2006342 (Refugee)

2006342 (Refugee) [2020] AATA 4165 (8 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006342
COUNTRY OF REFERENCE:                   Burkina Faso
MEMBER:Roslyn Smidt
DATE:8 September 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 8 September 2020 at 1:13 pm

CATCHWORDS
REFUGEE – protection visa – Burkina Faso – first protection application in 1997 refused – permanent visa grant on spousal relationship – cancellation of spousal visa due to criminal convictions – student activist – detention – mental health – returnee from west – credibility issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5H, 5J, 5K-LA, 36, 65, 499, 501(3A)
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Burkina Faso, applied for the visa on 22 August 2019. The delegate refused to grant the visa on the basis that he found the applicant’s claims to lack credibility.
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.
BACKGROUND
The applicant is [an age]-year-old man from Ouagadougou, the capital of Burkina Faso. According to his 1997 application he is a Muslim.
The applicant first arrived in Australia [in] June 1997. Department records indicate that he used his own passport and entered on a visitor visa. He applied for protection on 16 October 1997. That application was refused. The delegate’s decision was upheld by the Refugee Review Tribunal in 1998. The applicant then sought Ministerial intervention, but his request was not successful.
The applicant married an Australian citizen in Australia in February 2000. He left Australia [in] September 2001. He returned [in] December 2011 after obtaining permanent residence on spouse grounds. He travelled on a Burkina Faso passport issued in Burkina Faso in 2011. It appears that he and his wife lived in [Country 1] for much of this time. He has [Australian] citizen children born between [yea range]. It appears that his wife and some of his children reside in [Country 1]. It is unclear whether his marriage is ongoing.
In December 2013 the applicant was convicted of importing drugs and sentenced to 10 years imprisonment. He has remained in jail since that time.
On 8 November 2017 the applicant’s spouse visa was cancelled under s.501(3A). This decision was upheld by a differently constituted Tribunal.
The applicant applied for protection on 22 August 2019.
COUNTRY INFORMATION
The following is intended to provide context for the applicant’s claims.
In 1983 Captain Thomas Sankara seized power in Burkina Faso and adopted radical left-wing policies. He was ousted by Blaise Compaore in 1987.
Reports do not suggest that the mid-1990s were a time of significant repression of opposition groups in Burkina Faso. US Department of State Country Reports on Human Rights for Burkina Faso for 1995 and 1996 both report that Compaore and his party dominated the government and noted some limitations on the ability of citizens to change the government, but also observed that there were continuing moves towards greater democratisation. The reports record some cases of extrajudicial killings and torture. These do not appear to be common and most do not appear to have involved political activists, although two unarmed high school demonstrators were shot and killed for stoning a police building in 1995. The reports note that political parties and labour unions had generally been free to organise meetings and rallies without permission since 1991, but report that a demonstration by university students was broken up in 1996.
President Compaore held power in Burkina Faso until 2014 when he was ousted in a popular uprising. An election held in 2015 was described as peaceful and orderly by observers. The US Department of State Country Report on Human Rights Practices of 2019 reports on a number of restrictions on political rights and numerous human right abuses, mostly related to the government counter-terrorism activities against Islamic extremists (see below). The report notes that freedom of movement including emigration and repatriation are guaranteed by the Constitution and these rights are generally accepted by the government. It also notes the government cooperated with international organisations in providing protection and assistance to a number of groups including returning refugees.
About 61 per cent of Burkina Faso’s population are Muslims. Catholics account for 19 per cent and protestants for about 4 per cent. Burkina Faso has a history of peaceful co-existence between different religions, but there has been an increase in religious violence in recent years, mostly related to attacks by extremist Islamic groups (see below). Christians have been amongst the groups targeted by these extremists and Muslims from some ethnic groups have been stigmatised because of their perceived sympathy for extremist groups. Despite this, Christian and Muslim leaders state that religious tolerance remains widespread with members of different faiths attending each other’s celebrations and offering support in the aftermath of attacks.[1]
[1] US Department of State Burkina Faso International Religious Freedom Report 2019 >
Since 2015 there have been a large number of violent attacks by armed Islamist groups such as Al Qaeda in Burkina Faso killing hundreds of people and displacing hundreds of thousands.[2] The majority of the attacks have been in the Sahel region north of the country, near the border with Mali. Many perpetrators appear to have come from neighbouring countries but locals have also been recruited. Targets have included the government, schools, Christians and people associated with the West, mosques, mine workers, markets and villages. There also appears to be an ethnic element to some of the violence. The government response has included the formation of local militias and counterterrorism operations in 2017 and 2018 that resulted in numerous allegations of extrajudicial killings, abuse of suspects in custody, and arbitrary arrests.
