2212166 (Refugee)

The applicant sought judicial review of the Minister's decision to refuse his application for a Protection visa. The applicant, who had previously been granted a Protection visa in 2005, had that visa cancelled in 2018 under s 501(3A) of the Act following an Australian criminal conviction and imprisonment. After his visa cancellation was not revoked, he applied for a new Protection visa. The core of the dispute concerned whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under s 5J(1) of the Act, or whether there was a real risk of significant harm as a consequence of his removal to Burundi under s 36(2A) of the Act.

The court was required to determine if the applicant had established a well-founded fear of persecution based on his claims of generalised violence in Burundi, his lack of connections and knowledge of the country after a long absence, his status as a returning refugee, and the potential for him to be targeted by government-linked militias or criminal elements due to his perceived wealth or lack of support. Additionally, the court had to consider whether there were substantial grounds to believe that, upon return to Burundi, the applicant would face a real risk of significant harm, including denial of access to basic services threatening his subsistence.

The delegate's decision, which was under review, found that the applicant's fears of generalised violence did not constitute systematic and discriminatory treatment specifically aimed at him. The delegate was not satisfied that the applicant's unfamiliarity with Burundi or lack of support networks would lead to systematic harm, nor that he would face harm due to imputed political opinions, perceptions of wealth, or other factors. Consequently, the delegate concluded that the applicant did not meet the definition of a refugee under s 5H(1) or qualify for protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. The delegate also found no substantial grounds for a real risk of significant harm under s 36(2A). The court affirmed the delegate's decision.