1904948 (Refugee) - [2020] AATA 300

1904948 (Refugee) [2020] AATA 300 (20 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904948
COUNTRY OF REFERENCE:                   Burundi
MEMBER:Sean Baker
DATE:20 January 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 20 January 2020 at 3:02pm

CATCHWORDS
REFUGEE – protection visa – Burundi – race – Hutu – father killed by Tutsi soldiers – humanitarian visa cancelled on character grounds – ethnically based civil war ended in 2005 – Arusha agreement – imputed political opinion – opposition to the current government – general security situation – decline in politically motivated violence – particular social group – returnee from Australia or wealth country – single person with no family – prospects of integrating into society – separation from family and children – access to mental health care – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 501E
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQOT [2012] FCA 141
SZQOT v MIAC [2012] FMCA 84
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

[The applicant] is a national of Burundi, born in [Town 1]. He fled Burundi after the killing of his father during the civil war. He came to Australia as the holder of a humanitarian visa. This visa was cancelled under the character provisions after he committed offences in Australia. Under s.501E the applicant had limited options to apply for a visa but which included, relevantly, a protection visa. In his protection visa application he claims to fear harm on return because of his Hutu ethnicity, his imputed political opinion, and because the situation in Burundi is dangerous.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
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, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their 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 they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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 issue in this case is whether the applicant has a well-founded fear of persecution if returned to Burundi or, if not, whether there is a real risk he will suffer significant harm if returned to Burundi. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and nationality
The delegate’s decision notes that the Department has the applicant’s titre de voyage which he used to travel to Australia including his photograph and fingerprint. The delegate was satisfied that the applicant is who he claimed to be. On the information before me and with no information to the contrary I accept that the applicant is who he claims to be.
On this information I find that the applicant is a national of Burundi and no other country. There is no information before me that would establish the applicant has a right to enter and reside in any third country. I find for the purposes of this assessment that he does not have such a right.
Claims
The applicant made claims contained in a statutory declaration, and elaborated on at interview with the delegate.
The applicant’s claims for protection, including those raised at interview, are contained in [Department file number]. The applicant’s claims for protection are summarised below:
The applicant left his country of citizenship, Burundi, at the age of [age]. At the time, his father was killed by soldiers or militia and then he fled to [Country 1] with his mother and siblings. He has not returned to Burundi since.
He claims that his family are ethnic Hutus and that his father was killed by Tutsi soldiers. The applicant witnessed the attack on his father. He has claimed that he has bad memories of Burundi and he does not want to return. At interview, he submitted that Tutsi’s do not like Hutu’s and he fears that Tutsi groups will harm or kill him. He also said that the Tutsi’s that killed his father would recognise his face and they would kill him. He said that Tutsi groups could identify him at any location in Burundi by his surname. He said that Tutsi groups would see his surname then realise that he was the son of the man that they killed.
It is also submitted that Burundi is generally an unsafe country with civilians being indiscriminately arrested or harmed. It is submitted that as a returnee to Burundi, having lived most of his life outside of Burundi and having family in Australia, the applicant would be vulnerable to indiscriminate harm or he would be directly targeted for harm. It is also submitted that returnees to Burundi are viewed as having caused the political problems in Burundi and he may also be targeted for this reason.
The applicant had the assistance of a representative of [a legal service provider]. The representative submitted that the violence that flared again in 2015 is continuing, much of it committed by the authorities or their agents, and that it was not only opposition groups, but ordinary citizens who can be caught up in the violence, not only Tutsis, but men who live in opposition strongholds. Returnees, it is said, are marginalised and treated as the source of all problems. In a submission after the interview, it was argued that the applicant did not support the current Burundian government, having no faith in their ability to protect people, and confident that the authorities have committed crimes against people. It is argued that people who refuse to join the ruling party are also attacked. His lack of knowledge with the situation in Burundi was pointed to as a potential issue leading to a greater chance of harm. It was noted that he would be returning from a country that has been critical of the violence perpetrated in Burundi by the authorities and their agents, and this may be exacerbated as he will continue to have family in Australia. He may be vulnerable to crime or ransom as a returnee from a wealthy country.