[2] Human Rights Watch reports New massacres by Islamist armed groups 3 Attacks Kill 90 Villagers: Self Defence Force Raises Concerns, 23 April 2020 Armed Islamist atrocities surge Residents’ accounts point to mass executions; and Killings, Abuse in Sahel Conflict By Day We Fear the Army, By Night the Jihadists See also International Crisis Group
In 2016 and 2017 the capital Ouagadougou suffered two brutal attacks on popular restaurants which resulted in the death of 47 civilians and one member of the security forces. On March 2, 2018, fighters attacked the French Embassy and the national army headquarters in Ouagadougou, resulting in the death of eight security force personnel.
CLAIMS AND EVIDENCE
Application lodged in 1997
Copies of the applicant’s 1997 application, the delegate’s 1998 decision and the 1999 RRT decision are attached to his Department file. While there are some discrepancies in the evidence he provided at different times during the consideration of this application he consistently claimed that he had been involved in an anti-government student group while at university and that he had returned home from a meeting or protest in about 1996 to find his parents and two of his siblings had been killed. A neighbour told him that his family had been killed by security forces who were looking for him (the applicant). Following that he fled to the [Country 2]. He told the delegate he remembered that he had departed Burkina Faso [in] 5 January 1997. He remained in [Country 2] for a week before travelling to [Country 3] on a fishing boat. He worked in [Country 3] for about six months. In his initial statement he claimed that he had purchased a [Country 4] passport and used it to travel to Australia, but he later stated this was not correct. He also consistently claimed that he had been married and had children in Burkina Faso.
The applicant initially claimed that he did not have a passport for Burkina Faso and entered Australia on a [Country 4] passport. During his interview with the delegate he said that this was not correct and claimed that he had entered Australia using his own passport Burkina Faso after getting a visa in [Country 3]. It appears that evidence from the Australian High Commission indicated that he had a [Country 3] passport. The applicant later provided a copy of a passport issued to him by government of Burkina Faso. The delegate accepted that he was a citizen of Burkina Faso.
Application lodged in August 2019
Submissions to the Department
In a statement provided on 22 August 2019 the applicant claimed that he had been a student activist in Burkina Faso and that he had been imprisoned for seven months because of his political activities. Some of the people who were imprisoned with him were killed, but he was released after some supporters paid officials. He was told to leave the country. Following this his father was captured and tortured to death. He fled to [one country] and then to [Country 3] where he obtained a student visa and came to Australia.
In support of his application the applicant provided a letter from his mother dated 5 September 2019 which states that the applicant’s father, had been arrested several times and had caught a disease while in jail which led to his death. Following this the family was forced into hiding and had to move around for survival and the applicant was forced to flee his homeland. The applicant also provided a death certificate for his father. It states that he died in 1997 but does not give a cause of death.
The applicant also provided an article from the Sydney Morning Herald dated 31 October 2014 which reports on the overthrow of the President and a number of articles on attacks which appear to have been carried out by terrorists from groups such as ISIS from about 2015 to 2020.
The applicant was interviewed by the delegate on 17 December 2019. He confirmed that the incidents set out in his 2019 statement occurred in 1996 and that his mother and siblings resided in Burkina Faso.
When asked about his political activities his responses were vague and lacking in detail. He said that he had been detained for about one or two months because of his political activities and released after his father and others paid a bribe. Part of the agreement for his release was that he should leave Burkina Faso immediately. His father was imprisoned and tortured to death after his departure.
The delegate asked the applicant to confirm that he applied for protection in 1997. He initially denied that this was the case, then changed his evidence and said that he had applied for protection, but he had not had assistance from anyone when he lodged an application in 1997. The delegate noted that Department records showed that the applicant had been represented by a migration agent in 1997.
