2213906 (Refugee)

[2023] AATA 4164

2213906 (Refugee) [2023] AATA 4164 (7 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRSENTATIVE:   Ms Maria Zarifi (5510596)

CASE NUMBER:  2213906

COUNTRY OF REFERENCE:                   Burkina Faso

MEMBER:Alison Murphy

DATE:7 September 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 September 2023 at 2:14pm

CATCHWORDS
REFUGEE – protection visa – Burkina Faso – Federal Court remittal – political opinion – student activist – involvement in anti-government protest activities – Youth for Democracy Movement – credibility concerns – inconsistencies – mental health conditions – PTSD and co-morbid depression – language barrier – complementary protection – ‘significant harm’ – generalised violence – Sunni Muslim – criminal conviction in Australia – social media profile – failed asylum seeker – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
MIAC v SZQRB [2013] FCAFC 33

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 9 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Burkina Faso, applied for the visa on 22 August 2019. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.

3. On 8 September 2020 this Tribunal (differently constituted) affirmed the delegate’s decision (the 2020 Tribunal). The Tribunal’s decision was set aside by the Federal Court [in] August 2022 and the matter is now before the Tribunal pursuant to an order of the Court.

4. The applicant appeared before the Tribunal on 23 June 2023 to give evidence and present arguments. The Tribunal reconvened on 2 August 2023 to hear evidence from two witnesses, the applicant’s mother [Ms A] and the applicant’s brother [Mr B]. That hearing was scheduled to take place by video link from Burkina Faso, however the witnesses experienced technical difficulties joining the video call and so their evidence was taken by telephone.

5. Following the second hearing the Tribunal wrote to the applicant pursuant to s 424A of the Act. The applicant responded to the Tribunal’s letter on 1 September 2023.

6. The applicant was represented in the review and counsel appeared for the applicant at both Tribunal hearings.

   BACKGROUND

7. The applicant is a [age]-year-old male who claims to be a national of Burkina Faso. He first arrived in Australia [in] July 1997 as the holder of a visitor visa granted to him on 15 November 1996. The delegate’s decision records that he applied for a protection visa in 1997 which was refused by the Department. He sought a review from the former Refugee Review Tribunal, which affirmed the decision to refuse the visa, and then unsuccessfully sought Ministerial Intervention in 2000. He departed Australia [in] September 2001 and did not return until 2011.

8. The applicant re-entered Australia [in] December 2011 as the holder of a partner visa granted to him on 5 July 2011 on the basis of his marriage to an Australian citizen. [In] December 2013 he was convicted of importing a border-controlled drug and sentenced to [number] years’ imprisonment by the County Court of Victoria and his appeal was dismissed by the Court of Appeal [in] November 2014. On the basis of that conviction, the Minister cancelled his partner visa. The Tribunal is advised that as at the time of the Tribunal proceedings, litigation related to the cancellation of the partner visa remains ongoing.[1]

   [1] QYFM v MICMSMA [2023] HCA 15

9. Following the cancellation of the partner visa, the applicant applied for the protection visa on 22 August 2019.

   CRITERIA FOR A PROTECTION VISA

10. 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.

11. 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.

12. 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).

13. 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–5LA, which are extracted in the attachment to this decision.

14. 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

15. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

16. The Tribunal notes that DFAT has not prepared a report for protection status determination purposes in relation to Burkina Faso.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Documents before the Tribunal

18. The Tribunal has before it copies of the Departmental files relating to the current application for the protection visa and the cancellation of the applicant’s partner visa, as well as the Tribunal file relating to the current review.

19. As discussed with the applicant at hearing, those files contain some of the documents relating to the applicant’s first protection visa application in 1997 including a statutory declaration setting out his claims for protection and copies of the Departmental decision refusing the visa and the Refugee Review Tribunal decision affirming the decision to refuse the visa.

20. The Tribunal also noted at hearing that the cancellation file also contained correspondence indicating that the applicant was jailed for three months in [Country 1] for illegal entry into that country. The Tribunal also advised the applicant that it had been informed by the Department that the file relating to the grant of the partner visa was destroyed in a storage fire in Dubai in 2014 and is no longer available.

21. At hearing, counsel for the applicant confirmed that he had a copy of all of the documents available to the Tribunal, including the partner visa cancellation file containing the correspondence relating to the applicant’s offending in [Country 1].

    Credibility of the applicant’s claims

22. The central issue in the review is the credibility of the applicant’s claims to have been targeted for harm by the Burkina Faso government for his involvement in anti-government protest activities with the Youth for Democracy Movement in 1996.

23. Credibility issues arise because of significant differences in the substance of the claims made by the applicant in his 1997 protection visa application as compared to his 2019 visa application as well as other inconsistencies in the applicant’s evidence.

24. In particular, in the 1997 visa application the applicant claimed that he fled Burkina Faso in 1995 or 1996 immediately after coming home from an anti-government protest to find his parents, brother and siblings murdered by the Burkina Faso authorities after they came to the house looking for the applicant. In the 2019 visa application, the applicant acknowledges that his parents and siblings were not murdered as previously stated but claims that he was imprisoned by the Burkina Faso authorities in 1995 or 1996 after being captured on the way home from an anti-government protest. He claims his father and supporters bribed people to secure his release after which he fled the country.

25. It is submitted that the inconsistencies in the applicant’s accounts as to what caused him to leave Burkina Faso have arisen in circumstances where the applicant has been required to give his account of why he fears persecution on multiple occasions and that there has always been – and remains – an acceptable explanation for these inconsistencies, being that the applicant was traumatised by what happened to him in Burkina Faso and that he experienced language barriers and mental health conditions.

26. It is submitted that the medical evidence provided to the Refugee Review Tribunal soon after his arrival showed he ‘demonstrated symptoms of both major depression and post-traumatic stress disorder’ (PTSD) ([Dr C] (general practitioner), 6 December 1998); ‘suffers from severe [PTSD]…’ ([Dr D] (consultant psychiatrist), 25 March 1999) and ‘appear[ed] to have trauma related memory problems, which [made] it difficult for him to give a consistent, chronological account of his persecution, trauma and subsequent flight from Burkina Faso’ ([Mr E] (psychologist), 8 August 1999). More recently, [Dr F] concluded that the applicant met diagnostic criteria for PTSD, and that the disorder can affect a person’s memory and lead to distorted memories.

27. It is submitted that the Tribunal should accept the medical evidence available to it and assess the applicant’s credibility in light of his diagnoses, and the effect that his PTSD has on his ability to recollect clearly what happened to him before he left Burkina Faso. It is submitted that unlike the decisions made by previous decision-makers, this Tribunal should find there is a rational and acceptable reason for the inconsistencies in the applicant’s account and accept the corroborating evidence of the applicant’s mother, brother and friend and accept that the scarring shown on the applicant’s body is consistent with his claims.

28. In relation to the country information, it is submitted that the applicant relies on reports throughout the 1990s of student demonstrations in Ouagadougou and of students being arrested and detained that were provided to the Tribunal.

    Medical evidence before the Tribunal

    The medical reports from the time of the applicant’s first protection visa application

29. The applicant has provided the Tribunal with a number of medical reports from 1998 and 1999. Some of those reports are also contained in the Departmental materials provided to the Tribunal in the context of the current review.

30. A letter from [Mr E], psychologist and counsellor/advocate with [Organisation 1] dated 18 August 1999, was written in the context that [Mr B] be granted an in-person hearing before the Refugee Review Tribunal, rather than one conducted by video conference. [Mr E] states that he has been providing support and counselling to the applicant since February 1998 and has observed several subtle deficits which are likely to interfere with his ability to convey his claims at a Refugee Review Tribunal interview. He refers to trauma-related memory problems, difficulty judging which facts are important to the listener and ‘strong aversive stress reactions when discussing the murder of family members … [O]n those occasions he slowly becomes withdrawn until he cannot speak any further’. [Mr E] states that the reasons for the applicant’s idiosyncratic presentation are hard to determine and he would recommend further specialist cognitive assessments which have not taken place because of his lack of finances and status as an asylum seeker.

31. A report from [Dr C], GP, dated 6 December 1998 recounts the applicant’s claims of fleeing Burkina Faso after coming home and finding that his mother, father and [brothers] had been murdered by that country’s security police. He recounts the applicant also told him that he was taken to the police station and bashed on approximately four occasions and notes that physically there are a number of scars on his body which he attributed to bashings from police in Burkina Faso. Under the heading ‘Impression’, [Dr C] states that the applicant suffered major depression and post-traumatic stress disorder as a result of his catastrophic stresses stemming from the murder of his family and subsequent flight from his country. He states that it is expected the applicant will have ongoing psychiatric problems as a result of the events described and would require ongoing therapy and medication for the foreseeable future.

32. A report from [Dr D], consultant psychiatrist, dated 25 March 1999, states that the applicant was referred to him by [Dr C] and recounted to him traumatic events in Burkina Faso, including that he was an active participant in the Youth for Democracy Movement which was against the ruling government of Burkina Faso. He records the applicant as stating that because of his involvement in that movement at the university the security police came looking for him and when they did not find him in his home they killed his father, mother, one of his [brothers] and sister. Having seen almost all his family members killed, he decided to flee. [Dr D] concludes that from the history and information available to him:

    . . . I am of the opinion that the applicant suffers from Severe Post Traumatic Stress Disorder and he is still haunted by the “flash back and memories and images of his family’s massacre”.