It was submitted that reports about recent events indicated that the Burundian government had failed to attend the fifth round of peace talks aimed at ending the political crisis, and had demanded the UNHRC leave the country, which would be likely to lead to reduced accountability for human rights abuses.
At interview the applicant provided information on the above claims. He said he did not have political issues; he feared Tutsis in general and thought those who targeted his father would recognise his face, or recognise their family name. He said that as a single person in Burundi there would be no one to protect him. He said the people who had killed his father would recognise him because of his surname and harm him.
The delegate refused the application. The delegate accepted the applicant’s claims of what had happened to him in Burundi, but found that the people who harmed his family would not recognise him as he was [age] at the time and the war had ended 13 years ago. The delegate did not accept that the applicant would be harmed because he had not lived there since, [age], had no ties there, and would face issues integrating. It was not accepted that he had an anti-regime opinion, nor that he would be vulnerable to crime and ransom as he would be returning from a Western country. The delegate cited country information that aid agencies were active in Burundi assisting returnees, and that whilst aid agencies had been expelled in late 2018, it appeared many of them were now operating again. The delegate assessed that whilst Burundi is one of the least developed countries in the world, the applicant, as an able bodied man, would be relatively competitive in the Burundi labour market and was of the majority Hutu ethnicity. A distinction was drawn between those returning from the recent 2015 conflict, and those such as the applicant returning from the 13 year old conflict. It was not accepted that the applicant would be harmed for reasons of his political opinion, as a victim of crime, or on the basis of being charged again for crimes he had committed in Australia. The applicant provided a copy of the delegate’s decision in his application to the Tribunal.
The applicant did not provide further submissions to the Tribunal.
At the hearing the applicant said that he could not return to Burundi because he left that country when he was very young, and when someone there asked him about his race or tribe he does not know where he belongs and so he cannot answer.
I noted that he had identified himself in his application and at the interview as part of the Hutu race/tribe. He agreed, but said that he didn’t know where he belonged in terms of tribes.
The applicant said that it was hard to talk about Burundi; if people talk about it he had this image of what happened when he was young and also what happened to his family. I asked what he feared would happen to him if he went back to Burundi. He said that he feared he would be killed – if a person goes back and does not mention their tribe they may be killed. I noted to him that when he referred to tribe I was not sure I understood what he was referring to. He said that he knew his tribe is Hutu but his dad had not taught him which tribe he belonged to and the applicant could not say where he belonged. I explained to the applicant that the information before me was that people of the Hutu ethnicity/tribe comprised 85% of the Burundian population, with Tutsi making up 14% and other groups making up the remaining 1%.[1] I asked, given the group he identified with, the Hutu, made up 85%, what did he mean he would not be able to tell people what tribe he belonged to. He said he meant he would not be able to give any evidence that he was a Hutu, and his father had not been able to respond to this question and this was why he was killed.
[1] >
I noted that his claims appeared to indicate that his father was killed by Tutsi soldiers in ethnic violence, and this appeared to strongly indicate that the soldiers identified his father as Hutu. I noted that he was able to identify his place of birth, his surname, and this would allow him to identify himself as Hutu. The applicant said they will identify him as a Hutu, as that is his family, so he will be easily identified. I asked if he thought he would be harmed as a Hutu returning to Burundi now. He responded that he will be harmed as they will ask him why he was returning now, after all these years of being overseas, why are you coming back and he will not have an answer. He said also he cannot return as he did not think he would have any peace there. He said also if your family had been killed they think you are returning to take revenge, and for this reason he fears he will not be protected.
I noted that he had left Burundi when he was [age] and it would be hard to identify those who had killed his father and harmed other members of his family years ago. He said even if he didn’t remember them they would remember him as he has the same surname as his dad and grandfather. He said also they would recognise his face as he has the same facial features as his dad.