The delegate noted that the applicant had applied unsuccessfully for a review of the delegate’s decision in 1997 and that he had sought Ministerial intervention in 2000. He observed that the claims made in the request for Ministerial intervention differed substantially from his current claims, mostly significantly because they included the claim that his parents and siblings had been killed before he left Burkina Faso in 1997 and that he was married with children prior to leaving Burkina Faso. The applicant said that the information in his 2000 Ministerial application was incorrect. He said that he had applied for protection in 1997 for the reasons stated in his current application. He said that the people referred to as his wife and children in his first application were in fact his siblings.
Following the interview, the delegate obtained copies of the applicant’s 1997 application, the previous delegate’s 1998 decision and the 1999 RRT decision in relation to those claims all of which include claims which are broadly similar to the information in his 2000 application for Ministerial intervention.
The delegate accepted that the applicant may have had some involvement in political activities in Burkina Faso but found most of his claims lacked credibility. In reaching this conclusion he noted that the claims made by the applicant in 1997 were markedly different from those made in 2019 and found his explanation for these discrepancies implausible as he had repeated these claims in written and oral submissions to the Department and the Tribunal. He also noted that the applicant had initially denied lodging an application in 1997 and when confronted with the evidence that this was not true, falsely claimed that he had not been represented when he lodged that application. He also noted that the applicant had made no mention of fearing that he would be killed because of his past political involvement when responding to a question about any problems he might face if he returned to Burkina Faso in his application for revocation of the cancellation of his partner visa in 2017 or during a hearing of a differently constituted Tribunal in relation to the application.
Submissions to the Tribunal
On 1 August 2020 the applicant provided the following articles:
· An Al Jazeera article dated 1 June 2020 regarding an attack on a bus in Sourou Province in the south of Burkina Faso which killed at least 14 people.
· An ABC report dated 6 March 2020 which reports on a terrorist attack on a market and a humanitarian convoy in Kompienga Province in Burkina Faso.
· A New York Times article dated 17 February 2020 which reported an attack on a church in north western Burkina Faso.
· An Al Jazeera article dated 17 February 2020 regarding an attack on a church in a Yagha Province which left 24 people dead.
· An Al Jazeera article dated 3 February 2020 regarding an attack on a village in Seno Province.
· A New York Times article dated 4 January 2020 which reported on an attack on a bus carrying students in a northern province of Burkina Faso.
· A BBC article dated 25 December 2019 which reports on a terrorist attack on a military base and the town of Arbina which killed some 35 people mostly women.
· A Guardian article dated 15 August 2017 regarding a terrorist attack on a restaurant in Ouagadougou which was popular with foreigners. At least 18 people were killed.
· A Guardian article dated 17 January 2016 regarding a terrorist attack on a hotel in Ouagadougou in which 29 people were killed, many of them foreigners.
· A Sydney Morning Herald article dated 31 October 2014 which reports protests which led to the toppling of President Blaise Compaore after 27 years after which the army dissolved Parliament and took power.
On 5 August 2020 the applicant provided a submission with a number of links to websites which reported on the situation in Burkina Faso. On 6 August 2020 he was advised if he wished me to consider any information from these websites, he would need to forward the specific articles or reports.
On 10 August 2020 the applicant provided the following articles:
· DFAT Smart Traveller advice dated 4 September 2019 which states that travel to Burkina Faso should be reconsidered due to a high threat of terrorism or kidnapping in some parts of the country and lack of stability since the 2015 elections.
· An article entitled Past Murders Resurface in Burkina Faso as Activists Push for Justice and Transparency from IPI Global Observatory dated 19 June 2015 which reports on court findings in relation to the death of a journalist in 1998.
· A Wikipedia entry on Thomas Sankara, former Prime Minister of Upper Volta (now Burkina Faso) who was killed in 1983.
· A Wikipedia entry on Blaise Compaore, President of Burkina Faso from 1987 until 2014. The entry is brief and contains no useful information on the period during which the applicant claims to have been politically active.
· A Wikipedia entry on Burkina Faso which contains no useful information on the period during which the applicant claims to have been politically active.