33. The Tribunal accepts that each of the above reports were written in good faith, based on information provided to the authors by the applicant. The difficulty with those reports is that they are each predicated in large part on the applicant’s 1997 claims that he returned from his protest activities to find his family murdered. [Dr D] describes the applicant as ‘haunted by the “flash back and memories and images of his family’s massacre”’ while [Mr E] records that he has ‘strong aversive stress reactions when discussing the murder of family members’. [Dr C] states that the applicant’s depression and post-traumatic stress disorder is ‘a result of his catastrophic stresses stemming from the murder of his family and subsequent flight from his country’.

34. As is discussed in detail later in these reasons, the applicant now acknowledges that his family members were not in fact murdered by the Burkina Faso authorities as claimed in the 1997 visa application and that those events as recounted to his medical team did not occur. Rather the evidence before this Tribunal is that the applicant’s father died in 1995 and his mother and siblings remain living in Burkina Faso. The applicant’s mother and one of his brothers gave written and oral evidence to the Tribunal.

35. For these reasons the Tribunal concludes that the reports from [Dr C], [Dr D] and [Mr E] are based on incorrect information provided by the applicant to his medical team about the murder of his family in Burkina Faso. It follows that if the applicant was experiencing mental health conditions at the time of those reports, those mental health conditions did not have their genesis in the murders of the applicant’s family as reported by his medical practitioners.

36. Having considered the detailed nature of the medical reports and the various assessments of the applicant’s symptoms described in those reports, the Tribunal accepts the applicant experienced major depression and PTSD between 1997 and 1999. It is not appropriate that the Tribunal speculate about the possible causes of those mental health conditions, other than to observe that they clearly do not arise out of the murder of his family members as suggested by those reports. [Mr E] states that the reasons for the applicant’s idiosyncratic presentation are hard to determine and he would recommend further specialist cognitive assessments that were not able to be pursued because of his lack of finances and status as an asylum seeker.

    Current medical reports before the Tribunal

    Report of [Dr F] dated 25 March 2023

37. [Dr F]’s report constitutes the most current and comprehensive medical evidence available to the Tribunal. [Dr F] states that she interviewed the applicant for one and a half hours by video on 13 September 2022, telephoning him on 4 October 2022 to clarify information. She also spoke to the applicant’s son, [Mr G], via video for about 45 minutes on 21 February 2023 and was provided with copies of the applicant’s affidavit made 8 September 2020 as well as documents relating to his litigation before the Federal Circuit and Family Court of Australia and the Federal Court of Australia.

38. [Dr F] reports that the applicant did not report any suicidal ideation or self-harm behaviours at the time of interview. When asked about the apparent inconsistencies between the visa applications in 1997 and 2019, he responded that he ‘was dishonest’ because he ‘was desperate’ and feared losing his children and being sent back to Burkina Faso where he feared being recaptured, harmed or killed (at paragraph 43).

39. [Dr F] states the applicant was administered the psychiatric self-report inventory, the Symptom Checklist-90 Revised. ‘Overall [the applicant’s] … symptom profile reveals a pattern and magnitude considered in the clinical range and qualifies him as a positive clinical case. However with an extremely large number of syndromes elevated, it is difficult to interpret score patterns unless one or more dimension scores are unusually high. Regardless, it is clear that [the applicant] is experiencing significant psychological distress’ (at paragraph 55).

40. [Dr F] concludes that the applicant’s symptoms meet the criteria for PTSD, with co-morbid depression. She states that ‘the traumatic events for [the applicant] were his experiences in Burkina Faso including being captured and beaten for his participation in anti-government activities. He is currently attending psychological counselling every week or every fortnight or when the psychologist is available, and he also receives phone calls from [Organisation 2] for mental health support and stress management’.

1. In [Dr F]’s opinion if the applicant does not continue with treatment, there is a risk of development of personality changes, maladaptive forms of behaviour and distrustful attitudes and increased suicide risk. She notes that PTSD commonly affects an individual’s verbal memory and is associated with impairments in an individual’s memories of the traumatic events, and unsuccessful suppression attempts may also lead to more intrusive memories of the trauma as well as distorted memories of the trauma (at paragraph 79).

2. In [Dr F]’s opinion, the applicant’s criminal offending was contributed more by situational factors that resulted in poor decision making than by his mental health condition (at paragraph 80). If he continues to engage with services and participates and responds to community-based intervention, it is her opinion that he has a low risk of engaging in further serious criminal conduct.

3. The Tribunal accepts [Dr F]’s diagnosis that the applicant suffers from PTSD with co-morbid depression. The Tribunal further accepts [Dr F]’s other conclusions as outlined at paragraph 84 of her report:

   a)The applicant suffers from Post-Traumatic Stress Disorder (PTSD) with co-morbid depression as defined by DSM-5;

   b)He is currently receiving treatment for his condition (set out earlier in the report as being psychological counselling every week or every fortnight or when the psychologist is available, and phone calls from [Organisation 2] for mental health support and stress management). If treatment ceases, he will be at risk of developing personality changes with high levels of personal and social consequences, including difficulties finding employment, accessing support services and forming prosocial relationships.

   c)He is unlikely to receive treatment for PTSD in Burkina Faso and if returned to that country his PTSD will likely become more severe. He will also experience psychosocial difficulties due to the stigma attached to mental disorders in African countries.

   d)Prolonged detention will add to the cumulative effects of his previous traumas and worsen his condition.

   e)PTSD commonly affects an individual’s verbal memory and recall of the traumatic events.

   f)His criminal offending was mainly contributed to by situation stressors that resulted in poor decision making rather than his mental health condition.

   g)If he participates in and responds to community-based intervention, he has a low risk of engaging in further serious criminal conduct.

   h)Continued detention or deportation of the applicant is deleterious to his children’s mental health by perpetuating the instability of the family system, extending parental neglect and prolonging their financial hardship. For the school aged children, ongoing parental absence is likely to maintain their academic and behavioural problems.

   Other evidence relevant to the applicant’s medical conditions

4. A letter from a senior clinician at the Department of Justice and Community Safety’s Forensic Intervention Services dated [in] September 2019 records that the applicant was referred to that service in March 2015 but was considered ineligible for assessment or intervention because his convictions were non-violent in nature and he was assessed as being at low risk of future offending. The Tribunal accepts that to be the case.

5. The Tribunal has also been provided with a number of photographs of scarring on the applicant’s body which the applicant claims is the result of beatings he received from the Burkina Faso authorities. The Tribunal accepts that scarring was present when the applicant first arrived in Australia in 1997 and is the scarring referred to in the above medical reports. For the reasons discussed in detail later in this decision record, the Tribunal does not accept that the applicant was arrested, detained, beaten or otherwise harmed by the Burkina Faso authorities. While the Tribunal accepts the applicant had scarring on his body when he arrived in Australia in 1997, the Tribunal does not accept that scarring occurred in the manner described by the applicant.

   Conclusions as to the medical evidence

6. For the reasons set out above, the Tribunal has accepted that the applicant experienced symptoms of major depression and PTSD between 1997 and 1999 and that he had scarring on his body when he arrived in Australia in 1997. The Tribunal has also accepted [Dr F]’s diagnosis that the applicant currently suffers from PTSD with co-morbid depression.

7. The Tribunal is not bound by what a medical professional concludes as being the reason for an applicant’s symptoms.[2] The reports of [Dr C], [Dr D] and [Mr E] conclude that the applicant’s symptoms arose from the murder of his family members, but it is now known that event did not occur.

   [2] MZWZB v MIMA [2006] FMCAA 4211

8. In the most recent report [Dr F] states that the traumatic events that caused the applicant’s mental health conditions were his experiences of being captured and beaten for his participation in anti-government activities in Burkina Faso. However for the reasons set out in detail below, the Tribunal’s very grave concerns about the applicant’s credibility have caused it not to accept that the applicant was ever captured or beaten for participating in anti-government activities in Burkina Faso. While the Tribunal accepts the medical diagnoses contained in the medical reports, it concludes that to the extent that those reports tend to corroborate the applicant’s account of the events underlying his refugee claims, they are to be given little weight.[3]

   [3] MIAC v MZYHS & Anor [2011] FCA 53

   Country of nationality

9. The applicant claims to be a national of Burkina Faso and has produced to the Department a copy of the front pages of a Burkinabe passport issued to him [in] 2011 and expiring in 2016. At hearing the applicant confirmed that he had entered Australia using that passport in 2011, that it has since expired and has not been renewed and that he does not know the location of the original passport.

10. At hearing the Tribunal discussed with the applicant a number of contrary statements he had made about his nationality during the course of these proceedings and in his first protection visa application.

11. In the Assessment of Protection Obligations dated 29 January 1998, the delegate recorded that the applicant had lodged a protection visa application on 16 October 1997. In that visa application he stated that his date of birth was [Date 1], that he was [age] years old and that he had travelled to Australia as the holder of a passport issued by the United States of America in Cape Town in June 1997. The delegate recorded that in an interview with a Departmental officer the applicant conceded that this information was not true and his correct date of birth was [Date 2], that he made an application for an Australian tourist visa at the Australian High Commission in Pretoria and that he used his own passport to travel to and enter Australia. The 1998 delegate’s decision records that in the application for the tourist visa, the applicant stated that his passport was issued by South Africa, but at interview he denied that and stated that it was issued by Burkina Faso. It records that the Department checked with the South African authorities who confirmed that the applicant was never issued with a South African passport and he later produced to the Department a photocopy of a Burkina Faso passport, telling the Department that he tore up the original Burkinabe passport before he arrived in Australia. When his previous statements were discussed with the applicant at the Tribunal hearing on 23 June 2023, the applicant stated that he had never held passports from the US or South Africa and any inconsistent statements must have arisen because of his poor English. The Tribunal accepts that the applicant is not a national of the US or South Africa.