I discussed with the applicant country information about the current situation in Burundi. I noted that the civil war from 1993 to 2005 was fought along ethnic lines and ended with the Arusha agreement which provided for a transition to multi-party government.[2] In 2015 violence flared again but this was politically motivated by the attempts by President Nkurunziza, a former Hutu rebel leader, to secure a third term for himself as President, and violence was directed at political opponents, not along ethic lines.[3] This violence appeared to have died down with the return plan for Refugees from the 2015 violence put in place by UNHCR and other agencies in 2019.[4] Many of the people who had fled the 2015 – 2016 violence had returned to Burundi.[5] Assessments by agencies is that with the consolidation on power by Nkurunziza’s government, the CNDD-FDD, this has resulted in an apparent stable, if tense, political context.[6] Whilst the Arusha agreement required power-sharing between Hutu’s and Tutsi’s, there were some accusations that Hutus were favoured in terms of employment and restitution of land.[7]
[2] Political Economy Research Institute, Conflict Profile: Burundi (1993 – 2006), University of Massachusetts,
[3] BBC News, Burundi country profile, BBC news Africa, 3 December 2018,
[4] BURUNDI REGIONAL REFUGEE RESPONSE PLAN, January 2019-December 2020, UNHCR website, Burundi situation,
[5] Human Rights Watch, Burundi – Events of 2018, World Report 2019,
[6] Returning to Stability? Refugee returns in the Great Lakes region October 2019, International Refugee Rights Initiative, 2019,
[7] United States Department of State, Country Reports on Human Rights Practices for 2018,
I explained that I may infer from the reports I had read that ethnicity did not appear to have been a significant factor in violence since the Arusha accords and the end of the civil war in 2005, some 14 years ago, and since then conflict in Burundi largely appeared to be political. I explained that for this reason I was not sure that Tutsi’s, or Tutsi groups, would seek to harm the applicant for reasons of his ethnicity/tribe, and that I may not accept that those who had committed the atrocities against his father and other family members would recognise or be motivated to harm the applicant.
The applicant said that the understood the county information but that when he had left the country it was an ongoing issue, and he still had the same trauma.
He said that it may be that those in power in Burundi were not releasing the right information. I noted that I had read reports from local and international NGOs and government agencies, that they tended to agree on the current situation in Burundi and so I may not accept that the government was suppressing information.
The applicant reiterated that he still had trauma about what had happened to him and his family. He said even if Burundi was at peace he did not think that he would feel protected, and he would not have peace in his mind. I told the applicant that I understood and had very deep sympathy for the trauma he had endured.
I explained that I had to assess whether he would face harm from someone or a group on return. He said that when he arrived the people who had killed his father were still there and he didn’t know how they would treat him as he is here. I noted that it had been more than 20 years since his father had been killed. I asked if the applicant thought his father had been killed because he was a Hutu and this was the main or only reason why he was killed. The applicant said this was why they killed him. I explained that if this was the case, then taking the country information into account, and the period of time since this had happened, I was not sure that people would come after him because his father was a Hutu and they had killed him in ethnic violence over 20 years ago. The applicant said that still he had the trauma.
I noted that it had been submitted that he would be harmed on return because returnees to Burundi are viewed as having caused the political problems in Burundi and he may also be targeted for this reason. The applicant said this was true. I noted that I was not sure that country information supported that this was more than isolated incidents,[8] that it may be more of an issue for those who fled the more recent political violence, rather than people such as himself who had fled the ethnic violence and had been out of the country for decades,[9] and that the earlier information discussed with him indicated that there was a UNHCR sponsored plan for return of refugees from the 2015 violence in January 2019, with UNHCR estimating there will be about 280, 000 returnees to Burundi by December 2020.[10] I noted that if the applicant was returned from Australia I was not sure that the government, authorities, the Imbonerakure (the youth militia connected to the ruling party) or anyone else would impute to him an anti-government political opinion. He said he understood but he thought he may still be at risk of harm.
[8] Returning to Stability? Refugee returns in the Great Lakes region October 2019, International Refugee Rights Initiative, 2019, International Refugee Rights Initiative, “I Fled Because I was Afraid to Die” Causes of Exile of Burundian Asylum Seekers August 2017,
[10] BURUNDI REGIONAL REFUGEE RESPONSE PLAN, January 2019-December 2020, UNHCR website, Burundi situation,

I noted that it had been submitted that as a returnee from Australia and as someone who has family in Australia he may face harm or an increased risk of harm on return but that on the basis of the country information already discussed I was not sure that this was supported by the country information. The applicant said that he had the same trauma and anytime war can come again.
