2212166 (Refugee)
[2023] AATA 678
•3 January 2023
2212166 (Refugee) [2023] AATA 678 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Jahangir Mahmood
CASE NUMBER: 2212166
COUNTRY OF REFERENCE: Burundi
MEMBER:David James
DATE:3 January 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 03 January 2023 at 10:01am
CATCHWORDS
REFUGEE – protection visa – Burundi – mixed Hutu-Tutsi ethnicity – 1993 Burundi civil war – fear of harm from people who filled his family – imputed political opinion – anti-government – particular social group – civil war returnee – rich westerner – Australian criminal conviction and imprisonment – psychological harm – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A, 424A
Migration Regulations 1994 (Cth), Schedule 2CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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 17 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Burundi, applied for the visa on 25 May 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Burundi, that there was a real risk the applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 19 August 2022. The applicant did not provide a copy of the delegate’s decision with the application for review.
The applicant appeared before the Tribunal on 21 November 2022 to give evidence and present arguments via video link from the Christmas Island detention centre. The Tribunal also received oral evidence from [Mr A], the applicant’s brother. The Tribunal hearing was conducted with the assistance of an interpreter in the Kinyarwanda and English languages.
The applicant was represented in relation to the review.
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 (Cth) (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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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.
MIGRATION HISTORY – BACKGROUND
The applicant’s migration history as relevant is as follows:
·24/05/2005 Granted Protection – Refugee (Class XB, Subclass 200) visa.
·[date]/08/2005 Arrived in Australia.
·06/09/2018 Refugee (Class XB, Subclass 200) visa cancelled under s 501(3A). The applicant became an unlawful non-citizen.
·24/09/2019 Applicant applied for revocation of cancellation.
·25/07/2019 Applicant detained under s 189(1) upon release from criminal custody.
·30/11/2021 Cancellation of refugee (Class XB, Subclass 200) visa revocation finalised - ‘Not Revoked’.
·17/01/2022 Applicant signed request for removal from Australia.
·23/05/2022 Applicant withdrew consent for voluntary removal.
·25/05/2022 Application applied for Protection (Class XA, Subclass 866) visa.
·20/06/2022 Protection visa interview.
·11/07/2022 Judicial Review of Minister’s decision pursuant to s 501 commenced.
CONSIDERATION OF Claims and evidence
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the 5 reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Burundi he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Burundi, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant in the visa application stated that he fled Burundi on foot to Tanzania in 1993 as a child when he was about [age] years old. He has a vague recollection of people coming to his home with machetes and knives and recalls hearing screaming and thinking that his parents were being killed. He joined other people who were running away and finished up in Tanzania. At first a stranger took him in and exploited him as a child by putting him to work washing for the entire family, cleaning the house and working the land to grow food. He states he was also physically abused and threatened. He was then sent to a refugee camp and stayed in the camp until he was resettled to Australia in 2005. He reconnected with his older brother in the camp in Tanzania but has never seen his parents or younger brother since he fled Burundi. He states it was a very tough life in the camp and he remembers there was no food and the government of Tanzania kept trying to send him and other refugees back to Burundi. His claims for protection are that:
·It is not safe in Burundi, and he will not survive.
·He does not know anyone in Burundi who could offer him support and he is not in contact with anyone in that country. He has not been in that country since he was very young about 30 years ago.
·When he fled there was so much killing, and he was scared that the people who he believed attacked his family would kill him to.
·In Burundi there is ongoing chaos and killing and he is scared to return as going back would take him back to what happened when he was young, and this would cause him more trauma and he would not get any help for that trauma in Burundi.
·If he was sent back to Burundi, he would not have anywhere to live and he does not know anything of the country, he would be going back with no money and with no one to turn to and with no job. He does not know what he would do or how he would survive there.
·His representative has shown him reports that indicate Burundi is still subject to violence and killings. He understands that there is a youth militia called the ‘Imbonakure’ who terrorise and kill the people for political and other reasons and that they are connected to the government of Burundi. He also understands that they are targeting people who will not support them and also targeting returning refugees. He does not know anything about the poor politics of Burundi and would not support any group like this group who are killing the people. He would be a returning refugee and therefore it seems like he would be at risk from these people.
·Not knowing anyone in Burundi who he could trust would make it more dangerous for him. Returning after such a long time away from the country, people would find out that he had been in Australia and his representative explained to him that there is a lot of crime and kidnapping in Burundi as it is a poor country. His representative also told him that people who are thought to be foreigners or who are seen to have money are more likely to be targeted by these criminal groups and this is another danger to him.
·He also understands that when you are sick in Burundi you just die because they do not have good health systems and with coronavirus being a problem this is another reason that he fears for his life if he was forced to return.
Department interview
The applicant was interviewed by the Department on 20 June 2022.
Post interview submission
On 24 June 2022 the applicant’s then representatives Refugee Legal provided a submission outlining the applicant’s personal and migration history and summarised his claims as being:
In summary, and as detailed in his application [the applicant] is at risk of persecution in the form of death, kidnapping, torture, physical assault, psychological harm, imprisonment, and severe discrimination amounting to persecution including a denial of access to basic services threatening his capacity to subsist, at the hands of the Burundi authorities, armed militias including the youth wing of the ruling government the Imbonerakure, and non-state actors, for the following, non-exhaustive convention reasons either cumulatively or separately:
His membership of particular social groups, namely:
i.Male refugee returnees to Burundi
ii.Male refugee returnees suspected of support of opposition groups
iii.Refugee returnees who have not lived in Burundi since childhood
iv.Refugee returnees who have no effect of family support in Burundi and who are homeless and destitute
v.Refugee returnees from the west with perceived wealth
vi.returnees deported for criminal convictions
vii.Burundians and returnees who have suffered psychological trauma
viii.any combination of the above groups identified.