On 10 August 2020 the applicant also provided a copy of a letter which was sent by the Presiding Member considering the cancellation of his spouse visa. It relates to a request for confidentiality and notes that the charges which had resulted in his conviction on drugs charges had already been reported in a number of places, including a report on a County Court trial in 2013, a Court of Appeal hearing in 2014 and a number of stories in the Australian media in 2014/2015.
On 10 August 2020 the applicant provided a statement dated 4 June 2020 which was originally provided to a differently constituted Tribunal considering the cancellation of his spouse visa. It states that he fled Burkina Faso in late 1995 after being detained by police because he was a student activist. His father and some supporters from the student movement paid money to prison officials to secure his release after which he fled the country. The government searched for him and detained his father who was tortured and later got sick and died. The applicant said that after he arrived in Australia his health deteriorated. He was diagnosed with post-traumatic stress disorder (PTSD) and he continues to suffer from this problem until today.
The statement refers to eight supporting documents. Some appear to be articles provided earlier. It also refers to a document entitled Refugee Review Tribunal and a report from [a] psychologist from [an organisation]. None of these documents were provided to the Tribunal at that time.
Tribunal hearing 10 August 2020
The applicant confirmed that he feared returning to Burkina Faso because he had been involved in anti-government activities in about 1996. He also claimed for the first time that he feared returning to his homeland because he had been imprisoned in Australia, because he had lived in western countries for many years and would be viewed as an infidel, because he suffered from a mental illness and because of problems associated with the coronavirus pandemic. At that time no medical evidence regarding his mental health issues had been provided.
I advised the applicant that I had significant difficulty accepting his claims regarding his involvement in politics in Burkina Faso in the 1990s because he had given inconsistent accounts of events which occurred prior to his departure from his homeland and because his claims appeared to be at odds with evidence regarding the situation in Burkina Faso at the time he claims to have been detained.
I noted that the applicant’s 1997 application made no mention of being detained at any time and stated his parents and two of his siblings had been killed immediately before he left Burkina Faso. However, in his current application he claimed that he had fled Burkina Faso after being detained and that his father had been killed after he left the country and his mother and siblings were still living in Burkina Faso. I also noted that he had initially stated that he was detained for seven months, but later said that he was only held for one or two months. I observed that these inconsistencies appeared to indicate that he was not a credible witness and invited him to comment.
The applicant said that he did not deny that he had made the claims set out in his 1997 application. He said one reason for this was that he had not been aware that he was suffering from PTSD at the time he lodged that application. He said that he now wanted to provide an accurate account of what happened. He repeated the essence of the claims made in his current application. He said that he had been tortured while in detention for two months and offered to remove his shirt and show me scars which he claimed were caused by that treatment. I advised him that I accepted that he had scars, but as I would not be able to determine what caused them or when these injuries occurred it was not necessary for him to show them to me.
The applicant said his father was also captured and tortured at some time. He said that he had difficulty recalling when this occurred because he had difficulty with numbers and dates, but he thought it was in late 1995. When asked to confirm that his father had died before he left Burkina Faso, he said that his father had died just before he left the country. I observed that this appeared to be inconsistent with his earlier evidence.
I asked the applicant to confirm that he had given differing accounts of events in 1997 and 2019 because he had difficulties with numbers and dates and because he had been suffering from PTSD since his arrival. He said that this was correct. He said that he had not realised he was suffering from PTSD until he spoke to [the psychologist]. I asked if there were any other reasons why he had given different accounts of his reasons for seeking protection. He said that every time he thought about his past, he experienced flashbacks.
I noted that a letter from the applicant’s mother stated that his father had died of an illness, which was at odds with the claim that he had been murdered or tortured to death. The applicant said that his father died of an illness which was the result of torture. He said that his father had suffered from internal bleeding and many things.
I noted that the applicant had claimed that he was married with children prior to leaving Burkina Faso in1997, but he now denied that this was true. The applicant said that he had never been married. He said that there might have been confusion because he was suffering from PTSD and from flashbacks. He added that in 1997 his English had been poor and he was speaking in broken French so there might have been problems with translation.