12. In the current protection visa application, the applicant stated that he has the right to enter and reside in Dubai where he holds a valid visa. Later in the same visa application he states he holds a passport from Saudi Arabia, saying that he obtained it after applying from Dubai but that it is now expired. When asked about this at hearing the applicant gave evidence that he lived in Dubai for approximately six years and that he has never held a passport from Saudi Arabia, rather he was unclear about what question was being asked in the form. He said he had visited Saudi Arabia for a few weeks for religious reasons. The Tribunal accepts that the applicant is not a national of Saudi Arabia.

13. The Tribunal finds the applicant is a citizen of Burkina Faso and no other country and has assessed his claims against that country as his country of nationality and the receiving country.

    PERSONAL BACKGROUND OF THE APPLICANT

14. The applicant was born in Ouagadougou, Burkina Faso on [Date 2]. He grew up in a household comprising his parents and three siblings, brothers [Mr B] and [Mr H] and sister [Ms I]. He told the Tribunal he is an adherent of the Sunni branch of Islam.

15. While the applicant has at times stated he was at university in Burkina Faso at the time the events that caused him to leave that country occurred, in a statutory declaration dated 9 May 2023 he states he attended primary school and secondary school in Ouagadougou, before studying [Discipline 1] at [Education Provider 1], which he describes as being like Year 12. At hearing he gave evidence that he had tried to translate his education history in Burkina Faso to the equivalent education stages in Australia and that the [Discipline 1] course he was studying at [Education Provider 1] was roughly equivalent to Year 12 in Australia. The Tribunal accepts his explanation in this regard.

16. The delegate’s decision records that in the 1997 visa application, the applicant stated that he was married with two children at the time he left Burkina Faso. Throughout the course of the current application, the applicant has consistently stated that this was not correct and that the persons named in that application as his children are in fact his siblings. At hearing the applicant gave evidence that he never had a wife or children in Burkina Faso, rather he had put his siblings’ names in the visa application as his children in the hope that he could help them migrate to Australia if he was able to stay. The Tribunal accepts that explanation and finds that the applicant was not married and did not have children at the time he left Burkina Faso.

17. The applicant has made various statements over the course of these proceedings about when he left Burkina Faso. In the current visa application, he did not answer a question asking the date of his departure from his home country. The delegate’s decision records that he was interviewed on 17 December 2019 and he stated at that interview that the events that caused him to leave Burkina Faso took place in 1996. In a written statement dated 4 June 2020, he states that he fled that country in approximately late 1995, fleeing to neighbouring countries of Benin, Nigeria and South Africa before coming to Australia. At hearing he estimated that he left Burkina Faso in 1995 or 1996 and said he was unable to recall the details, but that it was roughly two years before he arrived in Australia [in] July 1997. When the Tribunal noted that would mean he left Burkina Faso in mid-1995, which was earlier than he had previously stated, the applicant said he could not remember months or years or be more specific. He said he was living in [Country 2] at the time he made the tourist visa application in November 1996 and that it took him some months after the grant of that visa to travel to Australia because he was probably saving up the money for his travel.

18. The delegate’s decision dated 9 March 2020 records that the applicant applied for the first protection visa in 1997. That application was refused and the applicant sought a review of that decision from the former Refugee Review Tribunal before asking the Minister to intervene in 2000. The request for Ministerial Intervention was unsuccessful and the applicant departed Australia [in] September 2001 and did not return until 2011.

19. At hearing the applicant gave evidence that he married an Australian citizen in 2000 and he and his wife left Australia in 2001 because they were told they had to go offshore to lodge the partner visa application. They travelled to [Country 3] where he stayed for a few months before travelling to [Country 4]. When asked where he had resided during his 10-year absence from Australia, the applicant stated he had difficulty remembering. He estimated that he had lived in [Country 4] for approximately six years, working for [specified employer]. He said he travelled to Saudi Arabia for religious reasons, staying only a few weeks, but denied working in that country as stated in the visa application. He said he returned to [Country 3] several times and spent about one and a half or two years living in [Country 1], returning to Australia as the holder of a partner visa [in] December 2011.

20. An email on the Department’s cancellation file from a Commonwealth officer on Thursday Island, Torres Strait records that [in] July 2004 the applicant appeared in [the] Magistrates Court charged with one count of illegally entering [Country 1] for which he was convicted and sentenced to three months’ imprisonment. That email notes that a local [Country 1] auxiliary constable was also prosecuted for aiding, abetting and harbouring the applicant on the night of [date] July 2004 and that prior to his detention, the applicant was actively seeking assistance from people [in Location 1] to travel to [Location 2]. It records that following his detention, the applicant briefly escaped and had to be recaptured. During subsequent questioning the applicant admitted to disposing of his passport during his brief period of freedom and that passport was later recovered. He told the [Country 1] authorities that he had entered [Country 1] via [City 1] in the [Country 3] province of [Province 1].

21. At hearing the applicant agreed that he had been jailed in [Country 1] but stated this was a misunderstanding after he entered [Country 1] for tourism purposes by land from [Country 3] at a time when the border crossing office was closed. He said that he was jailed because he could not pay the fine and that the police statement suggesting that he had escaped from custody and disposed of his passport was untrue. The Tribunal discussed with the applicant that one inference that might be drawn from those events was that he had been trying to illegally cross from [Location 1], [Country 1] to [Location 2], Australia. The applicant denied this, saying he just wanted to go fishing and he didn’t even know that [Location 2] was part of Australia. [Location 1] is approximately [number]km from [Location 2].[4] In response to the Tribunal’s s 424A letter it is submitted that the applicant maintains he did not intend to enter Australia illegally. The Tribunal does not accept the applicant’s explanation, rather it finds the applicant was jailed for illegally entering [Country 1], that he briefly escaped custody and attempted to dispose of his passport and that he tried to enter Australia from [Country 1] without a visa via [Location 1] and [Location 2].

    [4] [Source redacted].

22. The applicant and his former wife have [number of] Australian citizen children. Their birth certificates as provided to the Department indicate that they were each born in Melbourne between [year] and [year]. The applicant’s former wife is currently resident overseas and the applicant’s evidence is that she abandoned the family long ago. At present the applicant’s [children] live with their maternal grandmother [Ms J] in Melbourne, Victoria. In written evidence to the Tribunal, [Ms J] states that she has been the sole carer of these children over a period of 12 years during the applicant’s incarceration because her daughter lives and works in [Country 4] and has no plans to return to Australia or care for the children. The Tribunal accepts that to be true.

23. At hearing the applicant gave evidence that he worked for a period as a [Occupation 1] in Melbourne and the Tribunal accepts that to be true. The materials before the Tribunal indicate he has been in criminal and immigration detention since around the time of his last arrival into Australia in mid-2012 after re-entering Australia [in] December 2011 as the holder of a partner visa.

    STATEMENTS FROM FAMILY MEMBERS IN AUSTRALIA

24. The Tribunal has been provided with two witness statements from the applicant’s family members in Australia.

25. A statement from the applicant’s mother-in-law, [Ms J], records that she has been the sole carer of the applicant’s [children] (now aged [age] to [age]) for the past 12 years. During that time the applicant has been in jail and immigration detention while her daughter and the mother of the children works and lives in [Country 4] and has no plans to return to live in Australia or care for her children.

26. [Ms J] states that she is [age] years old with serious health complications for which she requires surgery, but she has put off treatment because undergoing these surgeries would leave the children to fend for themselves for months or years to come. She worries for the future of the children if the applicant is deported as they have already lived much of their lives without parental figures. She wishes the applicant to remain in Australia so that he can take responsibility for the children so that she can prioritise her health and the rest of her life.

27. The applicant’s son, [Mr G], states in his witness statement that he and his siblings have grown up through a large portion of their lives without their parents and with only their retired grandmother to support, care and provide for them. [Mr G] has to help care for his grandmother while raising his younger siblings and himself and the stress of these issues has led to many mental health issues. He has had to turn down educational opportunities to prioritise his family and is now facing extreme burnout which has left him unable to study or work, further impacting on the wellbeing of the family. He worries that if his father is refused a visa and has to return to Burkina Faso, [Mr G] and his siblings will never get the chance to see him as it is not a safe place. He and his siblings have tried hard to develop a close relationship with their father through regular phone calls and visits but these opportunities are limited especially for his youngest brother who never had the opportunity to live with his father. The pressure experienced by [Mr G] will also fall on his younger sister, now aged [age], and impact on her education. Their youngest brother, now aged [age], still has the chance to be raised and cared for by their father in this country rather than lose him to an unsafe country where they may not see him again.

28. [Ms J] and [Mr G] attended the first Tribunal hearing to support the applicant. The Tribunal was advised by counsel appearing for the applicant that they were not intending to give oral evidence but were available to answer any questions about their written statements if required. The Tribunal advised the applicant and his representative that it accepted the contents of their written statements.