Delegate’s decision
The delegate’s decision of 17 August 2022 to refuse the protection visas was made on the information before the delegate. The delegate found that the applicant’s claims about fearing a generalised and indiscriminate violence in Burundi did not constitute systematic and discriminatory treatment specifically aimed at the applicant, or people with the same characteristics as the applicant. The delegate found that while there are high levels of violence in Burundi the delegate was not satisfied that the applicant’s fear of falling victim to random acts constituted harm towards the applicant in a deliberate, premeditated or targeted way. Further the applicant’s concerns that he is unfamiliar with Burundi because he has no memory of living there and has no established support networks was not accepted by the delegate given that country information demonstrates that being a returnee to Burundi with no support networks is not a reason that people are systematically and discriminatorily harmed in Burundi. The delegate was not satisfied that there was a real chance that the applicant would suffer harm from the Burundi authorities or any other party on account of his imputed political opinions, perceptions that he is wealthy as a returnee from a western country or on any other account. The delegate was not satisfied that the applicant would suffer discrimination, will be excluded from accessing those support services that exist within Burundi such that it would affect his capacity to subsist. The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed to Burundi that there was a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Application for review
As raised above the applicant lodged his application for review on 19 August 2022. As that application did not include the Department’s protection visa assessment record (Decision Record) the Tribunal forwarded a request to the applicant’s then representative on 22 August 2022 for the disclosure of the Decision Record. The Tribunal did not receive any response in relation to this request. On 6 October 2022 the applicant’s current representative was appointed and on 7 October 2022 the applicant’s new representative responded to the Tribunal’s request for the Decision Record stating that they could not comply with the Tribunal’s request and provided reasons for that response. On 12 October 2022 the Tribunal forwarded an invitation to comment, pursuant to s 424A of the Act. On 19 October 2022 the applicant’s representatives requested an extension of time of 7 days until 28 October 2022 to respond to the s 424A letter. This request was granted by the Tribunal, however the Tribunal’s extension was until the close of business on 21 October 2022 and not as requested on 28 October 2022.
Response to s 424A letter
On 21 October 2022 the applicant’s representatives replied to the Tribunal’s s 424A letter in which they provided the applicant’s statement in response which provided his personal background identifying his mixed ethnicity of Hutu and Tutsi, his recollection of his escape from Burundi as a child which is consistent with his application and his reasons as to why Burundi is not a safe place for him. Such reasons were identified as:
·Him being of mixed ethnicity;
·Having fled Burundi during the civil war;
·Having spent a lot of time in a developed country;
·Him being perceived as having a significant amount of money;
·Him not knowing how to survive in Burundi;
·Being perceived as a threat to the authorities in Burundi;
·Him having been convicted of criminal offences in Australia; and
·Him needing specialist mental health care.
Additionally, the applicant in his response identified that his children are an integral part of his life and he provided information as to his [number] children who live in Adelaide and his concerns as to being separated from them and possibly being forced to leave his children behind if he were to return to Burundi. In addressing the delegate’s Decision Record, the subject of the
s 424A notice, the applicant outlined the basis of his fears in accordance with his application. As to the delegate’s findings that his claim as to fearing harm from the people responsible for killing his family in 1996 was purely speculative given the applicant had no specific knowledge of the events leading to his escape to Tanzania, the applicant explained that he did have some specific knowledge of those events and provided later in the response his recollection of those matters which was in accordance with his claims.As noted above, the applicant did not provide a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes in the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
Invitation to attend hearing
On 28 October 2022 the Tribunal invited the applicant to attend a review hearing via video link at the Brisbane Registry on 21 November 2022. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 8 November 2022 the applicant through their representative provided a hearing response to the Tribunal indicating that he would take part in the hearing and that his brother [Mr A] would also give oral evidence at the hearing. Attached to the hearing response was a statutory declaration under the hand of his brother in which his brother declared that their parents (the applicant’s and his brother’s) were from different ethnic tribes. Their mother was from the Tutsi tribe and their father from the Hutu tribe and that they both died during the Burundi civil war of 1993. His brother declares that the applicant is of mixed ethnic descent and this has always been an issue in Burundi. His brother states that if the applicant was sent back to Burundi it is highly likely that he would be killed because of his mixed ethnicity. He further states that the people of Burundi and the politicians there are very suspicious of people that have left and then later return to the country. It is also possible, his brother states, that the local people would presume that the applicant has accumulated a lot of money and that they would most likely kill him for his possessions and supposedly money. His brother further states that there is no real rule of law in Burundi and it is unsafe for most people but would be more unsafe for the applicant for the reasons that he has stated. His brother further states that the people who had killed their parents and family are possibly still in Burundi and if the applicant returned he could be discovered by those people and then killed by them. His brother also states that the applicant had left when he was 10 years of age and doesn’t know the customs of that country and would simply not know how to live there and fit in with the local community. His brother further states that the reason for his support of the applicant is because the applicant is his only surviving family member as their entire family was killed during the civil war and he would not like to lose his brother as that would upset him a great deal.
Pre-hearing submissions to the Tribunal – 18 November 2022
In the applicant’s representative’s submission to the Tribunal of 18 November 2022 his representative referred to the applicant’s reply to the Tribunal’s s 424A letter of 21 October 2022 as having outlined the applicant’s claims. This submission additionally submitted a new claim, being the applicant’s mixed Hutu-Tutsi ethnicity. The submission advances that the applicant has a well-founded fear of persecution because he fears suffering serious harm for reasons of:
·ethnicity (or race);
·membership of a particular social group (being those particular social groups that have already been identified in the applicant statements and in submissions previously filed);
·imputed political opinion (the applicant’s ethnicity, as one amongst his other previously identified personal characteristics, puts him at risk of having political opinions appeared imputed to him and these personal characteristics are not such as can be modified to avoid a real chance of persecution).