I observed that human rights reports published in the late 1990s did not suggest that critics of the government were at risk of being killed or detained for extended periods at that time.
The applicant maintained that his claims were true. He said that the media did not know the truth. He claimed that many of his friends had been killed or captured and never seen again. He also noted that the former President of Burkina Faso had been killed and said that many mass graves had recently been discovered.
I noted that President Compaore had been overthrown in a coup in 2014 and observed that even if the applicant had been involved in student politics in the late 1990s the situation had clearly changed and the evidence did not suggest that he would be at risk of harm if he returned to Burkina Faso because he had protested against the former President . The applicant said that students were continuing to protest in Burkina Faso and his history as an activist was on the record so he would still face problems. He said that he had been released on condition that he left the country and he would be captured at the airport and tortured and killed if he returned to Burkina Faso.
The applicant said that he had not been involved in political activities since leaving Burkina Faso.
I asked the applicant if he wished to add anything in relation to his political activities in Burkina Faso. He repeated the claims made earlier.
I asked the applicant why he believed he would be at risk of harm on return to Burkina Faso because he had spent time in prison in Australia. He said that his case had been reported in the media in 2014 and these articles had appeared on the internet where they could be read by anyone. Later in the hearing he added that there were informants in the local community. He said that being imprisoned was unthinkable in Burkina Faso and anyone who had been in prison in Burkina Faso was at risk of harm. The situation was worse for those who had been jailed outside the country and he feared for his life if he returned to his homeland.
I asked the applicant who he feared would harm him because he had been in prison in Australia. He said that he mainly feared the government, but he also feared members of the community. He said that he had known people who faced problems after being in prison when he lived in Burkina Faso. I observed that it seemed unlikely that anyone who had gone to prison in Burkina Faso for any reason would be at risk of serious harm because of this after their release from jail. He maintained that this was the case.
I asked the applicant why he feared he would be harmed on return to Burkina Faso because he suffered from PTSD. His response was somewhat confused. He spoke about an incident in prison in Australia when he appears to have been assaulted. After this happened everything came back to him because he was suffering from PTSD and he needed psychiatric care. He said that he feared that his illness would deteriorate if he returned to Burkina Faso and he would not be able to cope. He said that he was concerned that someone would harm him or that he would harm someone else if he was involved in an incident similar to the prison assault and concerned that he would not get adequate help.
I asked the applicant who he feared would harm him because he had mental health problems. He did not name any particular group or individual who might harm him, but said that people suffering from mental health were sometimes attacked or harmed by other people. He said that he had observed this in the prison community in Australia.
I asked the applicant why he would not be able to get help for his mental health problems in Burkina Faso. He said that he did not think that the government would help him because he was already known as a political activist. In addition, he would not have the money to get specialist care.
The applicant said that he feared he would be harmed if he returned to Burkina Faso because he had lived in western society and he would be considered an infidel. He said that he feared members of the general community and members of extremist groups who were present throughout society. I observed that while I was aware of extremist attacks on a range of targets in Burkina Faso it was not my understanding that ordinary citizens were likely to be targeted or kidnapped by these groups. He responded that an Australian doctor had been kidnapped some years earlier. He said that there were many such cases, but they were not all reported. I advised him that I was aware of the case of an Australian doctor, but his case appeared to be significantly different form the applicant’s circumstances. The applicant said that his life would be in danger if he returned to Burkina Faso.
The applicant said that he feared retuning to Burkina Faso because of the COVID-19 pandemic. I asked him for more specific information on his fears. He said that COVID-19 was present in Burkina Faso and the government had advised people not to come to the country.
Post hearing submissions
On 12 August 2020 the applicant was asked to provide copies of the attachments mentioned in his submission dated 4 June 2020 and provided on 20 August 2020.
On 20 August 2020 I obtained a copy of [the psychologist]’s report dated 18 August 1999 and a report by consultant psychiatrist, [Dr A] dated 25 March 1999 from the Tribunal file relating to the cancellation of the applicant’s spouse visa.