    CLAIMS FOR PROTECTION

29. In the 2019 protection visa application, the applicant stated that he left Burkina Faso because he was a student activist protesting against the government. He claimed that he was imprisoned and tortured for seven months and that fellow activists imprisoned with him were killed. He stated that supporters of the activists paid the government to let him go, but he was told to leave the country. He did not try to relocate within Burkina Faso because conditions were too dangerous and if he had been recaptured he would have been killed. After his release, the government captured his father and tortured him to death in 1996. He fled the country to [Country 5] and then to [Country 2] where he successfully applied for a visa to Australia. He claimed that if returned to Burkina Faso, he will be captured and killed. Along with his protection visa application the applicant provided copies of his passport, Australian marriage certificate, Victorian driver’s licence and Australian birth certificates for his [children].

1. In a written statement dated 4 June 2020, he elaborated on his claims stating that he fled Burkina Faso in late 1995 because he was a political activist for the National Council for the Revolution protesting against the killing of Thomas Sankara and for democracy, justice, human rights, social justice, transparency and an end to corruption and killing. His father was also a political activist for the Council of Popular Salvation who experienced much hostility and unrest due to his political opinions. The applicant claims that he was captured by the authorities during his last year of high school as he was leaving the protests and heading home and taken to prison with other student protesters. He claims to have experienced beatings and torture and to have been deprived of food and water while in prison. He claims that in desperation, his father and supporters of the student movement paid money to prison officials to secure his release on condition he left Burkina Faso. When the government found out he had fled from prison, they searched for him. When they could not find him they captured his father who was tortured and later got sick and died from his injuries.

2. At the Tribunal hearing, the applicant gave evidence that he started attending protests with his father and that his involvement in protests was exposed while he was at high school. He said that a couple of months before he left Burkina Faso he was arrested after he marched in the streets with banners, exposing the government and what was going on with the country. When he left the group to return to his home, he was captured and taken to the central police station before being taken to [named] prison. While he was detained he was slapped, kicked and beaten with sticks. He said he was detained for one to two months and was not taken before a court. He claims he was released after his father and his supporters bribed the police to release him. He gave evidence that this was the only occasion on which he was detained or had any interactions with the Burkina Faso authorities.

3. At hearing the Tribunal discussed with the applicant that his claims in the current proceeding were very different from those in his first protection visa application, in which he stated that he fled Burkina Faso after returning home from a protest to find his parents and siblings murdered in their home. The applicant said that he didn’t deny those inconsistencies, but he was experiencing a language barrier. When the Tribunal noted that it was having difficulty accepting that a language barrier could explain the difference in his claims given that he had repeated the story at the Departmental interview, the Tribunal hearing and to his treating doctors, the applicant agreed that was correct but said that he was suffering from PTSD and in a confused state. When asked if he believed the statements in the first protection visa application were true at the time he made them, the applicant said that he was confused and scared. When asked again if he thought those statements were true at the time he made them, the applicant said he didn’t know what to say, he was in a confused state and scared of returning to Burkina Faso. The Tribunal noted that the discrepancies between his claims in the two visa applications made it very difficult to accept that his evidence was true.

4. At the first Tribunal hearing, the Tribunal discussed the written statement dated 5 September 2019 received from the applicant’s mother [Ms A]. In the course of that discussion it became apparent that there was a more recent statement from [Ms A], which had inadvertently not been provided to the Tribunal. A copy of that statement was handed up during the hearing.

5. In her first written statement dated 5 September 2019 [Ms A] states that it was her husband [Mr K] who was politically active and attracted the anger of political leaders, leading to his arrest and imprisonment and later death from a disease he contracted in prison. She does not suggest in that statement that the applicant was politically active or that he was detained, rather she says that as a result of her husband’s political activities and a lack of real democracy in Burkina Faso, the family were forced to live in hiding and move around frequently for their survival and that it was this situation that forced her son (the applicant) to go into exile.

6. However in the later written statement made 10 May 2023 that was handed up to the Tribunal during the first hearing, [Ms A]’s evidence changes considerably. She states that the applicant was involved in student politics while studying at college and was arrested in the mid-1990s and placed in [named] prison, where he was tortured and beaten. She states that she cannot say exactly when this happened, but she recalls visiting the applicant in prison. He was in prison for around two and a half months before her husband negotiated his release from the prison and the applicant fled Burkina Faso soon afterwards. She states that she used to have, but no longer has, documents showing that the applicant went to prison. She states that police still regularly visit the neighbourhood and ask about people like the applicant who have fled and around a month ago, she was visited by police who asked her where the applicant was.

7. The Tribunal discussed with the applicant that [Ms A] had not stated in the 2019 statement that the applicant was politically active or that he was detained, in contrast to her later statement. The applicant stated that his mother was not well-educated and may not have known what to say. The Tribunal noted at that hearing that it had very significant concerns about the identity of the author of those statements as well as the credibility of their contents and it may not accept them to be true. Counsel for the applicant advised the Tribunal that in those circumstances the applicant wished the Tribunal to hear from [Ms A] and the applicant’s brother [Mr B] and arrangements were made for those witnesses to give oral evidence to the Tribunal at a video hearing on 2 August 2023.

8. Prior to the hearing on 2 August 2023, [Ms A] requested a Mooré interpreter in order to give oral evidence to the Tribunal, however the Tribunal’s interpreting agencies were unable to locate a Mooré interpreter, accredited or unaccredited, anywhere in Australia. As [Ms A] made her written statements to the Tribunal in French, an accredited French interpreter was booked. At several points during [Ms A]’s evidence the French interpreter advised the Tribunal of the difficulties she was having in her communications with [Ms A] and it was apparent that [Ms A] struggled both to understand the French interpreter and to be understood by her.

9. Such evidence as the Tribunal was able to elicit from [Ms A] in these circumstances was broadly consistent with the 10 May 2023 written statement. She said her husband was involved in politics and he was also put in jail. He was released from jail and came back home before he died and this occurred before the applicant left the country. When asked about her husband’s political involvement she said she didn’t know what involvement he had as she didn’t ask him. When asked about her son’s involvement in politics, she said she could not explain it well but she knew there had been problems and that there were definitely problems now. When asked about those problems, she said that police officers were always roaming around asking about the applicant and they spoke to the neighbours a lot. When asked if she herself had spoken to those people, she said that all she told them was that she didn’t know where her son was. When asked about the differences between her 2019 and 2023 written statements, she said she was having trouble understanding the language of the interpreter as her French was not very good. She said she didn’t have copies of her written statements and she couldn’t remember exactly what had been said and so she couldn’t answer questions about these matters. She said that things were very different in Africa than they were in Europe and it was difficult for her to express herself.

10. A statement from the applicant’s brother, [Mr B], was submitted to the Tribunal on 19 August 2020. That statement is written in English and states that their father was a democracy activist and the applicant a political student activist studying in his first year at [Education provider 1] when he was captured and taken to prison and tortured. The letter records that their father and student supporters raised money and paid officials to release him from prison, after which he fled to neighbouring countries on his way to Australia. He states that the government of Burkina Faso are still looking for the applicant and sometimes come by their house to check on him and if the applicant returns to Burkina Faso they will take him and kill him.

11. At hearing [Mr B] emphasised that he was only a young child of [age] or [age] when the events that form the basis of the applicant’s claims took place and he knows only a little bit of what occurred which he has heard from his mother and their neighbours. He has heard that his father and brother were involved in politics, his brother was involved in some sort of demonstration in the streets, there were fires, people were attacked with knives and some were killed. He was told by his mother and neighbours that his brother had been captured, put in prison and tortured.

12. When asked if the family had had problems since his brother’s departure from Burkina Faso, he stated that all of them had problems but he couldn’t talk about that. When asked why he couldn’t talk about those problems, he repeated that there were many problems but he couldn’t talk about it. When asked if people had come looking for his brother, he said many people had done so. He said that they didn’t know who those people were but they were wearing some kind of uniform and he couldn’t remember dates. When asked if he could provide even an approximate time frame, he said he couldn’t remember dates and besides he travelled around a lot. When asked if he had ever spoken to those people himself, he said he didn’t have the time. When asked if he could remember seeing those people in 2023, he said he is told that they continue to come over and ask questions about his brother but he is not too sure. When asked if he himself had seen those people coming to the house this year he said maybe once or twice but he doesn’t recall.

13. A letter of support from [Mr L] dated 18 August 2020 does not specifically name the applicant, but refers to his ‘brother’ as being a student and political activist who could not reach expectations due to an incident that happened to him and his family. It states that he became a wanted enemy who was fighting for his country and its citizens and was arrested for protesting against the government. When the government realised he had fled from prison, they searched for him and when they could not find him they arrested his father in his place. [Mr L] claims the applicant’s father died through humiliation and abuse after being maltreated and becoming sick and dying and if the applicant returns he too will be killed. At hearing the applicant told the Tribunal that [Mr L] was a friend from Burkina Faso and that when the applicant had recently tried to contact him, his phone was disconnected.

14. At hearing the Tribunal noted that the applicant had entered Australia in 2011 on a Burkinabe passport issued to him [in] 2011 and asked him how his passport was renewed. The applicant gave evidence that he asked his brother in Burkina Faso to renew his passport. When the Tribunal put to him that this may be an indication that the Burkinabe authorities had no adverse interest in him, the applicant said that his brother may have paid a bribe to have the passport issued.

