party parliamentary elections since 1978.
1998 - Compaoré wins presidential election by a landslide.
1999 June - General strike over economic grievances and alleged human rights violations.
1999 August - State-owned mining company Soremib announces the closure of the country's biggest gold mine.
2000 December - Government agrees to set up UN-run body to monitor weapons imports after allegations that it has been involved in smuggling arms to rebels in Sierra Leone and Angola.
2004 April - Military tribunal tries 13 people accused of plotting coup against President Compaoré in October 2003. Army captain Luther Ouali jailed for 10 years for masterminding plot.
2005 November - President Compaoré wins a third straight term in office.
2006 December - Burkina Faso postpones a regional economic summit after deadly gun battles between police and soldiers in the capital.
2007 May - The ruling party wins a majority in parliamentary polls.
2008 April - Two-day general strike follows weeks of protests about high living costs and call for wage increases.
2009 April - Parliament passes a law requiring at least 30% of candidates put forward for election by political parties to be women.
2010 July - France, US issue travel warnings, citing the possibility of kidnappings by al-Qaeda operatives.
2010 November - Gold mine officially opened. Premier Tertius Zongo says it will earn substantial revenue for the country
Presidential elections. President Compaoré gains another term in office …
2011 March - Weeks of violent protests follow the death of a student in police custody.
2011 April - Soldiers, presidential guards mutiny over unpaid allowances. Thousands of people protest over food prices.
2011 July - Seven people are killed when government forces suppress mutiny in Burkina Faso's second city, Bobo Dioulasso.
2012 January - President Compaoré sacks head of Burkina Faso's customs service, Ousmane Guiro, following the seizure of nearly $4m in two large suitcases traced by police to Mr Guiro.
2012 November - President Compaoré mediates talks to resolve the crisis in Mali, where Islamists have taken control of the north.
2013 April - International Court of Justice in The Hague settles a decades-old border dispute between Niger and Burkina Faso.
2013 July - Thousands of demonstrators take to the streets over plans to create a Senate. Opposition leaders say the move will allow President Compaoré to extend his rule.
2014 January - Demonstrators across the country oppose possible plans by President Compaoré to prolong his rule.
Defectors from the ruling party [led by Compaoré’s former prime minister Roch Marc Christian Kaboré[4]] found a new political movement [ the People’s Movement for Progress, or MPP, on 25 January 2014[5]]to challenge the president.
[4] “Burkina Faso politicians form new anti-Compaore alliance,” Reuters, 26 January 2014, Ibid.

2014 October - More mass protests against proposed constitutional changes to allow the president another five years in power turn into a mass uprising that drives President Compaoré from office.

Military takes charge in move condemned by opposition, civil society groups, United States and African Union.

2014 November - Agreement reached on a framework for a transitional government to run the country until elections proposed for the end of next year. Political and military leaders choose former Foreign Minister Michel Kafando as interim president.

2015 April - Romanian security officer at a mine in the north is kidnapped. Islamist militants later claim to be holding him.

Interim parliament bars politicians allied to deposed president Blaise Compaoré from running in the presidential and general elections planned for later in the year year [sic].

2015 May - Work starts on exhuming what is believed to be the body of former leader Thomas Sankara ahead of DNA tests to determine the identity and cause of his death.

2015 September - Acting President Kafando faces down coup attempt by presidential guard allies of Blaise Compaoré.

2015 November - Former prime minister Roch Marc Christian Kaboré wins presidential election, comfortably beating former Economy and Finance Minister Zephirin Diabre.

2016 January - Islamist militants attack a hotel and cafe in the capital, Ouagadougou, killing 29 people, many of them foreigners.