I explored with the applicant the submission that Burundi is generally an unsafe country with civilians being indiscriminately arrested or harmed, and as a returnee and having lived most of his life outside Burundi and having family in Australia, the applicant would be vulnerable to indiscriminate harm.
I noted to the applicant that the country information may not support the claim that there was indiscriminate arrest or harm – the authorities and Imbonerakure appeared to target people for arrest, detention, killings and other serious harm on the basis of those people’s actual or imputed political opinion of opposition to the current government.[11] I noted that I may take the view that he would not face a real risk or real chance of being harmed by these groups if he did not hold or was not imputed with such a political opinion. The applicant asked how he would know whether anyone could harm him.
[11] United States Department of State, Country Reports on Human Rights Practices for 2018, >
The applicant raised two further issues at the hearing – that he had health care here that he would not receive there, and that he would be separated from his family if he was returned to Burundi.
In relation to the first point, the applicant said that he was not receiving medical treatment at the moment in detention, but in prison he had seen a doctor every two weeks who had helped and counselled him. I noted to the applicant that Burundi was working with partners including the WHO to assure universal access to quality health care,[12] and that the majority of primary health care doctors and nurses have received official in-service training on mental health.[13] I explained that this information might lead me to the view that he could access free or low cost mental health care in Burundi. He responded that he was not talking about doctors; he was talking about not having his family or any family members there.
[12] WHO, Country Cooperation Strategy – Burundi, WHO/CCU/15.03/Burundi, May 2015,
[13] WHO, Mental Health Atlas 2011 - Department of Mental Health and Substance Abuse, World Health Organization – Burundi,
I accept that the applicant would be separated from his family if he was returned to Burundi. His immediate family, his mother and two siblings, live in Australia and he has two children, [age] and [age], in Australia. He said he has no family members in Burundi. I said to the applicant that I understood it would be terrible to be separated from his family and his children. I noted that I was not sure that this would constitute serious or significant harm. The applicant did not directly respond.
A further issue not raised but evident on the material is the possibility that the applicant’s offences, convictions or gaoling in Australia may lead to him being harmed on return to Burundi. I noted that country information did not appear to me to support the possibility that he would be tried again in Burundi for offences committed in Australia.[14] The applicant did not respond directly to the concerns raised, instead he said that when he came from overseas to Burundi, the authorities will think that he went overseas to disclose information about Burundi and give the authorities a problem. I noted that he had left Burundi when he was [age] so I was not sure that anyone, including the authorities would think he had information to disclose. He responded that he still remembered what had happened a long time ago, and those he met would also remember.
[14] See Human Rights Watch, Background on the 2008 Penal Code of Burundi, 3 December 2008, IRIN, Burundi: Mixed response to new penal code, 9 December 2008, available at:
I then raised with the applicant the economic and social situation in Burundi. I noted that there were many returnees from neighbouring countries and that this may lead to difficulties getting employment. I noted that the applicant may have an advantage in that he was Hutu and there were some claims as noted above that Hutu’s were given preferential treatment in employment. I noted that he spoke Kirundi fluently. I noted also that he had been employed as [an occupation] and [at a workplace] in Australia and this work experience may allow him to gain employment in Burundi. The applicant said that he was not talking about this. He may even get a job, he was talking about his security. If he went back he will not get any assistance.
I noted that a claim was put forward that aid agencies had been prevented from operating in Burundi. In October 2018 the government claimed aid agencies were operating illegally because they were not complying with government hiring practices to employ 60% Hutus and 40% Tutsis.[15] I noted recent information indicates that by December 2018, 48 agencies had been reinstated, some had complied with the directive, some had not.[16]
[15] Beaubien, J., ‘Why Burundi Is Kicking Out Aid Groups, 23 January 2019, ·
[16] Mednick, S., ‘'Assertive authorities' threaten humanitarian ethics’, 17 September 2019, Devex,
I asked the applicant if there was any other reason or basis on which he believed he would be harmed. The applicant said that he had learnt a lot in prison, and he had matured, and he wished to be there and help his children when they needed him. He asked if the government could forgive his actions. He committed crimes because he was young and drank too much and that took him back to the trauma. In prison he did a course on living without violence and this helped him not to drink and to live with people peacefully. He said that his mother had an issue with her spine and diabetes and is old and he needed to remain here to support her. He needs to remind her to take her medication. He fears he will lose his second parent.