15. The Tribunal has also been referred to country information reports for Burkina Faso for 1996 and 1997 in support of the applicant’s claims that student protesters were targeted for harm by security forces in Burkina Faso at the time he claims to have been detained. The 1996 report refers to an investigation into the May 1995 shooting deaths of two unarmed high school demonstrators in Garango, that investigation yielding no results. It also refers to the disappearance of a medical student in 1990, detained following student demonstrations, noting credible reports that he was tortured and killed by security forces. It also states that there were no reports of politically motivated disappearances and that a few intellectuals, military officers and former government officials remain in self-imposed exile abroad following the October 1987 coup, but that most desiring to do so had repatriated themselves.[5]

    [5] US Department of State Burkina Faso Country Report on Human Rights Practices for 1996

16. The 1997 report states that while there were no reports of political or other extrajudicial killings, there was no progress made in punishing those responsible for abuses committed in past years including those referred to in the 1996 report.[6] The Tribunal has also considered an article titled ‘The Three Ages of Student Politics in Francophone Africa’ submitted by the applicant as well as the US State Department’s 1993 Country Report on Human Rights Practices in Burkina Faso, which reports that during disturbances at the University of Ouagadougou in February, police arrested and killed a passer-by and the government made no apparent effort to investigate the incident or the violence that occurred at a local high school in the capital the next day.[7]

    [6] US Department of State Burkina Faso Country Report on Human Rights Practices for 1997

    [7] US Department of State Burkina Faso Country Report on Human Rights Practices for 1993

17. The Tribunal has carefully considered the oral and documentary evidence of the applicant and his mother and brother and the support letter from [Mr L] which, if accepted, would appear to corroborate the applicant’s claims of being a student activist who was targeted, detained and tortured for reason of his political activities by the Burkina Faso authorities in or about 1995 or 1996. While that evidence was scheduled to be given by video link from Burkina Faso in part so that the witnesses could show identity documents to the Tribunal, as noted above the witnesses experienced technical difficulties joining the video call and so their evidence was taken by telephone. The Tribunal records that it accepts the identity of those witnesses, each of whom provided copies of their identity documents to the Tribunal prior to the 2 August 2023 hearing.

18. While the Tribunal accepts that the evidence of the applicant’s mother and brother was given out of a genuine and natural desire to assist the applicant who is a close family member, it does not accept that the events described by those witnesses ever occurred. Nor does it accept that the events described in [Mr L]’s letter occurred as stated. This is because the Tribunal’s concerns about the credibility of the applicant are so significant that the witnesses’ evidence does not assuage them.

19. For the following reasons the Tribunal does not accept the applicant was a student activist nor that he was arrested, detained, tortured or harmed by the Burkina Faso authorities prior to his departure from that country.

20. Firstly, the applicant’s claims in the 2019 visa application are markedly different from the claims made in the 1997 protection visa application. In a statutory declaration made on 16 October 1997 in support of the first protection visa application, the applicant stated that he came home from a particularly large meeting at the university to see that his father, mother and [brothers] had been killed. He stated that he was told by his neighbour that security officers had come and killed his family leaving only his youngest brother alive. He claimed that his neighbour told him that those security officers had come looking for the applicant and when they didn’t find him, they killed his family.

21. The applicant later sought a review of the Department’s decision to refuse him the protection visa from the Refugee Review Tribunal, and on 16 December 1999 that Tribunal affirmed the decision to refuse the applicant the protection visa. In the Tribunal’s decision record, the applicant is recorded as stating at hearing that on 5 December 1995 he went home from a student protest and saw that his parents had been massacred together with his brother and sister and that he saw blood everywhere. The Refugee Review Tribunal also heard evidence from the applicant’s psychologist from [Organisation 1] who is recorded as stating that the applicant had said that members of his family had been killed and that he had found their bodies.

22. The applicant now acknowledges that his claim about his family’s murder was incorrect and has given various explanations for how it came to be made. The delegate’s decision dated 9 March 2020 records that when he was reminded of these claims at the interview relating to the current protection visa application, he responded by saying that at that time he was new to Australia and did not speak English very well. In an email to the Tribunal dated 3 September 2020 he claimed that when he was released from prison he was told that his family had been murdered and he believed that for several years, discovering some time later that it was his neighbours that had been murdered and not his family.

23. In a further written statement dated 5 May 2023, the applicant stated he acknowledged there had been inconsistencies in what he had told the Tribunal and the Minister’s delegate and that it had been an extremely difficult process for him and he has suffered from mental health issues. He maintained that the main reason he fled Burkina Faso was because he feared for his life after he was captured, imprisoned and beaten by government officials after participating in protests organised by the student political group, Youth for Democracy Movement.

24. At the Tribunal hearing on 23 June 2023 the applicant stated he did not deny making the earlier statements about the murder of his family, but it could be explained by the language barrier and because he had PTSD and was in a confused state. In response to the Tribunal’s s 424A letter, the applicant relied upon the contents of his written statement dated 5 May 2023 and the Statement of Facts, Issues and Contentions dated 23 June 2023, maintaining that these set out his recollections of the events that led him to flee Burkina Faso. While he acknowledges providing inconsistent accounts of these events, he states that the key explanations for this are that he suffered (and continues to suffer) from PTSD which impacts on his memory, that his English skills were underdeveloped and he generally faced language barriers and that he was told different accounts, which he believed at the time, and that his genuine fear of harm in Burkina Faso creates a difficulty or reluctance to recount his traumatic experiences. He emphasises that his claims before this Tribunal are consistent with those made before the 2020 Tribunal prior to the current remittal.

25. I do not accept any of those explanations. The applicant did not suggest at the Tribunal hearing on 23 June 2023 that he had erroneously believed his family murdered for several years, even when the Tribunal reminded him of his earlier statement to that effect. Nor does the Tribunal accept that these claims arose because of a mistranslation or the applicant’s inability to speak English. As set out in the delegate’s decision, the applicant made his claims that his family members had been murdered throughout the 1997 protection visa application and review process. He was represented in these proceedings and participated with the assistance of a French interpreter.

26. Specifically he made those claims to have come home to find his family murdered in a statutory declaration dated 16 October 1997; at a Departmental interview (as set out in the delegate’s decision dated 29 January 1998); before the Refugee Review Tribunal (as set out in its decision dated 16 December 1999); and in a request for Ministerial Intervention dated 20 January 2000 (as recorded in the delegate’s decision dated 9 March 2020). As set out above, he also recounted that claim to each of [Dr D], [Dr C] and [Mr E]. I do not accept that the applicant’s poor English, confusion or any errors in interpretation can explain the incorrect information provided on each of those occasions, nor that his genuine fear of harm in Burkina Faso creates a difficulty or reluctance to recount his traumatic experiences.

1. Nor do I accept that the applicant’s diagnosed mental health conditions provide an explanation for the false claim that his family was murdered. In making that assessment I note [Dr F]’s evidence that PTSD commonly affects an individual’s verbal memory and is associated with impairments in an individual’s memories of the traumatic events and I accept that to be true. I further note [Mr E]’s observation that the applicant ‘appear[ed] to have trauma related memory problems, which [made] it difficult for him to give a consistent, chronological account of his persecution, trauma and subsequent flight from Burkina Faso’.

2. However the murder of his parents and siblings is not something that the applicant failed to remember or remembered differently on different occasions, rather it is an event that he described and repeated on multiple occasions between 1997 and 2000 which he now acknowledges never occurred. Having considered all of the explanations offered by the applicant, I conclude that he provided false information about the murder of his family in the 1997 visa application to bolster his claims for protection.

3. Secondly, the applicant made no mention in his 1997 protection visa application of the events that are now central to his claims, that is, his claimed detention for a period of some months by the Burkina Faso authorities immediately prior to his departure from that country, his father’s role in securing his release and his father’s subsequent detention and death. This is despite the fact that the first protection visa application took place far closer in time to those claimed events than the second visa application lodged more than 20 years later.

4. In his statutory declaration dated 16 October 1997 he described his claimed involvement in the Youth for Democracy Movement in detail, saying among other things that the security forces knew that he was involved in that movement for some time. He described arriving home after a particularly large meeting to find his parents and siblings killed and being told by a neighbour that the police had come looking for the applicant and killed his family when they couldn’t find him. He describes obtaining a small amount of money from the neighbour and hitchhiking for three days to the Ivory Coast before making his way to [Country 2].

100.   The Assessment of Protection Obligations dated 29 January 1998 discusses the applicant’s written claims and his claims at interview and does not record that the applicant claimed to have been detained for several months immediately prior to leaving Burkina Faso. The decision record of the Refugee Review Tribunal indicates that he recounted those events at length before the Tribunal, making no reference to being detained for several months by the authorities in Burkina Faso immediately prior to his departure, rather he stated that the security forces did not arrest him after the demonstration because they couldn’t find him:

[The Refugee Review Tribunal] asked why the security forces did not simply wait to arrest the applicant rather than murdering his family. The Applicant replied that the security forces could not arrest him in front of everybody at the demonstration and looked for him afterwards and could not find him.[8]

[8] Decision of the Refugee Review Tribunal N99/29110 at page 13

101.   In response to the Tribunal’s s 424A letter, the applicant relied upon the contents of his written statement dated 5 May 2023 and the Statement of Facts, Issues and Contentions dated 23 June 2023, maintaining that these set out his recollections of the events that led him to flee Burkina Faso. While he acknowledges providing inconsistent accounts of these events, he states that the key explanations for this are that he suffered (and continues to suffer) from PTSD which impacts on his memory that his English skills were underdeveloped and he generally faced language barriers and that he was told different accounts, which he believed at the time, and that his genuine fear of harm in Burkina Faso creates a difficulty or reluctance to recount his traumatic experiences. He emphasises that his claims before this Tribunal are consistent with those made before the 2020 Tribunal prior to the current remittal.