[The psychologist]’s report states that he had been providing counselling to the applicant since February 1998. It states that the applicant has memory problems resulting in a lack of clarity, problems with chronology and a tendency to omit important facts when narrating his history. It also notes that he had a strong reaction when discussing the murder of family members. It observes that it is difficult to determine the reasons for the applicant’s idiosyncratic presentation and recommends a specialist cognitive assessment.
[Dr A]’s report states that the applicant had stated that he told him that he had been politically active in Burkina Faso and his parents and siblings had been murdered by police who were hunting for him. Because of this he fled to [Country 3] where he worked for six months before coming to Australia. He also told [Dr A] that he had left a wife and two children in Burkina Faso. The report states that in his opinion the applicant was suffering from severe PTSD related to his memories of the massacre of his family. It also states that the applicant was able to speak English at the time he provided counselling.
On 21 August the applicant provided:
·An abstract from a report entitled A Stolen Revolution. The source and date of this publication are unclear and it appears to relate to the overthrowing of the Thomas Sankara government.
·A letter dated 18 August 2020 from [a person] who the applicant identified as a fellow student activist from Burkina Faso who now lives in [another country]. The letter states that the applicant fled Burkina Faso after being detained because he was a student activist. Following the applicant’s departure his father who was also a political activist was arrested and later died as a result of his treatment. It states that the applicant risks being killed if he returns to Burkina Faso.
·A letter dated 19 August 2020 from [a second person] who the applicant identified as his brother. The letter states that the applicant fled after being detained because of his political activities.
·A report from an unknown source which provides an overview of developments in Burkina Faso in 1994 and earlier years. While it notes a number of problems it contains no information which suggests that student activists risked prolonged detention or death.
·The US Department of State Country Report on Human Rights Practices in Burkina Faso in 1993.
·A copy of [the psychologist]’s report.
On 25 August 2020 the Tribunal wrote to the applicant pointing out than the claims made in his 1997 protection visa application regarding the murder of his family also noted in the reports by [the psychologist] and [Dr A]. The letter also noted that according to [Dr A]’s report the applicant had left his wife and children in Burkina Faso and he spoke English at the time. The applicant was invited to comment on this information.
The Tribunal’s letter also observed while [the psychologist] and [Dr A]’s reported that the applicant was suffering from depression or PTSD neither suggested that he was delusional or suffering from mental health issues which could explain why he stated that his parents and siblings had been murdered and that he was married with two children if these claims were not true.
On 4 September 2020 the applicant provided a statement in which he said that he had been a humanitarian activist in Burkina Faso. He noted that my comments regarding the scars which he had wanted to show me and said that the reports from [Dr B] and [Dr A] confirmed his claims.
With regard to the inaccurate claims about the murder of his parents and siblings, he claimed that he was told that they were murdered when he was released from prison and he believed this was the case. When he arrived in Australia he was scared and confused. He was homeless and lived with [two welfare organisations]. He was suffering from PTSD and was prescribed medication to help combat his depression. It was not until some time after treatment began that he discovered that it was his neighbours and not family, who had been murdered. He also claimed that his English had been poor when he lodged his first application and he now believes that a lot of the information he provided was lost in translation.
With regard to the statements regarding his wife and two children in Burkina Faso, he said that this information was false and the signature on his application was not his.
The applicant provided a copy of a report dated 6 December 1998 from his GP [Dr B] which states that he had first seen the applicant in February 1998 when the applicant told him that his family had been murdered in Burkina Faso because of his political activities. The applicant also told [Dr B] that he had been taken to the police station four times and had been ill-treated or tortured on each occasion. The report notes that the applicant has a scar on his [body] and right side which he stated were the result of his treatment while in detention in Burkina Faso. [Dr B] diagnosed the applicant as suffering from agitated depression and referred him to [Dr A].
The applicant also provided a partial copy of his 1997 protection visa application which was prepared with the assistance of [a] Legal Centre and a French interpreter. The application names the applicant’s wife and two children. Attached to the application is a vaccination certificate which states that he was vaccinated in Burkina Faso for yellow fever [in] December 1995 and cholera [in] January 1996. The applicant claimed that he had never held a passport for Burkina Faso and had used [a Country 4] passport which he had thrown away.