Consideration
I have carefully considered the applicant’s claims. I accept that the applicant is a Hutu male, born in [Town 1], Burundi. I accept that the applicant fled Burundi at the age of [age] after witnessing his father and other members of his family being killed by Tutsi soldiers. I accept that his elder brother was separated from the family and may have been killed. I accept that the applicant came to Australia on a humanitarian visa, which has been cancelled. I accept that he committed offences in Australia which led to him being jailed for some years.
I find on the evidence before me that the applicant is a national of Burundi and of no other country. I find that he would return to Burundi, most likely to the capital city, Bujumbura.
I accept that the applicant has a very strong and completely understandable subjective fear of returning to Burundi. I accept that he has bad memories and does not want to return. The applicant has suffered a level of trauma unimaginable to those who have not endured it. I have the deepest sympathy for the applicant and the situation he is now in. The applicant has two young children in Australia who will most likely have no contact with the applicant if he returns to Burundi.
I do not accept that the applicant will be harmed by Tutsi soldiers who killed his father and other members of his family, by Tutsi militias or Tutsis in general. The ethnically based civil war ended in Burundi in 2005 with the Arusha agreement. The agreement put in place a power sharing arrangement and mandated ethnic quotas in the government, police and armed forces. The country information establishes that since 2005, ethnicity has not been a significant driver of violence. I accept that there are reports, as above, of discrimination on the basis of ethnicity, but the reports suggest that this discrimination has been in favour of Hutus. Given the agreement, the power sharing arrangement and quotas, I consider such discrimination to not be significant towards either the Hutus or Tutsis. The country information I consider does not support the claim that Tutsis do not like Hutus, or that the animosity of Tutsis, or even individual Tutsis, is so significant that it leads to a real chance or real risk of harm to the applicant from Tutsis in general or specific Tutsis. I do not accept, on the country information, that Tutsi groups are harming or killing Hutus. On the basis of the country information, whilst I accept that the applicant, on return to Burundi, would be identified as a Hutu on the basis of his surname, I do not accept that this will lead to him being harmed or killed by Tutsis or Tutsi groups.
I have carefully considered the possibility that those involved in the killing of his father would seek to harm him. The killing of his father took place over 20 years ago. It was in the context of a civil war fought along ethnic lines, and as the applicant conceded at the hearing, his father was targeted for being Hutu, rather than for any other reason. I find it implausible that the Tutsi soldiers who killed his father would have any motivation to harm the applicant now, given the changed political landscape in the country. Further, I do not accept that these people would be able to identify the applicant as the son of someone they killed – the applicant was [age] at the time, and I do not accept that they could distinguish the applicant by his resemblance to his father, finding this claim to be far-fetched. I do not accept on what the applicant has put forward that there would be any ability by these people to identify him by his surname either. I do not accept, from his description of the attack, that the attackers were targeting his father for any reason other than that he was a Hutu and they were Tutsis. I find the chance of the applicant being targeted as the son of his father or as a Hutu by those who killed his father to be remote.
I also do not accept the applicant’s claim that if your family has been killed they will think you are returning to take revenge, and will be harmed or not protected by the authorities for this reason. As above, the country information indicates that ethnicity is not the touchstone of violence it was during the civil war and does not appear from the country information to be a current driver of serious discrimination or harm in Burundi. I do not accept that the authorities, or anyone else, consider that returnees who have had their families killed are returning to take revenge. There is no support for this claim in the country information.
The applicant also said that, whilst he knew his tribe was Hutu, his father had not taught him which tribe he belonged to and the applicant could not say where he belonged. The applicant was not clear about what his specific concern with this was. I understand that he may be concerned that his father had not explained to him what being a Hutu is, or perhaps what sub-tribe they belong to. I do not accept that this leads to any real chance or real risk of harm. The applicant is aware and would be able to tell people where he was born. He is able to identify his tribe/ethnicity of Hutu. The country information indicates that ethnicity is not the touchstone of violence it was during the civil war and does not appear from the country information to be a current driver of serious discrimination or harm in Burundi.