The submission provides that in addition to the applicant’s claims as earlier outlined that the Tribunal ought to find that the applicant is of mixed ethnicity and that he has a well-founded fear of persecution were he to be returned to Burundi. In the alternative it is submitted that the applicant’s personal circumstances as described in the material including these submissions support a finding that there is a sufficiently high risk of the applicant suffering significant harm in Burundi and that he fulfils the criterion for a protection visa as provided for in s 36(2)(aa) of the Act. That is, that as a necessary and foreseeable consequence of the applicant being removed from Australia to Burundi there is a real risk that the applicant will suffer significant harm.
The applicant’s representatives also on 18 November 2022 provided the Tribunal with 2 documents which had been footnoted in their submission of 18 November 2022. Those documents being: Office of the United Nations High Commissioner for Human Rights, Report of the Commission of Inquiry on Human Rights in Burundi, UN Doc A/HRC/487/68 (12 August 2021, release date 16 September 2021) and the Implementation of the Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region – Report of the Secretary General, Un Doc s/2022/276 (30 March 2022).
Country information
In the June 2019 International crisis group report that the Burundi government has imposed restrictions on political expression and provided that:
A May 2018 referendum, held in a climate of fear, approve constitutional amendments that consolidate the government’s rule and open the way for the dismantling of ethnic quotas in parliament, government and public bodies (including the army). Those quotas were intended to protect the Tutsi minority and were a key provision of the 2000 Arusha Agreement that brought an end to Burundi’s protracted civil war. Shortly afterward, International NGO’s came under strict attack; the government suspended their operations in October 2018, demanding that they fulfil stricter criteria. The government also placed restrictions on key foreign media outlets: in March 2019 it permanently revoked the BBC’s operating license and maintain its existing suspension of voice of America. These developments augur ill for the country stability in the medium term[1].
The report also identifies that the Government of Burundi has been repressing all internal dissent and provides that:
Instead of moderating its behaviour, the government has consolidated power and begun to dismantle protections for the Tutsi minority provided for by the 2000 Arusha peace agreement that ended Burundi’s long civil war.
As a result, and despite the EAC’s efforts, as well as those of other international actors, Burundi remains in crisis: its economy is on life support, more than 350,000 refugees reside in neighbouring states, most of the government’s political opponents are in exile and those who stayed are subject to severe repression. If elections take place under the circumstances, many Burundi and is will likely reject them, potentially resulting in street protests that could turn violent and increase support for armed opposition groups has happened in 2015.[2]
[1] ‘Running Out of Options in Burundi’, International Crisis Group (ICG), 20 June 2019, p2.
[2] Ibid at ppi-ii.
The Human Rights Watch Annual Report of 2019 when discussing political violence in the lead up to, and after the disputed referendum held in May 2018 which changed the Constitution and allowed President Pierre Nkurunziza to potentially remain in power past his current term, stated that:
In the months leading up to the referendum, police, intelligence services, and members of the Imbonerakure killed, raped, abducted, beat, and intimidated suspected opponents of the ruling party, the National Council for the Defence of Democracy-Forces for the Defence of Democracy (Conseil national pour la defense de la democratie-Forces de defense de la democratie, CNDD-FDD). Beatings and intimidation of suspected opponents continued after the vote.
Political violence tied to the May referendum claimed at least 15 lives, according to Human Rights Watch research, but the actual number killed is likely much higher. Dozens of dead bodies were found across the country in suspicious circumstances. Many of them were never identified and the circumstances around the deaths never confirmed.
Numerous political opponents were arrested, intimidated, or held incommunicado in unknown locations, including members of the National Liberation Forces (Forces nationales de liberation, FNL), the Movement for Solidarity and Democracy (Mouvement pour la solidarite et la democratie, MSD), and other opposition parties. Some were accused of having told their members to vote against the referendum.[3]
The Human Rights Watch Annual Report referring to a UN Commission of Inquiry, ‘confirmed new cases in 2018 summary execution, enforced disappearance, arbitrary arrest and detention, sexual violence, torture and other cruel, inhumane or degrading treatment’ noting that:
The commission concluded that the perpetrators of these crimes - the National Intelligence Services, the police, and the Imbonerakure - operate in “ a climate of impunity perpetrated by the lack of an independent judiciary”. The commission for the first time implicated Nkurunziza directly in “repeated hate speech and calls for violence”.[4]
[3] ‘Human Rights Watch World Report 2019’, Human Rights Watch (HRW), 17 January 2019, p 102.
[4] Ibid at p 101.
The Immigration and Refugee Board of Canada has noted that the Imbonerakure (the ruling party youth league also described in some sources as a militia) has targeted many groups and arrested and attacked presumed political opponents including members of the opposition, journalists, human rights defenders and their families, people attending funerals of those who have been killed and inhabitants of neighbourhoods perceived to be supportive of the opposition.[5]
[5] ‘Burundi: The Imbonerakure, including their activities and their ties to the authorities, specifically with the Bujumbura police; whether they are able to find a person in all parts of the country and abroad…’, Canadian IRB: Immigration and Refugee Board of Canada, 22 February 2018.