CONSIDERATION OF CLAIMS AND EVIDENCE
I did not find the applicant to be a truthful or credible witness and I do not accept that he fled Burkina Faso in 1995 or 1996 because he was of adverse interest to the authorities because he was a student activist.
In the irst place, there are significant differences between the claims made by the applicant in his 1997 protection visa application and the claims put forward in support of his current application. In 1997 he claimed that he fled after his parents were killed by members of the security forces who were looking for him. There is no suggestion that he spent months in detention in this application, although he appears to have told [Dr B] that he had been taken to the police station on a number of occasions. In his current application he claimed that he fled after being detained for a prolonged period because of his political activities. There is no suggestion that most of his family were murdered shortly before he left his homeland in his current submissions.
The applicant has given a number of conflicting reasons for these inconsistencies. During his interview with the delegate he initially sought to deny that he had applied for protection in 1997 and when advised that his current claims were significantly different from information in his request for Ministerial intervention lodged in 2000 said that this information was incorrect and claims in his 1997 application were the same as those in his current application. He also claimed that he did not have the assistance when preparing that application. At the hearing he agreed that he had provided a different account of events in his 1997 application and said that the difference occurred because he was suffering from PTSD, had difficulty with dates and numbers, did not speak English well and only spoke broken French. In post hearing submissions he claimed for the first time that he had believed his family had been killed before he left Burkina Faso because this is what he was told at the time, but he later learned this was not true.
I do not accept any of these explanations. Not only did that applicant state that his parents and siblings were killed in his 1997 protection visa application, he repeated this claim during counselling sessions with [the psychologist], [Dr B] and [Dr A]. It is clear from the extract from his 1997 application which was provided on 4 September 2020 that he had legal assistance and the services of a French interpreter when preparing his application and [Dr A]’s report indicates that he spoke English. And while having difficulty remembering dates and confusion regarding numbers and suffering from PTSD could cause an applicant to forget some claims or provide a confused account of events, I do not accept that any of these problems would have caused the applicant to claim repeatedly over several years that most of his family had been murdered in about 1996 if this had not occurred. Finally, if the applicant had believed that his family had been murdered when he first arrived in Australia but later learned that this was not true, I believe he would have mentioned this in his initial statement, during his discussions with the delegate or at the very least at the hearing. He failed to do so and I find this explanation was concocted late in proceedings in an attempt to overcome the problems with his claims.

The applicant had also given differing accounts of how long he was in detention in Burkina Faso, when and why his father died and whether he was married with children prior to leaving Burkina Faso. No credible explanation has been provided for these inconsistencies and I find them to be further indications that the applicant is not a credible witness.
Secondly, while it is clear that there were some political issues and human rights abuses in Burkina Faso in the mid-1990s, none of the available evidence suggests that student activists who participated in demonstrations were being killed, abducted, detained for prolonged periods or forced to flee the country during that time (see above). While this alone would not have been sufficient for me to reject the applicant’s claims entirely, I find it a further indication that his claims lack credibility.
I do not accept that the applicant was a political activist in which he fled Burkina Faso or that he fled his homeland in about 1996 because he was at risk of serious harm. I find that these claims were concocted to support his application for protection and residency in Australia.
In reaching this conclusion I have considered the reports from [the psychologist], [Dr B] and [Dr A] which state that the applicant was suffering from PTSD in the late 1990s as a result of his experiences in Burkina Faso. However, these diagnoses were based primarily on the applicant’s claim that his family had been murdered, a claim which he now states is untrue. It is perhaps possible that the applicant suffered from symptoms of PTSD for some reason when these men assessed and counselled him in the late 1990s, but there is no credible evidence before me which suggests that this was the result of trauma related to his involvement in political activities in Burkina Faso.
I hav also noted [Mr B]’s report which states that the applicant has a scar on his [body]. I accept that the applicant has these scars, but in light of my findings regarding his credibility and in the absence of any verifiable evidence, I do not accept that they are the result of ill-treatment or torture inflicted on the applicant while he was in detention in Burkina Faso.
Finally, I have considered the letter provided following the hearing, reportedly written by the applicant’s brother and a friend. These letters purport to confirm claims which I have found to be lacking in credibility. No verifiable evidence has been provided regarding the identity of the authors of these letters or their relationship to the applicant. I believe that these letters were written by the applicant or at his instructions for the purpose of supporting his claim for protection and I have given them no weight.