On the country information and my reasoning above, I find that there is no real chance of the applicant suffering harm as a Hutu and the son of his father or for any other reason connected to his ethnicity by the Tutsi soldiers who killed his father, Tutsi groups, or Tutsis generally and individually or the authorities.
It has also been claimed that Burundi is generally an unsafe country, with civilians being indiscriminately arrested or harmed. I consider that this is a misrepresentation of the country information. The country information indicates that in 2015 there was widespread violence on the basis of opposition to President Nkurunziza’s seeking a third term. This led to violence by the authorities against opposition groups and those suspected of supporting the opposition groups. Many thousands fled Burundi to neighbouring countries. The country information is clear that the cause of this violence was predominantly political and did not have a predominant ethnic dimension. The country information also indicates that people have been returning from neighbouring countries to Burundi. It is the case that there are many reasons for their return, including significant push factors from their countries of refuge, but I also note that the UNHCR has partnered with Burundi and neighbouring countries in the Burundi regional refugee response plan, and has assisted many thousands of people to return. This process is predicted by the UNHCR to continue through this year, leading to the projected return of many thousands of people to Burundi by December 2020. The country information, I consider, indicates that there are significant issues in Burundi, but that the situation is stable enough for UNHCR to participate (albeit with some reluctance) in the assisted return of people there. On the basis of my reasoning above and the country information I do not accept the claim that Burundi is generally an unsafe country, with civilians being indiscriminately arrested or harmed.
There is some basis for concern for those opposed to the current government, or imputed as being opposed to the government. But I do not accept that the applicant will be harmed on the basis of holding or being imputed to hold, a political opinion opposed to the current government. The submission argues that he does not support the current government, having no faith in their ability to protect people and confident that the authorities have committed crimes against people, and having a lack of knowledge about the situation in Burundi which may heighten the chance of him being harmed. However, I note that the applicant has not lived in Burundi for his adult life, and when asked about these things he has not stated or indicated that he holds a political opinion against the government, rather he has detailed his fears on the basis of what happened to his father. I accept that the applicant holds these views, and that they are a political opinion, but what I do not accept is that the country information supports that people who hold such views are harmed by the authorities, the Imbonerakure or anyone else for holding these views. Neither he nor the submissions on his behalf demonstrate a cogent and intelligible way in which this opinion would lead to him being harmed. The country information indicates that people are harmed for expressing their resistance to the government and ruling party, rather than holding opinions such as the applicant has. He has not claimed that he will take any action or make anyone aware of his opinions. There is no basis or support for the conclusion that the applicant will be imputed to hold an anti-government opinion. (I have addressed the issue of how his status as a returnee may be viewed below) I further do not accept that the applicant will be required or pressured to join the ruling party or be harmed for not doing so – again, there is no support in the country information for this proposition. Nor is there any basis in the country information to support a proposition that his lack of knowledge of the situation in Burundi will lead to him being harmed. I note that he speaks two of the national languages as below and there are good prospects he will be able to integrate into the society. It has also been said that men who live in opposition strongholds are caught up in the violence. I can find little information about this in the country information and the report referred to in the submission dates from 2015. I accept that in 2015 and 2016 there was political violence targeting opponents of the government and ruling party and that this spilled over into violence against people who lived in areas identified as opposition strongholds who may not have been opponents of the government. However, the country information referred to above indicates that the position in Burundi has stabilised since then, leading to a decrease in political violence of the kind reported in 2015. Taken with the return of large numbers of people, under the auspices of UNHCR, I find that there is no real chance or real risk of the applicant being harmed by political or politically motivated violence even if he were to choose to reside in an area that may be considered an opposition stronghold.
It has also been claimed that returnees are viewed as opponents of the government and viewed as having caused the violence in 2015/16, and may be harmed on that basis, and that the applicant, as a returnee, will be imputed to be part of this group, and may be marginalised and treated as the source of all problems. As I discussed with the applicant at the hearing, his situation may be different in important respects from that of the people returning from neighbouring countries. He will be returning from Australia, rather than a neighbouring country, and has not lived in Burundi his entire adult life, including, relevantly, in 2015 – 2016. This is significant, I consider, because I find that the people who have been harassed, arrested and harmed more recently in Burundi have been people who fled in 2015-2016 to neighbouring countries and have returned from those countries to Burundi, and on this basis are considered or imputed to be political opponents of the government. I find that the applicant, returning from Australia and not having lived in Burundi since he was a child, will be distinguished from, and distinguishable from, these people. I do not accept that he will be categorised by the authorities or anyone else as forming part of the group of more recent departees who fled violence on the basis of the political situation at that time. I find that on return the applicant would be able to distinguish himself by explaining when he left Burundi if he is questioned. I do not accept that the applicant will be harmed on the basis of being a returnee to Burundi who fled the country when he was a child and has lived in Australia for his adult life, I do not accept that he will be marginalised and treated as a source of all problems therefore.