The Council on Foreign Relations noted in February 2019 that since gaining independence in 1962, Burundi has experienced multiple episodes of mass violence as a result of tensions between the Tutsis and the other main ethnic group, the Hutus, including massacres in 1972, 1988 and during the early 1990s which led to the outbreak of the 12-year civil war in 1993. The report notes:
Burundi’s past conflicts have stemmed from divisions between social groups, primarily along ethnic lines between Hutus and Tutsis, but intertwined with social and institutional control, economic opportunity, and a history of discriminatory policies. Burundi’s history mirrors Rwanda’s history. The two countries share the same ethnic groups and have experienced mass violence, but whereas in Rwanda are a repressive Tutsi government committed mass violence against Hutus. In Burundi, this violence led to civil war.[6]
[6] ‘Political Crisis in Burundi’, Council on Foreign Relations, 06 February 2019.
In May 2022 the UNHCR Burundi Factsheet as to the repatriation of returnees and their integration provided that the UNHCR had facilitated the return of over 65,000 Burundi and refugees from Tanzania, Rwanda, the Democratic Republic of Congo (DRC), Uganda and other countries in 2021.[7] The Factsheet in part provided that:
UNHCR facilitates the safe and dignified repatriation of Burundi and refugees who make a free and informed decision to return home. Since September 2017, UNHCR and partners facilitated the return of over 192,000 Burundian and refugees from Tanzania, Rwanda, the Democratic Republic of Congo, Kenya Uganda and other countries.
Upon arriving to the transit centres in Burundi, returnees are tested for Covid-19, provided with a cash grant ($150 for adults and $75 for minors), a core relief item package, counselling, as well as a three-month food ration provided by WFP. UNHCR also undertakes community-based protection monitoring for returnees to assess their needs and promote returnees’ access to basic services, the results of which are available on UNHCR’s protection monitoring dashboard.
Through the Joint Refugee Return and Reintegration plan (JRRRP) co-led by the government of Burundi, UNHCR, UNDP and partners, UNHCR supports return and reintegration activities to enable durable solutions for returnees, and mitigate the impact on communities in return areas. However, reintegration efforts are curtailed by chronic underfunding, with the 2021 JRRRP only 21% funded, hindering efforts for a comprehensive response. The 2022 JRRRP appeals for $107.3 million to address the critical needs of 300,000 returnees and 260,000 local community members.[8]
[7] ‘Burundi Factsheet – May 2022’, UNHCR, May 2022, p 1.
[8] Ibid at p 3.
As to the issue of mixed ethnicity the Canadian Immigration and Refugee Board reports that Burundi is a patriarchal society, the father’s ethnicity defines ethnic membership, therefore the child of a Hutu father and Tutsi mother is Hutu; the child of a Tutsi father and Hutu mother is Tutsi, there are no mixed categories.[9]
[9] ‘Burundi: ‘Treatment of people born of mixed Hutu-Tutsi couples by members of these two groups: state protection (2016-January 2018)’, Canadian IRB: Immigration and Refugee Board of Canada, 7 February 2018.
In relation to the current government’s treatment of the Tutsi ethnic group the German think tank Bertelsmann Stiftung’s 2018 Burundi country report noted that:
Fortunately, the population in the country has so far resisted the inflammatory ethnic rhetoric developed by the government. However, targeted killings and harassment by Imbronerakure militia, a generalized fear amongst Tutsi communities in rural Burundi, and a growing mistrust of Tutsi elements within the armed forces are all dangerous developments in a country that has experienced decades of ethnically mobilized violence.[10]
[10] ‘Country Report – Burundi’; Bertelsmann Stiftung, 23 March 2018, p 41.
In an article by the Australian Institute of International Affairs (AIIA) in January 2021 the current conditions in Burundi were described as having ‘strong parallels’ with those in pre-genocide Rwanda (which saw genocidal killings of Tutsis by Hutus in 1994). The article notes that as of December 2020, the United Nations Security Council (UNSC) ended its reporting in Burundi at the behest of the newly elected President, Evariste Ndayishimiye. The article makes several comparisons between the current situation in Burundi and that in pre-genocide Rwanda, noting the similar demographic ration (dominated by Hutus), the ongoing ‘proliferation of hate speech’ with an ethnic dimension, and the power and influence of the militia groups – in the case of Burundi, the government-aligned youth militia, the Imbonerakure.[11]
[11] ‘Burundi vs Rwanda: Potential for a Future Genocide’, Australian Institute of International Affairs, 24 January 2021.
In an article by the ReliefWeb of the United Nations Human Rights Office the Imbonerakure are described as:
The word Imbonerakure means “those who see far” in the Kurundi language.
The group arose in 2010 out of disarmed fighters from the ruling party’s previous incarnation as a rebel group. The CNDD (the political wing) and the FDD (the military wing) rebels emerged in the mid 1990s as the Hutu majority rose up against a Burundian government and army dominated by the Tutsi minority.[12]
[12] ‘Who are the Imbonerakure and is Burundi unravelling?’,Burundi | ReliefWeb, accessed 20 November 2022.
The Tribunal notes as to the issue of returnees who have committed crimes abroad that Burundi’s Penal Code prohibits re-prosecution of crimes committed abroad where the person has been convicted and completed their sentence.[13] Burundi is also a party to the international Covenant on Civil and Political Rights (ICCPR) which prohibits double jeopardy.[14] In December 2011 Canada forcibly returned Jacob Niyongabo who had lived in Canada for more than 16 years after he and his family had fled Burundi due to ethnic violence. He was deported to Burundi after being convicted of several misdemeanours. According to the Canadian refugee rights organisation, Solidarity Without Borders, Mr Niyongabo arrived safely in Burundi and officials did detain him initially whilst they verified his travel documents, but he was soon released.
[13] ‘Burundi – Practice Relating to Rule 100. Fair Trial Guarantees’, International Committee of the Red Cross.
[14] ‘International Covenant on Civil and Political Rights’, United Nations Treaty Collection, United Nations, 28 July 2015, p 9; ‘Ratification status of Burundi’, United Nations Rights office of the High Commissioner (OHCHR), 14 February 2020.
In the United Nations Report of the Commission of Inquiry on Burundi, which was footnoted in the applicant’s pre-hearing submission and provided to the Tribunal it is reported under the heading of ‘Opposition political parties’ that:
While political violence has generally subsided, this is not necessarily a sign of greater political tolerance. No structural measures have been taken to ensure that the perpetrators of violence during the elections are punished or to prevent such actions from recurring, including during the next elections. Following the elections, the Imbonerakure were reportedly instructed to stop using violence against opponents, but they can still be called up at any time by the authorities and CNDD-FDD. In fact, since the armed attacks in spring of 2021, CNL members are, in some places, once again being closely watched by the Imbonerakure. As noted previously, following these attacks, some CNL members were accused of collaborating with the rebels or possessing weapons, but it has not been possible to ascertain whether this was due to their political affiliation or on the basis of objective evidence.[15]
Under the heading of ‘Returnees’ the report provides at [42] that:
Some recent returnees have been mistreated, including by members of the Imbonerakure. Certain returnees who have been politically active in the past have been accused of collaborating with armed groups, and some of them have been arbitrarily arrested and detained, then tortured in detention. Sometimes, the fear of being sought by the authorities, arrested or killed has led refugees - including some who had come by their own means to explore the possibility of returning to Burundi under the tripartite program - to return to their host country.[16]
[15] ‘Report of the Commission of Inquiry on Human Rights in Burundi’, Office of the United Nations High Commissioner for Human Rights, UN Doc A/HRC/48/68 (12 August 2021, release date 16 September 2021) at[16] Ibid at p 9.
Review hearing – 27 October 2022
The Tribunal hearing was conducted at the Brisbane Registry in the English language with the applicant appearing in person and his solicitor via video link. The Tribunal explained to the applicant that the Tribunal would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal, confirmed that his solicitor had explained the refugee and complementary protection criterion to him, however he requested the Tribunal further explain the criterion to him. The Tribunal then provided the applicant with an explanation and description of the relevant statutory framework and concepts as to the refugee and complementary protection criterion. When asked by the Tribunal whether he understood the refugee and complementary protection criteria, the applicant indicated he did understand the criterion as explained.
The Tribunal initially raised the applicant’s claim as to his mixed ethnicity which had only been raised for the first time in the applicant’s pre-hearing submission of 18 November 2022 with the applicant and his solicitor. The applicant and his solicitor agreed that this claim was a new claim but explained that the applicant had only become aware of this issue, his mixed ethnicity when recently discussing the matter with his brother [Mr A]. The Tribunal notes that this issue was identified in his brother’s statutory declaration and accepts that the explanation provided to the Tribunal as to why this claim was only raised on 18 November 2022 is reasonable and as such the Tribunal does not draw an inference unfavourable to the credibility of this claim in accordance with the provisions of s 423A of the Act.
The applicant’s evidence as relevant (in summary) was that:
·He arrived in Australia on 8 August 2005 after being resettled in Australia as a refugee with the assistance of the United Nations. He had been living in a refugee camp in Tanzania after fleeing Burundi in 1993. He remained in the refugee camp until 2005 when he came to Australia. He was [age] years of age when he arrived in Australia.
·He had fled Burundi on foot when he was about [age] years after there was an attack on his family’s home, by people with machetes. He believes his parents were killed and he joined with other people who were also running away from the attack. He ended up in a Tanzanian refugee camp where he reconnected with his brother. His brother has also resettled in Australia and is presently [age] years of age and married with [number] children and working as a [Occupation 1].
·After arriving in Australia, he attended an English course for one-and-a-½ years and then from 2007 to 2011 he worked at a [workplace] in Adelaide; from 2011 until 2018 he worked at a [different workplace] in Adelaide.
·In 2018 he was charged with a sexual offence and was later convicted at trial and imprisoned. In June 2019 he was released from prison on parole and then taken into immigration detention where he is presently held at the Christmas Island detention centre. He explained that he had met his partner in Tanzania at the refugee camp and later in Australia they commenced living together in 2007 but were later separated in 2014. He has [number] children from this relationship, [number] daughters and a son ranging in age from [age] years to [age] years. As to contact with his children he explained that after his 2014 separation and until his imprisonment in 2018 he had had weekly supervised contact with his children at a contact centre. However, after being jailed, he has not had any contact with his children until June 2021, when his wife contacted him on a video call. That call was the last time he had had any contact with his children. He was unable to explain why his earlier contact with his children had been through a contact centre and was subject to supervision but to say that there had been no allegations of domestic violence and it was the case that his wife would not let him see the children anywhere else.
·When asked as to the circumstances surrounding his conviction after trial of unlawful sexual intercourse with a person under the age of 17 years, he explained that he had not committed the offence and had been wrongly convicted.
