2007184 (Refugee)

[2021] AATA 313

2007184 (Refugee) [2021] AATA 313 (11 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007184

COUNTRY OF REFERENCE:                   Burundi

MEMBER:Tania Flood

DATE:11 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Statement made on 11 January 2021 at 7:06am

CATCHWORDS
REFUGEE – Protection Visa – Burundi – complementary protection – arrival as dependant on Woman at Risk visa – cancellation of visa due to claimed criminal charge – threats from ex-partner – risk of persecution in Burundi – unable to relocate – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36(2)(aa), 65, 499

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Burundi, applied for the visa on 2 July 2019. The delegate refused to grant the visa on the basis that the delegate was not satisfied that there is real chance or a real risk the applicant will suffer serious or significant harm on return to Burundi, due to generalised violence and his fear of being unable to subsist in Burundi.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Burundi for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Burundi there is a real risk that he will suffer significant harm.

10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Summary of claims

11. According to information contained in his application for a protection visa, the applicant is a [an age]-year-old citizen of Burundi. He was born in Rwanda and lived at a refugee camp in Tanzania. His mother, sister, and [relative] reside in Australia. He is unemployed and has no previous employment or education history.

12. He was included as a dependent on his mother’s Woman at Risk (Subclass 204) visa, granted on 4 March 2006. He arrived in Australia [in] April 2006. His subclass 204 visa was cancelled on 8 May 2019 under s 501 of the Migration Act.

13. He lodged an application for a protection visa on 2 July 2019. On 14 April 2020 a delegate of the department refused his protection visa application.

14. The applicant made the following claims on his protection visa application form:

15. He fled Burundi with his mother when he was [age] years old due to violence and killings by the militia. They first went to Rwanda and then settled at Tanzania [Refugee] Camp.  He travelled to Australia [in] April 2006 after his mother was granted a Woman at Risk visa.

16. His father was killed by the militia during a raid on their village. He has no relatives and would not be able to survive in Burundi.

17. His family did not seek help in Burundi as there was no formal government. He claims the situation in Burundi is ‘chaotic’ due to tribal violence, and the authorities cannot protect him.

18. He did not move to another part of Burundi as there was violence throughout the whole country. Burundi is also a small nation, which is subject to political unrest and human rights abuses. 

19. He claims that if he returns to Burundi, he will be subjected to discrimination and brutal treatment and killed. He also has deep concerns regarding the continued worsening of the humanitarian situation in Burundi. He claims that there are approximately 429 000 people in Burundi seeking refuge in neighbouring countries.

    Submissions to the Department

20. The following documents were submitted to the Department:

21. A Statutory Declaration declared by the applicant on 12 September 2019. The applicant stated that his subclass 204 visa was cancelled as he was convicted of rape against his daughter. He stated that the conviction was incorrect, that he was poorly represented in the criminal proceedings, and that the jury was prejudiced against him as he is a black African. He currently has an appeal application before the Supreme Court of [State 1] seeking to have the conviction set aside and a retrial.

22. A Statutory Declaration by the applicant’s [mother] (undated). [The applicant’s mother] stated that she is [age] years old and an Australian citizen. She arrived in Australia with her son, daughter, and granddaughter on a subclass 204 visa in 2006. She stated that she is not in good health and has severe back problems and impaired mobility. She stated that she is not in contact with her daughter and is dependent on the applicant for support. In addition, [the applicant’s mother] stated that she does not believe that the applicant was guilty of the criminal offence and that if he is deported to Burundi, she will suffer severe emotional, mental, and physical hardship. 

23. A medical letter in relation to the applicant’s [mother]. The letter, dated 11 October 2019, was written by [Dr A] and addressed to [State 1] Legal Aid. [Dr A] stated that the applicant’s mother has multiple conditions including chronic pain and depression and is in dire need of care from her son, who is her caregiver. [Dr A] submitted that the applicant should be given a lenient sentence in relation to the rape offence, as his mother requires personal support.

24. The applicant’s migration agent submitted an order of Court of Appeal, Supreme Court of [State 1]. The order, dated [April] 2020, indicates that the appeal was allowed and a new trial was ordered in relation to the applicant’s two criminal convictions.

    Submission to the Tribunal

25. The applicant’s representative made submissions to the Tribunal on 25 November 2020. In an email to the Tribunal, the representative stated that he is pursuing an application to the High Court of Australia for a writ of certiorari in relation to the purported cancellation of the applicant’s subclass 204 visa under s 501(3A) of the Act. A copy of the application was attached to the email.