102.   I have taken into account the medical evidence indicating that the applicant suffers from PTSD and appears to have trauma-related memory problems. While that may explain some level of inconsistency, I do not consider that it can explain the fact that the applicant has given two entirely different versions of the events that he says led him to leave Burkina Faso. His evidence in 1997 that security forces did not arrest him after the demonstration because they looked for him but could not find him and so instead murdered his family is wholly inconsistent with his current claims that the security forces captured him on the way home from that demonstration and detained him for one to two months. Further, his evidence in 1997 that he fled Burkina Faso immediately after returning home from a protest to find his parents and siblings murdered cannot be reconciled with his evidence now that he fled Burkina Faso after being detained by the authorities for a period of some months after his release was secured by his father and supporters paying bribes.

103.   Thirdly, there are inconsistencies in the applicant’s claims that he was detained for a period of some months by the Burkina Faso authorities and then released after the payment of bribes immediately prior to his departure from that country. In the 2019 visa application the applicant claimed that he was imprisoned and tortured as a student activist for seven months. However in his written statement dated 5 May 2023, he stated that he was imprisoned along with other students for one to two months. When I discussed the apparent discrepancy between his statement in the visa application and his later written statement with the applicant at hearing, he stated that he was confused by dates but that to the best of his recollection he was detained for one to two months.

104.   Fourthly, there are inconsistencies in the applicant’s claims about his father’s political activities and his father’s death. In the 1997 protection visa application the applicant did not suggest that his father [Mr K] was involved in political activities in Burkina Faso, rather the applicant claimed his father was murdered by the authorities along with his mother and siblings in or about 1995 as a result of the applicant’s political activities.

105.   In the 2019 visa application, the applicant stated that after discovering the applicant had escaped from detention, the government looked for him but couldn’t find him and so captured his father and tortured him to death in 1996. However a death certificate issued by [the] Court in respect of the applicant’s father [Mr K] states that he died in Ouagadougou in 1995. When I put this to the applicant at hearing, he said he was confused by months and dates and that was the only way he could explain that situation. He gave evidence that his father was still alive at the time the applicant was detained by the Burkina Faso authorities.

106.   In response to the Tribunal’s s 424A letter, the applicant relied upon the contents of his written statement dated 5 May 2023 and the Statement of Facts, Issues and Contentions dated 23 June 2023, maintaining that the key explanations for any inconsistencies are his PTSD and underdeveloped English skills, that he was told different accounts, which he believed at the time, and that his genuine fear of harm in Burkina Faso creates a difficulty or reluctance to recount his traumatic experiences. He emphasises that his claims before this Tribunal are consistent with those made before the 2020 Tribunal prior to the current remittal.

107.   The Tribunal has considered the oral and documentary evidence of the applicant’s mother and brother as to their husband and father’s political activities as recounted above, as well as the written statement of [Mr L]. The Tribunal considers their evidence to be vague and lacking in detail as to the political beliefs and activities of the applicant’s father [Mr K]. On the evidence before it, the Tribunal does not accept the applicant’s father [Mr K] was involved in political activities in Burkina Faso, nor that he was targeted, detained or otherwise harmed by the Burkina Faso authorities. The Tribunal does not accept that the applicant’s father paid money to secure the applicant’s release from detention in Burkina Faso, nor that he died in detention or as the result of treatment inflicted upon him in detention.

108.   Fifthly, information contained on the Departmental file relating to the cancellation of the applicant’s partner visa includes the judge’s sentencing remarks made [in] December 2013 following the applicant’s conviction on one charge of importing a marketable quantity of [border-controlled drug]. In those sentencing remarks the judge relates aspects of the applicant’s personal history as set out by the barrister who appeared on his behalf. That personal history contains some level of detail, including that the applicant was born in Burkina Faso, that he was the eldest of [number] children and that his father was a [Occupation 2] and a [Occupation 3]. It records that the applicant came to Australia in 1997 via [Country 2] intending to study before meeting and marrying his wife. Those sentencing remarks note that he had difficulties obtaining permanent residency in Australia and had to leave the country and return. They record that the applicant and his wife had [number] children and his wife qualified as a [Occupation 4] and got a job in [Country 4] while he held a job in [Occupation 5] at [a workplace] in [Country 4]. The judge refers to mitigating matters put to the court including that the applicant was isolated in prison with no access to his children however neither his personal history nor the mitigating matters put to the court make any reference to his claimed imprisonment and torture in Burkina Faso, nor his father’s death at the hands of the authorities of that country.

109.   I have considered the applicant’s response to this point in the s 424A letter, in which he states that he does not have a copy of the transcript of hearing or outlines of submissions made to the sentencing judge prior to the court’s ruling [in] December 2013 and so he is unable to respond to this issue. The materials provided to the Tribunal by the Department contain only the sentencing remarks. However the Tribunal considers that if that court heard evidence or submissions as to the applicant’s claimed imprisonment and torture in Burkina Faso and his father’s death at the hands of the authorities of that country, those matters would have been referred to in the judge’s sentencing remarks. The fact that they were not is another reason the Tribunal doubts the credibility of his claims.

110.   Nor did the applicant make any mention of these issues when he applied for a Revocation of a Mandatory Visa Cancellation of his partner visa in 2017. In particular the delegate’s decision records that he did not respond to the question ‘Are there any other problems you would face if you have to return to your country of citizenship?’. The applicant acknowledges those matters in his response to the s 424A letter, but states that he raised them in his review of the delegate’s decision before the [General Division] of this Tribunal. The Tribunal accepts that the applicant raised matters broadly consistent with his protection claims before the General Division of this Tribunal when it was reviewing the decision to cancel his partner visa.

111.   However his failure to raise such significant matters before the court during his criminal sentencing or when seeking a revocation of his partner visa cancellation from the Department causes the Tribunal to further doubt that the applicant has a genuine fear of harm on return to Burkina Faso for reasons of his claimed imprisonment and torture in Burkina Faso, or his father’s death at the hands of the authorities of that country.

112.   Finally, the applicant’s Burkinabe passport was renewed in 2011 and the Tribunal considers this to be an indication the authorities in that country had no adverse interest in him. Given its grave concerns about the applicant’s credibility, the Tribunal does not accept the applicant’s explanation that his brother may have paid a bribe to have the passport issued.

113.   Having regard to all of the above matters, the Tribunal does not accept the applicant to be a witness of truth. The Tribunal does not accept the applicant was a student activist before his departure from Burkina Faso nor that he was arrested, detained, tortured or harmed by the Burkina Faso authorities prior to his departure from that country. The Tribunal does not accept that the applicant’s father [Mr K] was a political activist, nor that he was detained, tortured or otherwise harmed by the authorities in Burkina Faso. While the Tribunal accepts that [Mr K] died in 1995 as recorded in the death certificate, it does not accept that he died in detention or following his release from detention or as a result of violence perpetrated on him by the Burkina Faso authorities for reasons of the applicant’s political activities or his own political activities.

114.   As the Tribunal has not accepted that the applicant was involved in student political activities in Burkina Faso in 1995 or 1996, nor that he was detained or harmed or otherwise targeted by that country’s security agencies for that reason, the Tribunal does not accept that the authorities in Burkina Faso have ever visited or continue to visit the applicant’s mother or brother seeking information about the applicant or his whereabouts. Rather the Tribunal finds the Burkinabe authorities had no adverse interest in the applicant at the time he left Burkina Faso in the mid-1990s, nor at the time he renewed his passport in 2011.

115.   For these reasons the Tribunal does not accept there to be a real chance the applicant will face harm from the Burkina Faso authorities or any other person or group if he returns to that country for reasons of his purported political activities in Burkina Faso.

116.   In MIAC v SZQRB, the Full Federal Court held that 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.[9] For the same reasons the Tribunal does not accept there to be a real risk he will be subjected to significant harm by any person or group for reasons of his past political activities in Burkina Faso.

[9] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

Fear of harm relating to his mental health conditions

117.   For the reasons set out above, the Tribunal has accepted that the applicant suffers from PTSD with co-morbid depression. The Tribunal has accepted that he is currently receiving regular psychological counselling and phone calls from [Organisation 2] for mental health support and stress management. At hearing the applicant gave evidence that he was not currently taking any medication for his mental health conditions but that may be reassessed in the future and the Tribunal accepts that to be the case.

118.   DFAT’s Smartraveller report indicates that medical facilities in Burkina Faso are poor and emergency services very limited, especially outside of Ouagadougou.[10] The Tribunal accepts [Dr F]’s assessment that the applicant is unlikely to receive treatment for PTSD in Burkina Faso and if returned to that country his PTSD will likely become more severe.

[10] Burkina Faso Travel Advice & Safety | Smartraveller

119.   The Tribunal further accepts [Dr F]’s assessment that if the applicant’s treatment ceases, he will be at risk of developing personality changes with high levels of personal and social consequences, including difficulties finding employment, accessing support services and forming prosocial relationships. [Dr F] also assesses that without ongoing treatment the applicant will experience psychosocial difficulties due to the stigma attached to mental disorders in African countries.

1. Not all kinds of harm constitute ‘persecution’ for the purposes of the refugee assessment. Persecution must involve ‘serious harm’ as set out in s 5J(4)(b) and must also involve ‘systematic and discriminatory conduct’ as set out in s 5J(4)(c).