After considering all of the relevant evidence, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Burkina Faso because he is of adverse interest to the authorities because of his past or present political opinions.
I have considered the applicant’s claim that he is at risk of harm on return to Burkina Faso because he was convicted of drugs charges and spent several years in prison in Australia. I find it unlikely that the authorities or anyone else in Burkina Faso would be monitoring the Australian media or would happen upon the reports on the applicant’s case which appeared in the Australian media. More significantly, I find the claim that former prisoners in general or people who have served time in prison outside Burkina Faso in particular are at risk of harm in Burkina Faso because they have spent time in prison implausible.
In the absence of any independent evidence which supports this claim and in light of the fact that this claim was not raised prior to the hearing and my findings regarding his credibility, I do not accept that the applicant genuinely fears harm on return to Burkina Faso because he has spent time in jail in Australia. I believe he concocted this claim to support his application for protection in Australia.
I have considered the applicant’s claim that he would be viewed as an infidel and face physical harm and other problems in Burkina Faso because he has spent time in a western country. The applicant’s failure to mention this claim in his submissions to the Department and his demonstrated willingness to concoct claims casts doubt on the applicant’s claim to fear harm for this reason. However, even it I accept it at face value, I am not satisfied that the applicant faces a real chance of suffering serious or significant harm for this reason.
Like some 60 per cent of the population of Burkina Faso the applicant is a Muslim. As noted above, Burkina Faso has a history of religious tolerance. There is nothing in the evidence before me which suggests that the applicant would be viewed as an infidel by members of the general population in Burkina Faso because he has lived in western countries.
While westerners are amongst those who have been targeted by Muslim extremists, the evidence suggests that this has involved attacks on places where they are likely to reside or gather, such as hotels, not targeted attacks on individuals who had lived abroad. In addition, the overwhelming majority of extremist attacks have been in the north of the country or rural areas. The only attacks in the applicant’s home city of Ouagadougou mentioned in the available evidence are attacks on two restaurants, one in 2016 and another in 2017 and an attack on the French Embassy and the national army in 2018.
After considering all of the relevant evidence I am not satisfied that there is a real chance that the applicant would suffer serious or significant harm on return to Burkina Faso from extremists or members of the general community or Islamic extremists because he would be viewed as an infidel because he has lived in the west for many years or for any other reason.
I have considered the applicant’s claim that he would face serious or significant harm on return to Burkina Faso because he suffers from PTSD. The only medical evidence provided in support of the applicant’s claim that he has a mental illness is over 20 years old and involves diagnoses based on claims that the applicant now states are untrue. In these circumstances I am not satisfied that he is currently suffering from PTSD or any other mental illness. It follows that I am not satisfied that there is a real chance that he would face serious or significant harm on return to Burkina Faso because he has a mental illness.
Finally, I have considered the applicant’s claim that he would be at risk of harm if he returns to Burkina Faso because of the coronavirus pandemic. Coronavirus is a global pandemic which has seen many nations close their borders or restrict entry. It may be that the government of Burkina Faso has taken such measures or advised people including citizens to stay away. However, there is no suggestion that this is anything but a relatively short-term health measure. Nor has any evidence been provided which suggests that the applicant is at risk of contracting COVID-19 or of being denied treatment if he fell ill or suffered serious harm of any kind for any of the reasons set out in s.5J(1) or that there is a real risk that he would suffer significant harm as defined in relation to the complementary protection criteria because of the presence of coronavirus in Burkina Faso.
I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Burkina Faso for any reasons related to the coronavirus pandemic.
DOES THE APPLICANT MEET THE REFUGEE CRITERION?
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution if he returns to Burkina Faso.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Burkina Faso. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burkina Faso, there is a real risk that he will suffer significant harm.
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 any of the criteria in s.36(2).
DECISION
The Trbunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…

Report 287 Africa 24 February 2020 Burkina Faso: Stopping the Spiral of Violence and US Department of State Country Report on Human Rights Practices 2019.

[2020] AATA 4165

8 September 2020

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction