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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2213906 (Refugee)

Details

AGLC: 2213906 (Refugee) [2023] AATA 4164
Case: [2023] AATA 4164
Decision Date: 7 September 2023

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a male national of Burkina Faso. The applicant had a history of visa applications in Australia dating back to 1997, including a previous protection visa refusal affirmed by the former Refugee Review Tribunal. Following his departure from Australia in 2001 and return in 2011 on a partner visa, his partner visa was cancelled due to a criminal conviction for importing a border-controlled drug. The applicant subsequently lodged the current protection visa application on 22 August 2019. The review was conducted by a delegate of the Minister.

The primary legal issues before the delegate were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth) (the Act), which requires Australia to have protection obligations because the person is a refugee, or under section 36(2)(aa) of the Act, which relates to complementary protection where there is a real risk of significant harm upon removal from Australia. The delegate was required to assess the applicant's claims of being targeted by the Burkina Faso government for his involvement in anti-government protest activities with the Youth for Democracy Movement in 1996, and to consider any potential for significant harm if returned to Burkina Faso.

The delegate's reasoning focused significantly on the credibility of the applicant's claims, noting substantial inconsistencies between his 1997 protection visa application and his 2019 application. Specifically, the delegate highlighted a significant divergence in the applicant's account of his family's fate and his own alleged imprisonment. In 1997, the applicant claimed his family was murdered by authorities searching for him, and he fled immediately after a protest. In 2019, he claimed he was imprisoned after being captured on his way home from a protest, later released after his father bribed officials, and then fled. The delegate found these discrepancies, along with other inconsistencies in the applicant's evidence, undermined his credibility. The delegate also noted the applicant's criminal conviction in Australia and a prior jail sentence in another country for illegal entry.

Ultimately, the delegate concluded that the applicant did not satisfy the criteria for a protection visa under either the refugee or complementary protection grounds. There was no suggestion that the applicant qualified as a member of the family unit of a person who met these criteria. Accordingly, the delegate affirmed the decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant was represented in the review and counsel appeared for the applicant at both Tribunal hearings.BACKGROUND 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. 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 Following the cancellation of the partner visa, the applicant applied for the protection visa on 22 August 2019. CRITERIA FOR A PROTECTION VISA The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b). Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.

Evidence

Evidence Before The Court

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 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 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. 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. 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. 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 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. 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 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 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. 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. 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. 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