121.   In CSV15 v MIBP, the court held that:

the concepts of “persecution” and serious harm as detailed in s 91R of the Act indicated that the concern of Parliament is with acts perpetrated by others which cause the non-citizen to suffer harm. So much was also clear from s 91R(1)(c), which required systematic and discriminatory conduct. And although it is a non-exhaustive list of what constitutes “serious harm”, s 91R(2) of the Act included a list of actions that could be perpetrated against the non-citizen by another person.

Section 36(2)(a) is thus concerned with persecution of the non-citizen by other persons for Convention reasons, and it is not directed to whether a person suffers from an illness.[11]

[11] CSV15 v MIBP [2018] FCA 699; see also CHB16 v MIBP [2019] FCA 1089 and EZC18 v MHA [2019] FCA 2143

122.   While the court’s decision in that case concerns an older version of the legislative provisions concerning the definition of a refugee, the requirement that persecution involves systematic and discriminatory conduct is reproduced in the current legislation in s 5J(4)(c).

123.   The Tribunal accepts that some level of stigma may attach to people experiencing mental health conditions in Burkina Faso. However there is no information before the Tribunal that would suggest that persons with mental health conditions such as PTSD and depression are systematically and discriminatorily harmed or denied services by the Burkina Faso authorities or members of the Burkina Faso community.

124.   For these reasons the Tribunal does not accept there to be a real chance that the applicant would be subjected to harm by others if his treatment for PTSD and depression ceases on his return to Burkina Faso.

Complementary protection

125.   The Tribunal has accepted [Dr F]’s evidence that the applicant requires ongoing treatment for his PTSD and co-morbid depression and that treatment currently comprises psychological counselling and phone calls from [Organisation 2] for mental health support and stress management. The Tribunal accepts that if that treatment ceases, the applicant will be at risk of developing personality changes with high levels of personal and social consequences, including difficulties finding employment, accessing support services and forming prosocial relationships.

126.   In considering whether there is a real risk the applicant will be subjected to ‘significant harm’ for reason of his mental health conditions and cognitive impairment under the complementary protection criterion, s 36(2A) provides that 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.

127.   In relation to a person being ‘arbitrarily deprived of their life’, the Australian courts have held that s 36(2A)(a) is restricted to the risk of being deprived of life by the intentional or deliberate act or omission of a third person or persons.[12] The definitions of ‘cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ contained in s 5(1) of the Act each concern harm resulting from an act or omission where that harm is intentionally inflicted by other persons.

[12] EZC18 v MHA [2019] FCA 2143 at [47]; MZAAJ v MOI [2015] FCCA 151

128.   There is no information before the Tribunal that suggests the Burkina Faso authorities or members of the community would intentionally harm the applicant for reasons of his PTSD and depression such as might constitute torture, cruel or inhuman treatment or punishment or degrading treatment or punishment for the purposes of s 36(2A).

129.   The Tribunal accepts the applicant’s return to Burkina Faso will be both difficult and distressing for him given that he has not lived in that country for more than 25 years, that country experiences significant conflict and his [children] remain in Australia.

130.   The Australian courts have held that the definition of ‘significant harm’ is directed towards harm suffered because of the acts of other persons. In CSV v MIBP, the court held that:

Like s 36(2)(a), s 36(2A) does not encompass the harm the appellant claims she will suffer from depression if she returned to India, just as it does not cover the harm that a person would suffer as the result of any other illness arising on the return to the receiving country.[13]

[13]CSV15 v MIBP [2018] FCA 699

131.   In CHB16 v MIBP, the court agreed with the court’s conclusions in CSV v MIBP, stating:

66. In my view, these conclusions, with which I respectfully agree, apply with even more force to the conduct and harm described in s 36(2A) of the Act.

67. First, the language used in s 36(2A) of “depriv[ing]” or “subject[ing]” points to the involvement of others. Secondly, depriving a person of life, carrying out the death penalty, subjecting a person to torture or subjecting a person to treatment or punishment that is cruel or inhuman or degrading, are all acts that quintessentially require the involvement of another person or persons, usually an arm of government, or somebody with sufficient power or authority to perpetrate such acts. Thirdly, the protective purpose of the complementary protection provisions in s 36(2)(aa) suggests the involvement of persons against whose conduct such protection is necessary. . .

132.   The consequences of the applicant’s treatment ceasing as set out by [Dr F] arise as a natural consequence of his illness. The Tribunal has not accepted there to be a real chance that the applicant would be subjected to harm by others as a result of ceasing his treatment for PTSD and depression. As the ‘real risk’ test is the same as the ‘real chance’ test, I do not accept there to be a real risk that the applicant would be subjected to harm by others as a result of his PTSD and depression. For these reasons I do not accept that any harm the applicant would experience on return on account of his mental health conditions falls within the definition of significant harm contained in s 36(2A).

133.   For these reasons I do not accept there to be a real risk the applicant will be subjected to ‘significant harm’, as that term is exclusively defined in s 36(2A) of the Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burkina Faso.

Fear of harm because Burkina Faso is not a safe country

134.   The applicant claims that he is fearful of the widespread violence in Burkina Faso and he does not think he would be safe if returned to that country.

135.   The Tribunal has been referred to DFAT’s advice against travel to Burkina Faso due to ongoing civil unrest, high risk of terrorist attacks and kidnapping and banditry. The Tribunal has also been referred to a 2022 report from the US Department of State, which indicates that Burkina Faso experiences significant human rights issues including unlawful or arbitrary killings by security forces, militias and extremist groups and serious abuses in an internal conflict including widespread civilian harm. It reports that the government investigated and punished some cases of abuse, but that impunity for human rights abuses and corruption remained widespread.[14]

[14] Burkina Faso: at least 18 dead in restaurant attack | Burkina Faso | The Guardian

136.   A Wikipedia page submitted by the applicant indicates Burkina Faso had a population of just over 20 million in 2019. In a 1983 coup d’etat, Thomas Sankara became president and launched an ambitious socioeconomic programme before being overthrown and killed and in the 1987 coup d’etat led by Blaise Compaoré, who became president and remained head of state until being ousted in 2014.[15] During the protests that led to Blaise Compaoré being toppled, tens of thousands of people joined a mass rally in the capital and stormed parliament and other public buildings, setting fire to the parliament and forcing state television off the air.[16]

[15] Wikipedia entry as submitted by the applicant

[16] Burkina Faso protesters set parliament on fire, take over state TV and march on presidency (smh.com.au)

137.   The Tribunal has also been provided with a number of news media articles about jihadist attacks in Burkina Faso in recent years. The submissions of the applicant’s representative refer to two separate attacks by alleged jihadists in May 2023 which killed around 40 people. An ABC News report dated 5 June 2023 reports that violence linked to al-Qaida and Islamic State has made Burkina Faso a country with one of the fastest growing populations of internally displaced persons and states that the government retains control of less than 50% of the country, with Burkina Faso’s security forces killing at least 150 civilians in the north. An article in Le Monde dated 17 June 2023 reports that suspected jihadists had killed about a dozen villagers and wounded several more in Burkina Faso, noting that Burkina Faso is one of the poorest and most troubled countries in the world, struggling with a jihadist insurgency.[17]

[17] Applicant’s Statement of Issues, Facts and Contentions dated 20 June 2023

138.   Other news media articles provided by the applicant confirm that Islamic militants have conducted multiple deadly attacks in Burkina Faso in recent years. A BBC article dated 1 June 2020 reports that Burkina Faso, a predominantly Muslim country, was once relatively stable but has descended into serious unrest since 2015, with about 700 people killed and 560,000 displaced as jihadist groups step up attacks.[18] An attack on a hotel in the capital in January 2016 left 29 people of 18 nationalities dead, while another 150 hostages were freed by security forces.[19] In August 2017, at least 18 were killed in an attack on a restaurant in the capital. In December 2020, jihadists killed 35 civilians and the ensuing clashes with security forces left 80 jihadists dead.[20] At least 35 people were killed after separate attacks on a cattle market and a humanitarian convoy on the same weekend in June 2020.[21] At least 14 people were killed, including children, when a bus carrying students ran over an improvised explosive device in northern Burkina Faso in January 2020.[22] Eighteen civilians were killed by gunmen in northern Burkina Faso in February 2020.[23] Gunmen killed at least 24 people in an attack on a church during Sunday mass in north-western Burkina Faso in February 2020.[24]

[18] BBC Burkina Faso: Many People Killed in Suspected Jihadist Attack

[19] Burkina Faso hotel attack: 18 nationalities among dead | Burkina Faso | The Guardian

[20] Men in military uniforms kill 60 people in Burkina Faso - ABC News

[21] Attacks on Burkina Faso market and humanitarian convoy leave 35 dead as violence escalates - ABC News

[22] More than a dozen killed in Burkina Faso bus attack | News | Al Jazeera; 14 Killed in Bomb Attack on Bus Convoy in Burkina Faso - The New York Times (nytimes.com)

[23] More than a dozen civilians killed in latest Burkina Faso attack | News | Al Jazeera

[24] Gunmen Kill at Least 24 at Church in Burkina Faso - The New York Times (nytimes.com); Dozens killed in church attack in Burkina Faso | News | Al Jazeera

139.   In his written statement dated 5 May 2023, the applicant refers to other recent articles published about violence in Burkina Faso:

(a)On 30 September 2022, Al Jazeera published an article titled ‘Gunfire, blast jolt in Burkina Faso capital’. That article refers to speculation about a possible coup in the context of frustration within the military at a lack of progress in combating Islamist militants;[25]