There is a related claim that the applicant will face harm on the basis of being a returnee to Burundi, having lived most of his life outside of Burundi and having lived in Australia, a country critical of Burundi, and being a returnee from a wealthy country, and having family in Australia, the applicant would be vulnerable to indiscriminate harm or he would be directly targeted for harm including crime or ransom. I find that the applicant will be able to return to Burundi as a national of that country, and, having Kirundi language skills and having worked in Australia, he will have reasonable prospects of finding a job. The country information and my reasoning above does not support that a returnee from Australia, a wealthy country, who has family in Australia is vulnerable to crime, ransom or is otherwise harmed for those reasons, nor that they increase the chance of harm to the applicant. I do not accept that his being a returnee will place him in a position where he will suffer indiscriminate or targeted harm having lived most of his life outside Burundi – as the country information indicates, there are many thousands of persons who are returning to Burundi not having lived there for some years. There is no support in the country information to conclude that returnees from western countries, or wealthy countries, are vulnerable to crime or ransom or other harm.

I do accept that as a single person in Burundi with no family the applicant will find it difficult to integrate into society. I accept that it may be difficult, even very difficult, for the applicant, not having lived there most of his life, to integrate into society. However, he speaks the main national language, Kirundi, as well as some English which is also a national language, and he has had work experience in Australia. He is of the majority ethnic group. He has reasonable prospects of finding employment and housing and I consider he also has reasonable prospects of integrating into society there. I do not accept that he will be harmed in this process, that he will suffer harm because of his lack of protection and his status as a single person with no one to protect him, nor that there is any real chance of his capacity to subsist being threatened. I do not accept that the applicant, coming from Australia, will be harmed or his chance of harm is increased because Australia may have been critical of the Burundi government. I do not accept that the authorities or anyone else in Burundi would consider that the applicant is an agent or in any way linked to an Australian government response to events in Burundi because I consider that they would draw a distinction between high-level government criticism of the regime and any individual who lived in Australia. I do not accept that the applicant will be vulnerable to crime or ransom as a returnee from a western or a wealthy country – there is no basis to support this as an issue in the country information.
The applicant has had access to health care in Australia. I accept that the applicant, having had the experiences he has had, would require ongoing mental health care. He is not currently receiving this in detention according to him, which I find of concern. The health system in Burundi is rudimentary, but there is information that many health workers have been provided with mental health training. There is also information that Burundi is working with the WHO and other agencies to make health care universally free and accessible. On the basis of this information I find that he will have access to mental health care that is free or low cost that will not be denied to him for any reason, neither his Hutu ethnicity, his not having lived in the country his adult life or any other reason.
I have considered whether the applicant will face harm or have any difficulties on the basis of his offences committed in Australia, his conviction here, and his gaoling. On the country information set out above I find that Burundi does not engage in double jeopardy, that he will not be tried again for offences here, and the country information before me does not support that he will be harmed, detained imprisoned or face any discrimination or difficulties because of his offences committed in Australia, his conviction here, and his gaoling.
I accept that the applicant will be separated from his family and his children. This will, I accept, be a great source of anguish and sorrow to the applicant, but I do not accept that this leads to serious or significant harm as those terms are defined in the legislation. I have had regard to judicial consideration of this claim.[17] In considering whether this constitutes serious harm, I find that the applicant would not be removed from Australia and therefore separated from his family for an essential and significant reason under s.5J – neither his race, religion, nationality nor political opinion. Nor would it, I find, be for any reason that could be understood as a particular social group – any such group would, necessarily, include an element relating to the claimed persecutory conduct itself, the act of removal. Further, the removal of all non-citizens who have no legal right to remain in Australia and have exhausted all avenues of appeal is a law of general application, applied to all persons who do not have such a right. In relation to the concept of significant harm, the act of removal will be to comply with the provisions of the Act, not to inflict this separation on the applicant. There is therefore absent any element of intentionality to inflict this harm on the applicant.
[17] SZQOT v MIAC [2012] FMCA 84, MIAC v SZQOT [2012] FCA 141.
I have also considered the applicant’s claims cumulatively; I have looked carefully at the characteristics of the applicant that I have accepted. I have considered whether, cumulatively, there is a real chance or a real risk of harm to him. I do not accept that there is. The information before me supports a finding that the applicant can return to Burundi with only a remote chance of harm to him for any and all of the reasons identified or apparent on the material before me.
Having carefully considered the information before me I find that there is no real chance that the applicant will be persecuted for reasons of his race/ethnicity, his membership of a particular social group of a member of his father’s family, people who have lived outside Burundi for most of their lives, returnee, returnee from a western country, returnee from Australia, returnee from a wealthy country or any other grouping, nor for his actual or imputed political opinion as opposing the current government, or for any other reason, from the Burundi authorities, the Tutsi soldiers who killed his father, Tutsi groups or Tutsis in general or from anyone else on his return to Burundi now or in the reasonably foreseeable future.
I have gone on to consider the applicant’s claims under complementary protection. The concept of subjective fear is not relevant when assessing complementary protection. I have found that the applicant is a national of Burundi and no other country. I have assessed the real risk of him suffering the defined forms of significant harm. As above I have found the applicant to be a Hutu male born in Burundi, who fled Burundi at the age of [age] after witnessing his father and other members of his family being killed by Tutsi soldiers. I have accepted that his elder brother was separated from the family and may have been killed. I have accepted that the applicant came to Australia on a humanitarian visa, which has been cancelled. I have accepted that he committed offences in Australia which led to him being jailed for some years. I have not accepted that the Tutsi soldiers who killed his father will be motivated nor be able to identify him to harm him. I have not accepted that there is such animosity between Tutsis and Hutus that the applicant will be harmed for reason of being a Hutu. I have found that the violence referred to in submissions is politically motivated violence. I have found that the applicant does not hold and will not be imputed with a political opinion that would place him at risk of being harmed in such violence, and that that violence has decreased significantly since 2015, with many people returning to Burundi. I have accepted that the applicant will be identifiable as a returnee, but found that he will not be identified as a returnee from the 2015 violence and imputed with a political opinion for this reason. I have not accepted that he will be harmed as a returnee who has lived most of his life outside the country, as a returnee form Australia, as a returnee from a wealthy country or as a returnee who has family in Australia. I have found that he will have access to mental health care, and that he will not be harmed the basis of his offences committed in Australia, his conviction here, and his gaoling. I have found that he will be separated from his family and children. The definition of significant harm requires an element of intent by a third party, and I have found that there will not be this element of intentionality in his removal. I have considered these claims cumulatively. I have found that he has good prospects of employment, housing, and integrating into Burundian society.
The applicant, when asked if there was any other basis for return, spoke of how he had changed in prison. He spoke of his wish that he could be pardoned by the Australian government for his crimes. He spoke of his need to assist his elderly mother and to be with his children. I cannot assess whether the applicant has changed, nor can I pardon him. I accept that he needs, and his family and children need, for him to remain here to care and have contact with them. These are significant reasons for the applicant wanting to remain in Australia, but they do not lead to a real chance of him facing harm on return to Burundi as I understand that concept.
I have considered all of the things I have accepted about the applicant. I have considered these individually and cumulatively and thought carefully about whether the applicant will suffer significant harm as that term is defined. I find that there is not a real risk that he will. I find that he will be able to return to Burundi, that there is only a remote chance he will be harmed in ethnic or political violence for the reasons above, that he will not be harmed for his membership of any cognisable group, that he will have good prospects of gaining a job and will be able to subsist. I find on the information before me that there is no real risk that the applicant will suffer significant harm if returned from Australia to Burundi in the reasonably foreseeable future.
Conclusions
For the reasons given above, 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). 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 criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sean Baker
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – 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; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…