2016 December - Islamists waving black flags storm a military base near the Mali border and kill 11 soldiers.

2017 February - Five Sahel countries agree to set up a joint counter-terrorism force.

2017 August - 18 people are killed in a terrorist attack on a Turkish restaurant in the capital Ougadougou [sic].

2018 March - French embassy comes under attack. Sixteen people are killed, including eight gunmen. [6]

[6] “Burkina Faso profile – Timeline,” BBC News, 5 March 2018,

Roch Marc Christian Kaboré was still president of the CDP in 2011. He remained president or chairman of the party until 2014 when he resigned, opposing President Compaoré’s decision to run for a further term of office as the country’s president.[7]
[7] “Roch Marc Christian Kabore elected Burkina Faso president,” BBC News, 1 December 2015,
Of particular relevance to this case is an understanding of the political dynamics of the 2011 unrest in Burkina Faso. The following is an excerpt from an annual report from Freedom House in the UK:
In the November 2010 presidential election, six opposition candidates ran against Compaoré, who won with just over 80 percent of the vote. His closest challenger, Hama Arba Diallo, captured less than 10 percent. Only 55 percent of registered voters came out to the polls; the Burkina-based think tank, Center for Democratic Governance, estimated that over 3.5 million eligible voters remain unregistered. Although four opposition candidates challenged Compaoré’s victory and called for a new election, the Constitutional Council upheld the results. The 2010 election was the last in which Compaoré was eligible to run under the current constitution. However, the CDP has stated its intention to revise Article 37 of the charter, which would allow him to run again in 2015.
In February 2011, student riots broke out in many major cities in reaction to the death of a student, Justin Zongo, while in police custody. The government ordered universities to close and cut off funding for student services. Meanwhile, army soldiers mutinied over unpaid wages from March to May, a period of looting and general violence nationwide. In April, policemen and teachers joined the protests, demanding better pay and working conditions. Compaoré responded in mid-April by replacing the prime minister [Tertius Zongo] and the security chiefs, and naming himself minister of defense. However, soldiers rampaged in Bobo-Dioulasso, the second-largest city, for several days in early June until elite troops arrived to quell the unrest. Later in June, Compaoré replaced all 13 of the country’s regional governors. In July, 217 leaders of the army mutiny were arrested and 566 soldiers who took part were dismissed. In August, three policemen were sentenced for Zongo’s death.[8]
[8]
With regard to Burkina Faso’s security situation, I note the following:
Like other countries in the subregion, Burkina Faso is experiencing increasingly challenging security conditions. Although protected for a long time, the country has entered a cycle of more frequent terrorist attacks. In December 2018, a state of emergency was declared in several provinces …[9]
[9] “Burkina Faso: Overview,” The World Bank , 22 March 2019,
On the information before me, the capital Ouagadougou has not been subjected to any of the abovementioned “state of emergency” measures. As discussed elsewhere in this record, instability is reported generally to have been limited to the country’s northern and eastern border regions away from the capital in the centre-south.
Evidence to the delegate
For the purposes of the present review, Mr [A] submitted a copy of the delegate’s decision which contains a summary of his written and oral claims.
In oral evidence to the delegate, Mr [A] said he directly confronted his father’s killers at the scene of the original attack. This plainly contradicts what he said in his November 2015 written statement, as detailed above.
Mr [A] also evidently told the delegate that he did not take his wife and [child] with him to [Country 2] because he feared that his uncle’s supernatural powers would reach them there. I observe that he himself nevertheless worked and survived there a year and that the next place he visited was Burkina Faso, when he returned to Ouagadougou and his wife’s father’s village. On this evidence it is hard to conceive that he genuinely believed his uncle’s powers could reach anyone in [Country 2]; in any event, he was later to tell me that he believed they could not. Meanwhile, Mr [A] also claimed to the delegate that his father-in-law simply had not permitted him to take his wife and [child] with him to [Country 2].
Evidence to the Tribunal
Further inconsistencies emerged in the course of Mr [A]’s oral evidence to the Tribunal.
Whereas Mr [A] had originally told the Department that he arrived at the scene of his father’s [attack] to find that his father had already been ambulanced to hospital, he told me that when he arrived there, his father had not yet been removed. He even went as far as to provide reasons why his father had not yet been taken away by the ambulance, one of these being that the ambulance officers knew his father was “already dead”, another being that they were busy measuring things and asking onlookers what had happened. There was discussion at the hearing and in a post-hearing submission about what all this meant or could have meant: for example, since I put to Mr [A] that he had originally claimed his father died two days later in hospital, it was suggested that the ambulance officers had not hastened to take his father to hospital because, according to them, he was as good as dead or bound to die very soon; it was also suggested to me that the ambulance officers did not hasten to remove his father from the scene because they were treating him on the spot for the injuries he had sustained in the [attack] he had received, such first-aid treatment not being unusual for ambulance officers to provide. After due consideration, I give very little weight to these explanations because Mr [A] had previously claimed that his father had already been taken away by the ambulance by the time he arrived at the scene of the incident in which he was (ultimately fatally) injured.
Mr [A] told me that his father was a supporter of President Compaoré’s party the CDP. However, he generally appeared to mischaracterise the 2011 uprising as an “opposition party” uprising, whereas, in descriptions in a report that he himself submitted to the Department, it was a general uprising, starting with students and workers and later joined by the government’s own army. He claimed that on the day his father was fatally injured, the latter was trying to disperse a rally of “opposition party” members. Asked which party the opposition group represented, he told me it was the MPP led by Roch Marc Christian Kaboré. When I put to him that the MPP did not exist before 2014 and that in 2011, Kaboré was still a high-level member of the CDP government, he said that Kaboré and Compaoré were not getting along in 2011. I put to Mr [A] that his characterisation of his father’s opponents at the rally as MPP members was not consistent with documented history. In response, he acknowledged the mob was more of a popular uprising. He also claimed that they were the kind of people who went on in later years to support the MPP. Through his adviser, it was suggested in a post-hearing submission that he had never meant to suggest such a precise characterisation of his father’s assailants being, at that specific time, MPP members loyal to Kaboré, and that he had really meant merely to suggest that this is what they likely became. However, considered cumulatively, alongside other evidence in this matter as to the identity of his father’s alleged assailants, I give no weight to Mr [A]’s explanations as to why he told me they were MPP members loyal to President Compaoré’s opponent Kaboré. My overall impression is that he improvised a description of the people who purportedly killed his father, the link to the MPP helping him to argue that his father’s adversaries are now in power in Burkina Faso.
At the hearing, Mr [A] was confused in his evidence about having spoken to his father’s killers. At one point, he said he accused them directly and swore revenge the night they came to attack him in his house with stones, telling them that he would seek revenge for his father’s death. Seeking to support this claim, he showed me scars that he said were caused by the stones the gang threw at him; however, the scars he showed me did not appear necessarily to have been caused by thrown objects, let alone in the circumstances claimed. Asked to tell me what he said to his father’s assailants, he said he told them his father had been old and had only been trying to talk to them. This did not sound at all like a declaration of intent to seek revenge.
Mr [A] then said he had not explained himself properly and gave a different version of events, saying that he said these things, rather, to people who were still standing around at the scene of his father’s assault. He said they must have told the killers, who had already fled the scene. In his oral evidence to me he indicated that his father’s killers were no longer present at the scene of their attack on his father by the time he arrived. However, this is inconsistent with earlier evidence for, as noted from the decision record he submitted to the Tribunal, he told the delegate that they were still there on that occasion and that he threatened revenge there and then.
Mr [A] said, rather confidently, his uncle’s supernatural powers only work when the intended victim is nearby. He thus indicated that he believed his uncle’s powers to be very limited geographically. He said that if he was nearby his uncle, the latter could send a snake to kill him. He said he knew this because one day he found a snake and cut it open, only to find it had no belly, the inference he claims to have drawn having been that the snake had some connection to the supernatural. I asked him why his uncle had not succeeded in killing him before, and he digressed somewhat, telling me that his uncle had probably been responsible for the death his [sibling] in 2003: he said his [sibling] had died of an illness that [the] doctor had been at a loss to diagnose precisely and had passed away after a number of sleepless nights. He said his mother’s death was also probably attributable to his uncle’s magical interference. I put to him that his uncle still had not killed him by any means during the periods when he lived with him and later lived in his father’s friend’s village. Meanwhile, his wife and child, who he had not taken with him to [Country 2] for fear of their falling victim to some supernatural curse were still alive in Burkina Faso. He told me he had moved away from his father’s friend’s village when he realised that his uncle had friends who were living there, the relevance being that they might have told his uncle where he was.
It was in a submission received by the Tribunal before the hearing that Mr [A] appeared first to talk about his wife having visited Ouagadougou one day for shopping in 2015 and having happened to encounter some people who identified themselves as still being interested in finding and hurting him. In the submission, he said this happened in September 2015. He told me he found this out directly from his wife with whom he used to have telephone conversations every week or two. However, there is no mention of this event in his November 2015 statement to the Department, notwithstanding the claimed frequency of contact between himself and his wife at the time. In that statement he said his wife has remained safe in her family’s village because she never goes out. He said at the time that she was safe because she did not go back to Ouagadougou from that village. There were thus at least two places in the November 2015 statement when Mr [A] could have talked about the exception: the time his wife did go to Ouagadougou two months earlier in September 2015. However, he did not mention it and seemed to describe how and why it could not happen.
Explaining to me when the Ouagadougou confrontation occurred, Mr [A] said it happened in “November 2015”. When I put to him that he previously claimed it had happened in “September 2015” he then said it happened many times, leaving open the possibility that it also happened in September 2015, which still left me concerned as to why he had not mentioned it in his November 2015 statement. The account now was inconsistent because on the one hand he had said his wife never went to Ouagadougou whereas on the other he was saying she did so “many times”. His suggestion to the effect that it happened many times struck me as improvised and far-fetched, considering that he had previously described his wife as “safe” because she took care to avoid being seen or located by his adversaries. Overall, it struck me as being difficult to rely on any of the varying accounts of his wife having been accosted in Ouagadougou.
Summing up his claims, Mr [A] said that he cannot return to Ouagadougou because of the opposition party still wanting to kill him to prevent him from exacting the revenge they fear he would try to exact. He said he cannot return to his father’s village because the same adversaries will find him there. He said he cannot live in his father’s friend’s village because it is still too close to his uncle geographically, and is also a place where his uncle has friends, even though he survived a sojourn there before. He claims that Burkina Faso is generally a country riven by social and economic chaos with food instability, farmers displaced from their farms by famine and poor returns, and Islamist terrorists from Mali occasionally bombing state and church institutions in a declared effort to Islamise the largely Catholic country. He claims that violent crime is endemic throughout the country. He also said his wife and [child] are now displaced, but when I put to him they are living with his wife’s parents in their village, a fact contradicting suggestions of displacement, he said, “Yes.”
I put to Mr [A] that it seemed uncharacteristic of the MPP, a party of social democrats, to back murderous groups interested in killing the son of someone killed at an arguably heated rally some eight years ago at the time of another regime. In response, he said that in Africa politics are not so straight, which I took to mean “sound”, “subject to account” and “predictable”.
Mr [A]’s post-hearing submission dealt in part with the question of third country protection, in light of his having resided in [Country 2] and also in light of evidence to the effect that he is automatically entitled to an African Union (AU) passport and also free to enter and reside indefinitely in a range of neighbouring Economic Community of West African States (ECOWAS). The thrust of the submission and its attachments is that other ECOWAS countries like Benin and Ghana, both mentioned at the hearing as possible refuge countries, are subject to DFAT travel warnings due to crime and other instability. The DFAT travel warning for Burkina Faso[10] describes terrorist and other violence occurring in, and arguably limited to, border regions in the north and east of the country, the other countries bordered being Mali, Togo, Niger and Benin. Evidently there were attacks in Ouagadougou on 2 March 2018. There is reported to have been a terrorist attack on a restaurant in Ouagadougou on 13 August 2017 killing and injuring several people. There was an attack attributed to Al Qaeda killing a number of foreigners in a tourist hotel in Ouagadougou in January 2016. Whereas the DFAT report says that terror attacks could be launched anywhere in Burkina Faso at any time, it also says the likely targets would be places associated with foreigners, who are advised to avoid hotels, bars and churches.
[10] 17 January 2019,
Findings in relation to s.36(2)(a) of the Act
In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[11] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[12]
[11] MIMA v Rajalingam (1999) 93 FCR 220.
[12] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.
The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[13] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[14]
[13] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70
[14] Sun v MIBP [2016] FCAFC 52 at [69].
On the evidence before me, I can accept that Mr [A]’s parents are deceased. However, in light of the many inconsistencies in Mr [A]’s evidence, I do not accept that his father was politically active, or for any other reason targeted or harmed by politically-motivated people, let alone at a rally or protest where protesters fatally wounded [him]. I do not accept that Mr [A]’s father was murdered, let alone in the circumstances claimed; putting that version of events aside, then, I conclude that his father died in some way that is irrelevant to this protection visa application, say, by accident or due to natural causes. It flows from all this that I do not accept that Mr [A] has been truthful about facing murder at the hands of people who fear he wants to avenge their killing of his father. I also dismiss as fabrication the claim about Mr [A]’s wife having encountered people linked to adversaries of his in Ouagadougou. I am not satisfied on the evidence before me that any party is, or has been, singling Mr [A] out for murder in Burkina Faso. For all these reasons, I find that the main reason why Mr [A] claims to be unable to return to live in Ouagadougou is not founded in fact.
Having found this, I do not necessarily dismiss the unsupported claim in this matter to the effect that Mr [A]’s father was a member and/or, to some ultimately insignificant effect, a supporter of the CDP; many Burkinabé citizens were, though not as many, independent sources suggest, as can accountably explain Compaoré’s repeated successes in elections. All that said, on the independent country information before me, and taking into account Mr [A]’s description of himself as being apolitical and far from activist, I am not satisfied he faces a real chance of being persecuted for reasons of being the son of a former member or supporter of the CDP.

As to Mr [A]’s fear of returning to live in Ouagadougou because of generalised instability, including food instability, terrorist incidents, and occasional terrorist activities by Malian Islamists and the like, I find that none of the factors cited in s.5J(1)(a) are essential and significant factors in the harm feared. What Mr [A] describes here is a general disintegration in law and order affecting the population as a whole; I will come back to this in the next section of this record. Suffice it to emphasise here that I am not satisfied on the evidence before me that any of the general social disruption described in Mr [A]’s claims and in the country information on which he relies is for reasons linked to any of the five factors cited in s.5J(1)(a) of the Act.
Meanwhile, on the evidence before me, acts of terror in Ouagadougou have been isolated and sporadic over the last three or more years, in addition to having been targeted mainly at venues and institutions visited by foreigners, according to the DFAT information submitted by Mr [A], such that I find that there is not a real chance of his suffering serious harm in Ouagadougou in the reasonably foreseeable future; however, again, I will return to this issue in the next section.
I accept that the [business] run by Mr [A]’s father operated between the family’s home village, where the sorcerer uncle lives, and Ouagadougou, where Mr [A] says he used to be involved in [a specified occupation]. On the basis that Mr [A] previously schooled and worked in Ouagadougou, found work as a [Occupation 1] in [Country 2] and evidently has some work here in Australia, where he cannot speak English, the income from which he claims to share with his family back in Burkina Faso, I consider it practicable and reasonable for him to return to Ouagadougou.
I accept that Mr [A]’s uncle took over the family business in or around 2011 over his, Mr [A]’s, objection, and excluded him and his mother from it. Mr [A]’s position is not so much that he wants to reclaim the [business] from his uncle but that his uncle is prepared to kill him if he turns up, for fear that Mr [A] means to reclaim it, and may even be prepared to kill him pre-emptively using all the powers he might have.
To the extent possible, I have kept an open mind to the possibility of the traditions of local sorcery having a potentially profound effect on what Mr [A] seemed to describe as his African sensibility, notwithstanding that he is also a Catholic. However, even when he was suggesting he was completely credulous regarding his uncle’s powers he also spoke of them being restricted geographically, usually when he was explaining to me how he had managed not to have been killed already, when he was living away from his uncle’s village in Burkina Faso and living in [Country 2]. On those occasions in the Tribunal hearing he spoke confidently of an extent to which he need not fear his uncle at all. As I put potentially challenging positions to him about how he had managed to survive so far, he went, in my view, from expressing a consuming and comprehensive fear of his uncle to providing a confident overview about its geographic or geopolitical limits. What seemed incongruous here was not that there was an inherent limit or weakness to the magic described, but that Mr [A], in the face of potentially challenging questions, suddenly appeared so confident to rely on certain limits or exceptions to his uncle’s powers in the claimed circumstances. My impression here is that he was improvising, and that his explanations disclosed a certain disingenuousness. He even suggested at one point that his uncle needed to rely on positive geographic sightings of his would-be victims in specific locations. His talk of the prospect of being sighted in this way took the discussion, in my view, into the realm of bald speculation at best. His earlier written evidence to the Department also indicates that he is himself somewhat incredulous as to his uncle’s purported sorcery having a basis in fact, especially where he appeared to articulate a rational or rationalist overview, saying that what he feared was the emotional and psychological manipulation his uncle tried to use. When he talked in his statement about emotional and psychological manipulation, he struck me as referring to something intimidatory, if one subjectively lets it be so, that does not necessarily rise to the level of serious harm. In any event, Mr [A]’s own travels in Burkina Faso since his father’s death in 2011 indicate that he has spent significant periods in places where, according to him, his uncle’s magic cannot reach, and it is mere bald speculation that his uncle’s allies would help him locate Mr [A] or that his uncle would travel to seek him out.
Mr [A]’s claims generally indicate to me that he considers Burkina Faso’s capital and his wife’s family’s village to be safe distances from his uncle, for he travelled to these places and sojourned in them voluntarily for substantial enough periods. In any event, Mr [A]’s claims about his uncle have no nexus to s.5J(1)(a) in that none of the five factors in s.5J(1)(a) are an essential or significant factor in the harm feared.
Although Burkina Faso is troubled by economic and other instability, I give weight to Mr [A]’s claims about his family being safe in his wife’s father’s village, and I also find that it is safe and reasonable for him to reside again in Ouagadougou. On the evidence before me, I am not satisfied that Mr [A] faces a real chance of being persecuted in Burkina Faso in the reasonably foreseeable future for any reason cited in s.5J(1)(a) of the Act. His claimed fear is not well founded. He is not a refugee.
For the reasons given above, I am not satisfied that Mr [A] is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
Having concluded that Mr [A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). A person is entitled to protection under s.36(2)(aa) if there are 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.
Relevantly, s.36(2)(aa) refers to a "real risk" of an applicant suffering significant harm. The "real risk" test imposes the same standard as the "real chance" test applicable to the assessment of "well-founded fear" in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33). "Significant harm" for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. "Cruel or inhuman treatment or punishment", "degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Essentially, all three of these definitions require that there be an intention to inflict harm by some act or omission. Torture does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. "Degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Accepting that Mr [A] is a citizen of Burkina Faso, I find that Burkina Faso is the “receiving country” in this case.
I find that the harm Mr [A] identifies in his complementary protection claims includes “arbitrary deprivation of life”, “cruel or inhuman treatment or punishment”, “torture” and “degrading treatment or punishment”.
Mr [A]’s claims to complementary protection are essentially the same as his refugee status claims. Since his refugee claims have failed on the basis of inconsistency and lack of credibility or on the failure to meet the “real chance” test, or both, they can no more succeed as complementary protection claims.
Mr [A]’s claims about his uncle being motivated for mercenary reasons to use sorcery against him are claims that I found not to have any s.5J(1)(a) nexus. However, they are nevertheless admissible as complementary protection claims for, as discussed, they involve the claimed fear of a real risk of significant harm manifested in death by sorcery or, even if that does not occur, in the stress and trauma of believing oneself to be targeted for arbitrary and intentional killing by a sorcerer. Even if I accept Mr [A]’s claims about his uncle to be true, i.e., that the uncle has threatened to use magic they both believe in to kill him, I find that Mr [A] has demonstrated awareness of circumstances in which he can remain safely and reasonably in familiar locations in Burkina Faso beyond the reach of such magic. Accordingly I find that there is not a real risk of such harm.
Elsewhere, Mr [A] claims a fear of being harmed by food instability and concomitant crime in Burkina Faso. On the evidence before me I am not satisfied that such harm would necessarily rise to significant harm in his case or that the risk of such harm would be one faced by him personally as distinct from being faced by the population generally.
Regarding crime and terrorist attacks by Malian Islamists and the like, independent DFAT evidence submitted by Mr [A] shows that this is fairly limited to border regions in the north and east of the country. Attacks such as those on 2 March 2018 and in 2017 and 2016 in Ouagadougou have evidently been isolated and infrequent. On this information, I am not satisfied that there is a real risk of Mr [A] being harmed in such attacks. In any event, the risk is evidently faced by the population generally and not by Mr [A] personally.
Having considered all of the evidence in this case in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Burkina Faso, there is a real risk that Mr [A] will suffer significant harm.
Other findings
There is no suggestion that Mr [A] 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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
..
36Protection visas – criteria provided for by this Act
…
(2A)A non‑citizen will suffer significant harm if:
(a)    the non‑citizen will be arbitrarily deprived of his or her life; or
(b)    the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 3278

30 July 2019

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