[25] Gunshots and blast in Burkina Faso capital raise coup fears - World News (wionews.com)

(b)On 21 April 2023, Fox News published an article titled ‘Burkina Faso investigating security forces after 7 children allegedly killed on camera’ reporting on the government’s security forces killing children in the north of the country. That article refers to investigations into allegations of human rights abuses after a video surfaced that appeared to show the extrajudicial killing of seven children at a military base in the country’s north;[26]

[26] Burkina Faso investigating security forces after 7 children allegedly killed on camera | Fox News

(c)On 25 April 2023, ABC News published an article titled ‘Men in military uniforms kill 60 people in Burkina Faso’ reporting that at least 60 people had been killed by men in military uniforms in Yatenga province. The article reports that information about the killings was received on 21 April 2023 but it was unclear when they took place. It reports that jihadi fighters linked to Al Qaeda and Islamic State have waged a violent insurgency in Burkina Faso for seven years, killing thousands of people and displacing approximately two million;[27]

[27] Men in military uniforms kill 60 people in Burkina Faso - ABC News

(d)On 28 April 2023, Fox News published an article titled ‘Extremists kill 33 soldiers in latest Burkina Faso attack’ concerning the killing of 33 soldiers by Islamic extremists in the Gourma province;[28]

[28] Extremists kill 33 soldiers in latest Burkina Faso attack | Fox News

(e)On 30 April 2023, Al Jazeera published an article called ‘Survivors of “massacre” in Burkina Faso blame security forces’ reporting that 136 people, including women and infants, were killed in a recent massacre in Karma, along with another 11 people in nearby villages.[29] The same incident in Karma was also reported by France 24 under the title ‘Burkina Faso authorities under pressure after uniformed men massacre 150 villagers’.[30]

[29] Survivors of ‘massacre’ in Burkina Faso blame security forces | News | Al Jazeera

[30] Burkina Faso authorities under pressure after uniformed men massacre 150 villagers (france24.com)

140.   Broadly speaking the above country information reports that Burkina Faso is one of several West African nations struggling with a rebellion that has spread from neighbouring Mali over the past decade, killing thousands and displacing about two million people. Large parts of rural Burkina Faso remain outside the control of the military government which is trying to reclaim swathes of territory controlled by various armed groups. The media reports document recent killings by both Islamist extremist groups and in some cases persons suspected of being members of Burkina Faso’s security agencies in rural areas of Burkina Faso.

141.   The applicant is from Burkina Faso’s capital of Ouagadougou and his mother and siblings remain living in that city. The country information indicates that there is some level of risk to inhabitants of Burkina Faso in the context of the generalised violence and that risk is elevated in rural areas outside the control of the Burkina Faso government.

142.   However the country information before the Tribunal does not indicate that the capital of Ouagadougou is outside the control of the government, nor that attacks or killings by jihadist or other extremist groups occur in that city with such frequency as would create a real chance that the applicant would be harmed in such an attack. Rather on the basis of all of the information before it the Tribunal finds that risk is remote. For the same reasons the Tribunal does not accept there to be a real risk he will be subjected to significant harm by any person or group in the context of the generalised violence occurring in Burkina Faso.

Fear of harm as a Sunni Muslim

143.   I accept the applicant’s evidence that he is a Sunni Muslim. At hearing he gave evidence he feared harm as a Sunni Muslim because Islamic State is targeting Sunni Muslims in Burkina Faso. I discussed with him that Islamic State are a Sunni extremist group that are generally known for targeting Shia Muslims, rather than Sunni Muslims. The applicant stated that it was different in Burkina Faso and that Islamic State are primarily Shias who are targeting Sunni Muslims.

144.   I have carefully read the country information submitted to the Tribunal. Nothing in that country information indicates that Islamic State or any other extremist or jihadist group are targeting Sunni Muslims in Burkina Faso for reasons of their religious beliefs. For these reasons I do not accept there to be a real chance the applicant will face harm from Islamic State or any other person or group if he returns to Burkina Faso for reasons of his Sunni Muslim religion. For the same reasons the Tribunal does not accept there to be a real risk he will be subjected to significant harm by any person or group on return to Burkina Faso for reasons of his Sunni Muslim religion.

Fear of harm on basis of convictions in Australia and because of media articles published about his criminal offending

145.   The submissions of the applicant’s representative suggest that the applicant maintains a publicly accessible social media account in which he has advocated against the current government of Burkina Faso and that he fears harm because of the media articles about him and his online profile.

146.   The applicant claims that he is fearful of the widespread violence in the country and he does not think he would be safe if returned to Burkina Faso if the government became aware of his return given his history. In particular the applicant claims that a number of online news articles were published about him and named him, including:

(a)On [date], [Media 1] published an article titled ‘[Title 1]’.

(b)On [date], [Media 2] published an article titled ‘[Title 2]’.

147.   The Tribunal accepts that the applicant’s name has been disclosed in media reports about his criminal offending in Australia and those reports remain available on the internet, along with details of that offending and his [number]-year sentence. The Tribunal accepts that the news reports paint an adverse picture of the applicant’s character, reporting that he arranged a holiday to [Country 6] with his mother-in-law and then packed [number]kg of [border-controlled drug] into her luggage, blaming his mother-in-law for importing the drugs when they were discovered at Melbourne Airport. The articles suggest that the applicant used his mother-in-law to divert suspicion from himself and that he continued to attribute blame to his mother-in-law throughout the trial.

148.   The articles suggest that the applicant’s mother-in-law was questioned by the Australian Federal Police but not charged and that her daughter (the applicant’s former wife) was seeking a divorce from the applicant. The evidence before the Tribunal does not indicate the applicant is legally divorced, but the evidence before the Tribunal is that his former wife has resided in [Country 4] for a number of years and does not intend to return to Australia.

149.   There is nothing in the country information available to the Tribunal that would indicate that persons who commits criminal offences outside of Burkina Faso are targeted for harm by any person or group in Burkina Faso. On the evidence before it the Tribunal does not accept there to be a real chance that the applicant will suffer harm if returned to Burkina Faso on the basis of his criminal offending in Australia or the media reports of that offending. For the same reasons the Tribunal does not accept there to be a real risk he will be subjected to significant harm by any person or group on return to Burkina Faso for reasons of his criminal offending in Australia.

Fear of harm on the basis of [social media] profile

150.   The applicant claims he maintains an active [social media] account and has shared stories on his account, providing to the Tribunal a copy of a [social media] post dated [in] October 2022 in which he reposted [an] article titled ‘[Title 3]’ along with the comment ‘[comment redacted].’ The Tribunal accepts that this article and other similar articles are available on the applicant’s [social media] profile and that he has made comments critical of the Burkina Faso regime and terror attacks in that country.

151.   As noted above, the applicant has provided numerous published media reports to the Department and the Tribunal about events in Burkina Faso. There is nothing in the country information available to the Tribunal that would indicate that such reports are censored or not freely available in Burkina Faso, nor that any person who re-posts or discusses such news reports is targeted by any person or group in Burkina Faso. On the evidence before it the Tribunal does not accept there to be a real chance that the applicant will suffer harm if returned to Burkina Faso on the basis of his [social media] posts or online profile. For the same reasons the Tribunal does not accept there to be a real risk he will be subjected to significant harm by any person or group on return to Burkina Faso for reasons of his [social media] posts or online profile.

Fear of harm as a failed asylum seeker and returnee from Australia

152.   I accept the applicant will return to Burkina Faso from Australia after an absence from Burkina Faso of approximately 27 years. I accept that in the process of his return to Burkina Faso, it is possible that the fact that he has made claims for asylum while in Australia may become known to the Burkina Faso authorities.

153.   There is nothing in the country information provided to the Tribunal that would indicate that such persons are targeted by any person or group in Burkina Faso, either because they have claimed asylum or resided in a western country or been absent from Burkina Faso for a long period or a combination of those factors. On the evidence before it the Tribunal does not accept there to be a real chance that the applicant will suffer harm on the basis of his membership of the particular social groups ‘returnees from a western country’, ‘returnees who have not lived in Burkina Faso in many years’ and ‘failed asylum seekers returning from a western country’.

Cumulative assessment

154.   I have accepted that the applicant is a [age]-year-old male of Sunni Muslim religion who suffers from PTSD and co-morbid depression who will return to Burkina Faso as a failed asylum seeker from a western country after an absence of approximately 27 years. I have accepted that the applicant has been convicted of a criminal offence in Australia, the details of which are available on the internet. I have also accepted that he has shared stories about Burkina Faso’s political situation on [social media] and that he has made comments critical of the Burkina Faso regime and terror attacks in that country. In light of these findings, I have considered whether the cumulative effect of such characteristics may result in a real chance that the applicant will be targeted for harm in Burkina Faso by the Burkina Faso authorities or any person or group if he returns to that country, now or in the foreseeable future.

155.   Given the Tribunal’s findings above, and having regard to the country information to which the Tribunal has been referred, I do not accept there to be a real chance that the applicant will be targeted for harm on return to Burkina Faso by the Burkina Faso authorities or any other group or person on the separate or cumulative bases of his religion, his actual or imputed political opinion, his mental health conditions of PTSD and co-morbid depression, his criminal conviction and online profile and the fact he would be returning from a western country as a failed asylum seeker who has been absent from Burkina Faso for 27 years.

CONCLUSIONS

156.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).

   DECISION

159.   The Tribunal affirms the decision not to grant the applicant a protection visa.

Alison Murphy
Member

ATTACHMENT – Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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