26. The applicant’s representative also provided a written submission to the Tribunal dated 25 November 2020. The representative submitted that the applicant fears persecution due to his race. He stated that the applicant’s mother is of mixed Hutu and Tutsi descent, and that she had never told the applicant of his ethnic or racial identity out of fear for his safety. It was submitted that the applicant’s ‘inability to positively identity his ethnic or racial identity’ amounts to serious harm under s 5J (5) of the Act.

27. In addition, it was submitted that the applicant fears persecution due to his membership of particular social groups, of persons who have been deported or otherwise forcibly returned to Burundi because of past criminal conduct, and persons who have been absent from Burundi for a significant length of time and have no substantial ties to Burundi.

28. In relation to his criminal history, it was submitted that the applicant is likely to be imprisoned, tortured, and executed by government security forces on return to Burundi. The representative stated that his is supported by country information published by the UN Human Rights Council.

29. In relation to his absence from Burundi and his lack of substantial ties in Burundi, the representative referred to an opinion by [Mr A]. It was submitted that the people who now possess the applicant’s ancestral family land would perceive the applicant’s return to Burundi as a threat and believe that the applicant is trying to reclaim the land. It was submitted that this would lead to the extra-judicial killing of the applicant.

30. The representative also stated that the applicant is owed complementary protection obligations as he is at risk of being subjected to serious harm from various parties including the Burundian security forces, the persons who possess his ancestral family land, and members of his ex-partner’s family. It was submitted that the family members would seek to impose ‘mob-justice’ on the applicant for his criminal offences.

31. The following documents were attached to the submission:

32. A Statutory Declaration by the applicant’s mother[dated] 30 October 2020.

    ·[The applicant’s mother] stated that she was born in Burundi in [year] and her family is from the Kirundo province in Burundi. She is of mixed ethnic origin; her mother was a Hutu and her father was a Tutsi. She identifies as Burundi and does not identity as Tutsi, Hutu, or mixed. She has six children; three of her children live in refugee camps in [Africa], two live in Australia, and one son lives along the Burundi-Tanzania border. [The applicant’s mother] further stated that apart from her children in Africa, she is only in contact with her sister[who] lives in a refugee camp in Rwanda.

    ·She fled Burundi for Rwanda in 1988 due to the inter-ethnic violence between the Hutus and the Tutsi in Burundi. In Rwanda, she met the applicant’s father[who] was a Hutu from Burundi. The applicant was born shortly before the genocide on Hutus began in Rwanda. The family subsequently fled to Congo, where they remained for five years. At some point, [the applicant’s father] returned to Rwanda, where he was killed for unknown reasons. In 1999 she and three of her children, including the applicant, were transported from Congo to Bujumbura, Burundi, and lived in Kirundo province. In 2002, they fled to Tanzania, due to ‘random killings’ going on in Burundi. They lived at [a] refugee camp in Tanzania for four years before coming to Australia.

    ·[The applicant’s mother] stated that the applicant was [age] years old when he was seduced by an older Burundian woman in Australia[and] had four children with her. After the applicant separated from [her], she ‘put a curse on him and said she would ruin his life’. She accused the applicant of touching their daughter, leading to his criminal conviction and sentence. She then returned to Burundi. [The applicant’s mother] submitted that Burundi has ‘a culture of retribution’ and that the applicant is at risk of being harmed by other members of the Burundian community due to his criminal offences. She stated that the government will not help him.

    ·[The applicant’s mother] stated that she has not told her children that they are of mixed Hutu and Tutsi heritage as this would put them at risk of harm. She fears that if the applicant returns to Burundi, the fact that he does not know his ethnic identity would also put him at risk.

33. Copy of a resume for [Mr A], which indicates that he is a PhD Candidate in international law at [named] University, holds various academic qualifications in international relations, and is a published author and university lecturer.

34. A file note of a telephone conversation between the applicant’s representative and [Mr A], recorded on 23 November 2020.  The file note provides the following information:

    ·[Mr A] was born in Burundi and was accepted as a refugee in [another country]. From his own personal experience, study, and academic research, he is able to provide an opinion on the circumstances that a Burundian citizen would face following the removal from Australia on criminal justice grounds.

    ·He is of the opinion that the applicant will be immediately imprisoned, tortured, and killed by state security forces if he is deported, due to his criminal history. He stated that while Burundi does not have a culture of ‘honour killings’, it does have a culture of ‘mob killings’ which puts the applicant at risk of harm, on account of his criminal offences against a Burundian child in Australia.

    ·[Mr A] stated that the applicant is at risk of extra-judicial killing by local villagers, family members, or other persons who now possess his ancestral family lands. He stated that Burundi is a small country and it would be difficult for the applicant to conceal his identity.

    ·He also stated that the government of Burundi commits gross human rights violations and offers little protection against extra-judicial killings in the community.

    ·In addition, the government will refuse to recognise the applicant as a citizen of Burundi, because he was born in Rwanda and has limited connections to Burundi.

35. Copy of a report titled ‘Genocides, Politicides, and Other Mass Murder Since 1945, With Stages in 2008’ published by Genocide Watch in 2008.

36. Copy of a report published by Amnesty International in 2015, titled ‘Just Tell Me What to Confess to: torture and other ill-treatment by Burundi’s police and intelligence service since April 2015.’

37. Copies of two reports by the UN General Assembly titled ‘Report of the Commission of Inquiry on Burundi’ and published in August 2019 and August 2020.

    FINDINGS AND REASONS

38. The applicant appeared before the Tribunal on two separate occasions on 30 November and 23 December 2020 to give evidence and present arguments in support of his claims.  The Tribunal also heard testimony from the applicant’s mother and [Mr A] whose qualifications are outlined above.  The applicant’s oral evidence and the testimony of the witnesses is discussed in the below assessment of the applicants claims for protection.

    Nationality/receiving country

39. Based on the available information the applicant was born in Rwanda to Burundian parents.  For the purpose of this review the Tribunal accepts the applicant is a national of Burundi.

    Feared harm from ex-partner’s family in Burundi

40. The Tribunal first considered the applicant’s claimed fear of harm from his ex-partner’s family in Burundi.  Relevantly, the applicant claims that he formerly had a relationship with a Burundian woman he fathered four children with, in Australia.  He acknowledged that he was charged, convicted and sentenced to a prison sentence for sexually assaulting one of the children from the abovementioned partnership.  The Tribunal notes the applicant’s criminal convictions are the subject of ongoing legal proceedings following an order dated [April] 2020 allowing him a retrial.

41. During the hearing the applicant stated that he fears harm from his ex-partner’s family in Burundi on account of the nature of his criminal convictions.  He said he is aware that his ex-partner returned to Burundi for a period of time where she married a Burundian citizen.  He said she has since returned to Australia and is residing in [City 1] although he has no direct contact with her.  The applicant stated that he has met various of his ex-partners family members who live in Australia and her family members in Burundi know of him and have seen photographs of him.  When asked how he can be sure that his ex-partner’s family in Burundi are aware of his criminal offences he said that his ex-partner made the allegations herself and he is certain that she would have informed her family in Burundi about it. 

42. During the hearing the applicant stated that his ex-partner’s family in Burundi reside in Bujumbura.  He said that if he is forced to return to Burundi his ex-partner will know that and will inform her family that he has returned.   He also said he is in contact with other members of the Burundian community in Australia and they will know he has been sent home and people will talk about that here and with people in Burundi. 

43. The applicant’s mother confirmed she knows her son’s ex-partner as well as her father and brother who live in [City 1].  She said that her son’s ex-partner previously lived with her and she told her that her sister is married to a soldier.  She said she has not spoken to her son’s ex-partner or any of her family in Australia for several years but she knew she had returned to Burundi because people in the community keep her informed about her movements particularly as it relates to the grandchildren.  She said she is aware that her son’s ex-partner married in Burundi and also bought some land there before returning to Australia.

44. The Tribunal is satisfied the applicant and his mother gave an honest and plausible account of what they fear may happen if he returns to Burundi and the reasons why this will occur.  The Tribunal did not form any significant concerns in relation to the reliability of their evidence in respect of this claim.  For this reason, and having carefully considered the circumstances, the Tribunal accepts the following:

    a.The applicant’s ex-partner is a Burundian national.

    b.The applicant has four children with his ex-partner, one of which he was accused and convicted of sexually assaulting.

    c.The applicant’s ex-partner has family living in Bujumbura and she recently returned there to get married and buy land.

    d.The applicant’s ex-partner likely informed her family in Burundi about the applicant’s behaviour and criminal conviction.

    e.The applicant’s ex-partner’s family would be motivated to exact revenge on him for the crimes he is accused of.

1. The Tribunal considered the likelihood of the applicant’s ex-partner’s family knowing he has returned to Burundi and being able to identify him.  The Tribunal is satisfied that if the applicant is returned to Burundi he will enter the country via the international airport in Bujumbura where his ex-partner’s family are resident.  While this alone would not necessarily mean the family would be aware of his presence the Tribunal is satisfied that his ex-partner in [City 1] will learn he has been returned and will share this information with her family.  Based on the available evidence, the Tribunal accepts that news about individuals in the Burundian community in [City 1] travels quickly through the small, close-knit community.   The Tribunal notes that the applicant’s mother, who has not spoken directly to her son’s ex-partner in several years, claimed to know the very day that she departed Australia for Burundi and about her movements and actions while she was there.  The Tribunal is satisfied that news of the applicant’s deportation would quickly make its way to his ex-partner and that she would inform her family in Bujumbura of this fact.   The applicant claims her family have seen photographs of him and could identify him and the Tribunal finds this plausible given she and the applicant have had four children together.  The Tribunal also notes that a member of her family is in the armed forces and the Tribunal considers this heightens the risk of the applicant being located by the family on return to Burundi.  The Tribunal is satisfied that if the applicant is returned to Burundi it is likely, despite the risk, that he would at least initially remain in the capital, Bujumbura and that there is a real risk that his ex-partners family will locate him there.  The Tribunal is satisfied that the applicant’s ex-partner’s family will be motivated to harm him for reason of his criminal convictions which include an assault on a close family member.  

2. It is not claimed and nor does the Tribunal consider that the harm the applicant will be subjected to by his ex-partners family would be for reason of either his race, religion, nationality, membership of a particular social group or political opinion.  Therefore, the Tribunal has considered whether the applicant is owed complementary protection for this reason.

3. The Tribunal is satisfied that the applicant’s ex-partner’s family will intentionally seek to exact mob revenge on the applicant for the reasons claimed and that such treatment could result in arbitrary loss of life or cruel and inhumane treatment and/or torture.  The Tribunal is satisfied that such treatment amounts to significant harm as defined in s.36(2A) of the Act.

4. The Tribunal has considered whether the applicant could obtain from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm.

5. According to the US Department of State 2019 Country Report on Human Rights Practices in Burundi, the National Police of Burundi, which is under the Ministry of Public Security’s authority, is responsible for law enforcement and maintenance of order. The armed forces, which are under the Ministry of Defense’s authority, are responsible for external security but also have some domestic security responsibilities. The Imbonerakure, the youth wing of the ruling Defense of Democracy-Forces for the Defense of Democracy (CNDD-FDD) party, has no official arrest authority but some were involved in or responsible for numerous detentions and abductions. They routinely assumed the role of state security agents and as such detained and turned over individuals to members of the official security services, in some cases after harassing or physically abusing them. Civilian authorities at times did not maintain control over the security forces.  There were numerous reports that the government or its agents, including the police and elements of the Imbonerakure, committed arbitrary or unlawful killings during the reporting period.

6. The report goes on to state that the September Report of the UN Commission of Inquiry (COI), whose members were denied access to the country by the government but who conducted interviews with more than 3,400 witnesses living in exile, reported that summary executions and arbitrary killings continued but were increasingly difficult to document because, despite bodies regularly being found in public places, often bearing signs of violent death, no information was provided by authorities concerning investigation into the causes or circumstances of the deaths. In addition, numerous disappearances were reported, and it was increasingly difficult to determine how many of these were cases of enforced disappearance or killings. The COI report concluded that “summary executions have been committed mainly by members of the National Intelligence Service (SNR) and by Imbonerakure acting alone. In certain cases, the bodies are found on the public highway or in watercourses, but sometimes the perpetrators take pains to hide them.” Police were also implicated in unlawful killings. The COI further reported that, “Acting in place of the authorities, Imbonerakure have killed persons accused of ordinary crimes, including theft and witchcraft, thus arrogating to themselves the right to dispense justice.” Victims were generally perceived as opponents of the government or the ruling party or, first and foremost, members of the new political opposition party, the National Congress for Freedom (CNL), registered in February. Burundian nationals who returned to the country after having sought refuge abroad were also targeted, as were young men following travel abroad, who were accused of belonging to or supporting armed opposition groups.

7. The above reporting indicates that the police and other state authorities in Burundi are themselves implicated in cases of disappearance and killings, torture and other forms of ill-treatment amounting to human rights violations.  While many of the violations have a political dimension, the Tribunal notes the UN Human Rights Council references to young men who have sought refuge abroad being targeted by the authorities on return.  Given the reportedly widespread impunity which the police and other arms of the security forces reportedly enjoy in Burundi, the Tribunal is not satisfied that the applicant, who has an additional profile of being a young male returnee from abroad,  could avail himself of state protection in the event that he is targeted by members of his ex-partner’s family particularly given the motivation behind the intent to harm.

8. The Tribunal has also considered whether the applicant could relocate to an area of the country where there would not be a real risk that he will suffer significant harm.  Based on the available evidence the applicant has not lived in Burundi apart from briefly as a child between 1999 and 2002.  He has no known family remaining in Burundi.  According to his mother the applicant’s uncle who was recently repatriated to Burundi from Tanzania was killed and his mother believes that the applicant’s half brother who was living along the Burundi/Tanzania border has now returned to the Tanzanian side of the border where he is living as a refugee.  In any event, the Tribunal notes the applicant has never met and has never even communicated with any of his half-siblings in Africa.  He also has no other substantial or emotional ties in Burundi.  While he was educated in Australia it appears he has gained little or no work experience.  In Burundi, the majority of the population are subsistence farmers and the applicant has no farming experience and accessing land is reportedly very difficult and potentially dangerous for returnees.  Food insecurity is reportedly very high and unemployment outside of the agricultural sector is also high[1]. 

   [1] The World Bank in Burundi, The World Bank, 20 November 2019

9. The Tribunal considers that if there was any possibility that the applicant could establish a life in Burundi it would likely be in the capital Bujumbura where opportunities for him to find work, food and shelter would arguably be greater. The Tribunal considers the applicant would be returning to an unfamiliar and uncertain environment and without any emotional or other support it would be extremely difficult for him to make his way in another area of the country.  In view of the circumstances, the Tribunal considers it would be potentially unsafe and unreasonable to expect him to relocate away from the capital city in order to avoid harm from his ex-partner’s family in Bujumbura.

10. In view of these findings, the Tribunal has concluded that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Burundi there is a real risk that he will suffer significant harm. Accordingly, the Tribunal finds that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    Does the applicant have the right to enter and reside in a third country? 

11. The Tribunal notes that s.36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. 

12. Burundi is a member of the East African Community (EAC), a regional organisation of partner states including Rwanda, Burundi, Kenya, Tanzania, Uganda a South Sudan.  The Protocol sets out the provisions for entry and freedom of movement in the EAC.

13. Article 7 (1) of the Protocol provides that Partner States will guarantee the ‘free movement of persons who are citizens of the other Partner States, within their territories without a visa’ while article 7 (5) indicates that ‘the free movement of persons shall be subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health’.  Article 7 (8) of the Protocol provides that the ‘movement of refugees within the community shall be governed by the relevant international conventions’.  The Regulations permit five categories of people, visitors, people seeking medical treatment, persons in transit, students and people entering for other lawful purposes but not work.  EAC citizens seeking to work must apply to do so.  A person applying for this permit must have a valid work and residence permit before they will be permitted to work.

14. Despite the EAC working to progress the Protocol, various reports suggest that overall implementation has been happening at a slow pace.  For instance, an article in June 2014 by Andrew Luzze, Executive Director of East African Business Council stated that the procedures for nationals of EAC states to acquire work permits are ‘lengthy and often frustrating’; each state has different policies and procedures in place and national laws are not aligned with the Common Market Protocol.[2] The Daily Monitor, a Ugandan news site, similarly reported on the difficulties of application requirements and that in Kenya national legislation was used to deter cross-border movement.[3]  Furthermore, a report dated 4 July 2020 states that Burundi and South Sudan were reported to be at risk of being expelled from the EAC due to their respective failures to pay requisite annual remittances to the EAC.[4]  A further report published several days later suggests that the EAC was considering their suspension from the EAC.[5]

    [2] The Star, EAC States Need To Harmonization Of Their Citizens' Work Permit’, 21 June 2014, The Daily Monitor, AC work permit disparities hurt integration, 9 October 2012, ‘South Sudan, Burundi face expulsion from regional bloc for defaulting annual remittances’, China Global Television Network, 4 July 2020

    [5] ‘Clarification of issues reported in the East African Newspaper – 4-10 July 2020 Edition, East African Community, 7 July 2020

Movement between countries is also currently affected by the COVID-19 pandemic due to border closures.  Some countries have closed their border entirely and it is difficult to predict when this will change.[6]

[6] Amnesty International, East Africa: People seeking safety are trapped at borders due to COVID-19 measures, 22 June 2020

During the hearing the applicant’s representative submitted that the applicant has a history of criminal offences in Australia.  He submitted that a history of criminal convictions can impact freedom of movement between countries of cooperation. 

Taking all these matters into consideration, the Tribunal is not satisfied that the applicant has a right to enter and reside in a third country and finds that s.36(3) does not apply.

In view of this finding, the Tribunal has not found it necessary to consider the other claims raised by the applicant in his written and oral submissions.

CONCLUSION

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

The Tribunal notes there are some potentially relevant public interest questions in regard to this matter, but they are not matters for the Tribunal to decide as they are subject to the discretion of the Minister.

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.

Tania Flood
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.

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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.

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36     Protection visas – criteria provided for by this Act

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(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.

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