·When asked to explain his fears (claims) as to returning to Burundi he stated that:
oHe fears returning to Burundi as they will kill him. When asked why, he replied: first of all, I escaped as people were killing my family and the people who killed my family are still alive and they are still in the same area, Cankuzo. In response to the Tribunal’s query as to how these persons would identify him given the passage of time, he replied that first of all everyone who returns to Burundi is known to be coming from overseas, at the airport the authorities will identify you as coming from overseas and there have been instances of arrivals being killed, someone who was a mixed race person and has no support like himself could be kidnapped. As he is of mixed ethnicity he is at risk. He explained that he did not know who the people were who had killed his family but rather you cannot tell who is doing the killing. He explained his father was Hutu and his mother was Tutsi and during the civil war everyone was killing everyone.
oHe said his other concern was that when you come from overseas the authorities think you are from the exiled opposition groups. That is why they (government authorities and/or supporters) kidnap you and then kill you because they think you are returning to Burundi to support the opposition and oppose the government.
oHe explained that he was also concerned that people returning are often accused of having killed people and will be considered as having been involved in the civil war. He further explained that if he returns, he will be accused straight away of having been involved in the killings in the civil war, and that will result in him being killed.
oHe also feared being viewed as a rich westerner and explained that as people will think he is rich having come from the west, people will want to take his belongings and either kidnap him or kill him.
oFurther he fears that if he is the subject of official repatriation, it will become known that he is a criminal and has been convicted in Australia and the people in Burundi will suspect that he will commit further crimes in Burundi so they will kill him.
oHe explained that he also feared that if he is killed in Burundi his children will become orphans and as he has lived as an orphan, he does not want his children to live a very poor life in this world. When questioned as to why he could not provide financial support to his children in Australia from Burundi, he explained that he could not as he will be killed as soon as he arrives in Burundi. He also explained that he needed to stay in Australia to look after his children as his wife has psychological problems and the government have presently taken his children away from her and they are now living with their maternal grandmother in Adelaide.
oHe also explained that due to his fears for his safety and his concerns for his children he fears psychological harm. Although he explained that he had not ever been diagnosed or undergone any psychiatric and/or psychological treatment, or counselling, he had recently sought assistance whilst in detention at Christmas Island and they had provided him with sleeping pills to address his fears of returning to Burundi.
·In reply to the Tribunal discussing the country information as outlined above at paragraphs 27 to 37 the applicant replied to the following issues:
oAs to ‘political expression’ and ‘internal dissent’ (see paragraph 27 above) he stated that, he knew there was a shared government between Hutu and Tutsi but that he is not Hutu or Tutsi and as a mixed ethnic person he is considered dangerous as when they share government there is no place for mixed persons.
oIn relation to the Human Rights Watch Annual Report of 2019 (see paragraph 28 above) he agreed that the militia are supporting the government and those groups are very dangerous and as he is not supporting them and is not Hutu, they will kill him. As to the report’s reference to the UN Commission of Inquiry and its reference to the ‘Imbonerakure’. He stated that that group are doing what they want, and he knew or had heard of people being killed by them without any follow up by the authorities.
oIn reply to the Refugee Board of Canada’s discussion of the ‘Imbonerakure’ (see paragraph 29), the applicant’s reply was that the information was correct, and they (‘Imbonerakure’) kill the opposition and Tutsi.
oWhen considering the information from the Council on Foreign Relations (see paragraph 30 above) the applicant agreed that conflict in Burundi was on ethnic grounds between the Hutu and Tutsi and although presently it is the Tutsi that are the minority there is a civil war and that his position of being of mixed ethnicity places him at risk.
oWhen questioned as to why or who told him that mixed ethnic persons faced risk in Burundi the applicant explained that when they (he and his brother) were in the refugee camp in Tanzania there was a section of the camp for the Hutu and another section for the Tutsi and there was also a protection section. As the Hutu wanted to kill them and also the Tutsi wanted to kill them the UNHCR put them into the protection section which was for the mixed people.
oAs to the information from the UNHCR factsheet of May 2022 (see paragraph 31 above) the applicant said that the report was only talking about the Hutu and the Tutsi and all of them don’t like the people who are mixed and they will kill them (mixed ethnic people) before they even enter the country.
oIn relation to the Canadian Immigration and Refugee Board’s statement that Burundi is a patriarchal society and ethnicity is determined by your father’s ethnic origins, the applicant stated that yes that is what is written in the books and that everyone is to be protected but there is no action taken to protect those people (mixed ethnicity). He explained that when they (he and his brother) were in the refugee camp that they could not live in either the Hutu or Tutsi groups and that they had been put in the protection group and everyone from this group never returned home as they were all re-settled.
·In conclusion the applicant told the Tribunal that he would like a second chance to return to the community and wanted to help his children as he had learnt a lot from his experience in jail and that he will behave correctly if he is returned to the Australian community.
The applicant’s solicitor in the final submissions drew the Tribunal’s attention to paragraphs [22], [51] and [78] of the United Nation’s Commission of Inquiry on Burundi report, which was referred to above at paragraph 37 by the Tribunal and referenced in the applicant’s pre-hearing submission of 18 November 2022. The Tribunal was also directed to paragraph [28] of the United Nations Security Council’s report on the Implementation of the Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region which had been referenced in the applicant’s pre-hearing submission and discusses voluntary repatriations to Burundi and the resentment that has been reported by Burundians as to the benefits and assistance returnees receive upon repatriation. The Tribunal has taken these reports into its consideration together with the above country information in coming to its final decision.
Witness [Mr A] (applicant’s brother)
The applicant’s brother [Mr A] appeared by telephone and gave oral evidence, adopting the contents of his statutory declaration as his evidence. [Mr A] was asked to comment on the country information from the Canadian Immigration and Refugee Board as to Burundi being a patriarchal society and that ethnicity was recognised in Burundi by a father’s ethnic membership (see paragraph 32 above). [Mr A] replied to this statement that: Yes, his father was Hutu and his mother Tutsi, and we (he and the applicant) are mixed; and yes, when he was in Burundi he was identified as Hutu because of his father’s ethnicity. However, he explained that when he fled the country and was later living in the refugee camp in Tanzania, he and his brother had firstly been in the Hutu area, but they had to be moved to the protection area because they were suspected of taking information to the Tutsi refugees. He stated that the suspicions of the Hutu as to he and his brother arose because they were of mixed ethnicity. He further explained that he wished to emphasise the issue of ethnicity and explained that he and his brother don’t belong to anyone, and they will kill us of we go to a group of Hutu and the Tutsi will also kill us if we went to them.
In reply to the Tribunal’s suggestion that he would be recognised as Hutu if he were to return to Burundi in accordance with the patriarchal traditions, he explained that he would be unable to find a job and support himself as no one would know him and so no one would employ him as he (and his brother) don’t belong to a group. The Tribunal further posed to the witness that he had on his own evidence before the Tribunal previously been known as Hutu in Burundi. His reply was that there had not been the same problems in the village as there are now. He further explained that after the civil war everyone knew everyone’s ethnicity.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Burundi and provided a Detention ID card and a Burundian Laissez-Passer issued in the applicant’s name and dated [in] 2022. Based on this material the Tribunal finds that the applicant is who he says he is, a national of Burundi. Burundi is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[17] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[18] This is consistent with the established proposition that it is for the applicant to make his or her own case.[19]
[17] Section 5AAA of the Act.
[18] Ibid (with effect from 14 April 2015).
[19] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[20] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[21]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[20] Fox v Percy (2003) 214 CLR 118.
[21] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[22] A similar approach is taken in the Department’s Refugee Law Guidelines[23] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[24] which provides useful guidance for this Tribunal.
[22] SZLVZ v MIAC [2008] FCA 1816 at [25].
[23] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[24] UNHCR, re-issued February 2019 at [203]–[204].
Fear of harm from the people who killed his family
The Tribunal accepts that the applicant has a limited recollection of the events that caused him and his brother to flee Burundi as a result of the attack on his family and others when he was about 10 years of age. In that regard the Tribunal accepts the evidence of the applicant and the information contained in the visa application and his other material presented to the Tribunal as to his subsequent life in the Tanzanian refugee camp and his subsequent resettlement in Australia together with his personal and work history in Australia as presented to the Tribunal.
Given the passage of time and the applicant’s evidence of not having any recent connection to Burundi nor any contact with anyone who had remained in Burundi after the civil war and the killing of his parents the Tribunal accepts that the applicant does not presently have any family and/or any other personal or social support networks in Burundi. Therefore, it does not seem reasonable given these circumstances that any of the persons who had been involved in the killing of his family would be able to now identify the applicant as being from his family who had been so killed. The Tribunal finds that it is implausible that the applicant if he returned to Burundi in the reasonably foreseeable future would be identified and targeted in relation to those events that involved the killing of his parents and the associated violence of the civil war especially given he was a [age]-year-old boy at the time, and that these events occurred more than 25 years ago and that he himself is unable to identify any of the people involved in the violence that resulted in his parents being killed.
The applicant’s fears in this regard are not well-founded.
Imputed political opinion and particular social group of civil war returnee
Equally as to the applicant’s claims relating to being a member of a particular social group being civil war returnees and his fears that he will be viewed as being a member of or supportive of anti-government political groups or opponents of the Burundian CNDD-FDD government and imputed with an anti-government profile that will likely result in him being harmed and/or killed by the government intelligence services, police and/or the government’s youth militia the ‘Imbonerakure’. The Tribunal notes that the applicant and his brother’s evidence did not raise any incidents or examples of them having ever been involved in any political activities in Burundi as children, in the Tanzanian refugee camp or here in Australia. There is no evidence to support the applicant having had or gained an anti-government profile since he fled Burundi more than 25 years ago. Although the country information as outlined above clearly identifies that people with an anti-government profile have been targeted by the Burundi government and their associated militia, given the applicant has not been politically active in any way in Australia in any opposition to the Burundian government nor has he undertaken any real interest or engagement with the affairs of that government whilst in Australia, the Tribunal is not satisfied that the applicant has or would in the reasonably foreseeable future attain an actual and/or imputed anti-government profile arising from his membership of the particular social group of civil war returnees.
Additionally, as to the applicant’s further claim relating to being a returnee that would be perceived as having killed other Burundians during the civil war, The Tribunal notes that at the time of the war and when the applicant fled Burundi he was [age] years of age and therefore it does not seem to be likely or reasonable that he would attain such a profile upon his return to Burundi some 25 years after that civil war given his age, lack of recollection of that violence and the killings of his family and others and his obvious age at the time of the civil war. The applicant’s fears in this regard are not well-founded.
The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future on the basis of his membership of the particular social group of civil war returnees and/or any imputed political opinion arising from his membership of that group. The Tribunal finds that the applicant’s fears as to this claim are not well-founded.
Rich westerner
As to the applicant’s claim of being viewed as a ‘rich westerner’ he provided little detail but to say that people will think he is rich having come from the west and as such, that places him at risk of being kidnapped or killed for his possessions. The applicant in this regard provided no evidence as to how he would be so perceived and targeted given his present personal and financial situation. Although the Tribunal acknowledges the difficult security situation and prevalence of violent offending in Burundi this risk of harm from criminals in Burundi is something that the Burundian community at large face and can be mitigated by the applicant through modification of his behaviour in so far as taking reasonable precautions like other members of the Burundian society in so far as not overtly displaying any attributes of perceived wealth. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for his perceived membership of the particular social group of ‘wealthy westerners’. The Tribunal finds that the applicant’s fears as to this claim are not well-founded.
Australian criminal conviction and imprisonment – double jeopardy
In relation to the applicant’s claim that if he was officially repatriated to Burundi, it will become known to the Burundian authorities and/or the people in the Burundi community that he has been convicted in Australia and that he will then be viewed as a criminal who will commit further offences so they will kill him. The Tribunal has considered this claim and also that of double jeopardy notwithstanding it was not specifically raised by the applicant. In regard to the issue of double jeopardy the Tribunal notes that the country information as outlined above at paragraph 36 provides that Burundi’s penal code prevents re-prosecution of crimes committed abroad. Further as to the applicant’s fears as to being viewed as a member of a particular social group being criminal returnees and being subjected to harm for being an overseas convicted criminal, the country information at paragraph 36 also identifies that Canada forcibly returned Jacob Niyongabo to Burundi after he had lived in Canada for more than 16 years after fleeing Burundi due to ethnic violence. It is noted that ‘Solidarity without Borders’ reported that he arrived in Burundi safely and after being initially detained for the purpose of confirming his identity he was released without further incident or being the subject of any harm.
The Tribunal, having considered the country information as outlined above, and the vague details provided to the Tribunal as to the foundation of the applicant’s fears as to this claim, is not satisfied that the applicant faces a real chance in the reasonably foreseeable future of being persecuted and being subject to serious harm for his membership of the particular social group of returned convicted criminals. The applicant’s fears in relation to this claim are not well-founded.
Psychological harm
The applicant claims that that if he were to return to Burundi he would likely be killed for the reasons above. He fears that his children would then become orphans and would have to live life as he had as an orphan and he does not want his children to live a poor life in this world. He explained that these fears and his other fears as to being harmed and killed if he were to return to Burundi have caused him psychological harm. He further claims that his fears for his safety and his concerns as to how he could support himself in Burundi are causing him psychological harm now and will in the future cause him further psychological harm if he was returned to Burundi. The applicant explained that he had not been diagnosed nor has he undergone any psychiatric and/or psychological treatment or counselling but he has recently sought assistance whilst in detention at Christmas Island and has been provided with sleeping pills to address his fears and psychological stress arising from his concerns of being returned to Burundi. Additionally, the applicant claims that if he had to return to Burundi, he fears being further traumatised because of his past experience in Burundi that necessitated him to flee Burundi when his parents were killed, noting that on the applicant’s own evidence he has not sought any specialist medical and/or psychological treatment since arriving in Australia in 2005 in relation to his traumatic experiences in Burundi. Further, but for the applicant recently seeking assistance at the Christmas Island detention centre where he has been provided with some sleeping medication the applicant has not provided any persuasive information or supporting documentation relating to his need for ongoing psychiatric and/or psychological treatment for his childhood trauma or any other ongoing health issues and needs. Therefore, the Tribunal is not satisfied that the applicant requires access in the reasonably foreseeable future to psychiatric and/or psychological services, medication or any other medical assistance and intervention if he were to return to Burundi. The Tribunal finds that the applicant’s fears as to psychological harm are not well-founded.
Mixed ethnicity
The applicant claims both in his pre-hearing submission and in his oral evidence before the Tribunal that he is in danger of harm as he is of a mixed ethnic heritage. He explained that his father was Hutu and his mother Tutsi and as such he is not welcomed by either ethnic group in Burundi and that he will face harm and likely be killed if he returns to Burundi on account of him being of mixed ethnicity. His evidence as to this claim was that when he and his brother were at the refugee camp in Tanzania, they could not live in the Hutu section or the Tutsi section of the camp, as it was not safe for them as they were of mixed ethnicity. He explained that the UN placed them in the protection section of the camp which was for people of mixed ethnicity.
The applicant’s brother gave evidence as to this claim stating that he and the applicant had been placed in the protection section of the Tanzanian refugee camp after initially being placed in the Hutu section. He explained that the reason for this was because they were suspected of having information or taking information to the Tutsi and so they were placed in the protection section of the camp. The applicant’s brother also agreed that Burundi was a patriarchal society, and that ethnicity was determined by your father’s ethnic heritage. He further agreed that when in Burundi he was identified as Hutu due to his father being Hutu. He further explained that he and the applicant don’t belong to anyone (any ethnic group, Hutu or Tutsi) and that if his brother returned to Burundi, he would be killed due to his mixed ethnicity. He also stated that if he were to return to Burundi, he would not find a job as he does not belong to a group and so as a mixed person it would be very hard in Burundi.
The Tribunal having considered the relevant country information as to the issue of ethnicity as outlined above at paragraph 32, and the applicant’s brother’s evidence that he was recognised as Hutu when he was in Burundi is not satisfied that the applicant would be viewed as being of mixed ethnicity if he returned to Burundi. The Tribunal prefers the independent country information and finds that the applicant would be viewed as being Hutu if he were to return to Burundi. The Tribunal in this regard is not satisfied that the applicant faces a real chance of persecution involving serious harm as a result of him being identified as being a member of a particular social group, that being of mixed ethnicity. The Tribunal does not accept that there is such a particular social group given the patriarchal societal views in Burundi. The Tribunal finds that the applicant does not in the reasonably foreseeable future face a risk of persecution involving serious harm for his supposed membership of the particular social group of members of mixed ethnicity in Burundi. The applicant’s fears of harm in regard to this claim are not well-founded.
Refugee criterion – s 36(2)(a) of the Act
Based on the information before it, the Tribunal having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the applicant’s claims finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the primary applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the primary applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burundi, that there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the primary applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36 (2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee criterion or the complementary criterion and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Burundi.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior MemberAttachment - 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.
…
p 8, [39].
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Remedies
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Standing
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