BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1186
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1186
File number(s): MLG 124 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 14 December 2023 Catchwords: MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – whether the Tribunal failed to give genuine or proper consideration to the evidence put before it – whether the Tribunal failed to consider or misapplied evidence put before it – found no jurisdictional error on behalf of the Tribunal. Legislation: Migration Act 1958 (Cth) ss 5(1), 5H, 5J, 36(1A), 36(2)(a), 36(2)(aa), 36(2A) 189(1), 424A, 474, 476, 501(3A)
Migration Regulations 1994 (Cth) Sch 2
Cases cited: AFD21 v Minister for Home Affairs (2021) 287 FCR 308
Craig v South Australia (1995) 184 CLR 163
CRU18 v Minister for Home Affairs (2020) 277 FCR 493
Hossain v Minster for Immigration and Border Protection [2018] HCA 34
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZMTA(2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
NAHI v MIMIA [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405
Division: Division 2 General Federal Law Number of paragraphs: 116 Date of hearing: 13 October 2023 Place: Melbourne Counsel for the Applicant: Mr Boyd-Caine Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 124 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BYW22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
14 December 2023
THE COURT ORDERS THAT:
1.The Amended Application filed 8 August 2023 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 8 August 2023, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 3 January 2023. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (Class XA) (Subclass 866) visa (visa).
CONTEXT
The applicant was born in Burundi on 25 December 1983.
Sometime in 1993, at around the age of 10, the applicant has a vague memory of people coming to his home with machetes and knives and recalls hearing screaming and thinking that his parents were being killed. The applicant fled Burundi on foot to Tanzania where he lived in a refugee camp until 2005.
The applicant was granted refugee status by the United Nations High Commissioner for Refugees (UNHCR), and subsequently travelled to Australia on 19 August 2005 on a Refugee (Class XB) (Subclass 200) visa.
On 12 April 2018, the applicant was convicted of unlawful sexual intercourse with a person under 17 years. The applicant received a total effective sentence of two and a half years imprisonment, with a fixed non-parole period of 12 months.
As a consequence of his conviction, on 6 September 2018 the applicant’s Refugee visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Act). The applicant became an unlawful non-citizen.
On 24 September 2018 the applicant applied for revocation of the Refugee visa cancellation, which was refused on 30 November 2021.
On 25 July 2019 the applicant was detained under s 189(1) of the Act upon release from criminal custody.
On 25 May 2022 the applicant applied for a Protection (Class XA) (Subclass 866) visa (Visa).
The applicant’s claims were set out in his Visa application. Relevantly, the applicant claimed that:
(1)It is not safe in Burundi, and he will not survive.
(2)He does not know anyone in Burundi who could offer him support and he is not in contact with anyone in that country as he has not been there since he was very young, about 30 years ago.
(3)When he fled Burundi there was so much killing, and he was scared that the people who he believed attacked his family would kill him too.
(4)In Burundi there is ongoing chaos and killing and he is scared to return as going back would cause him more trauma and he would not get any help for that trauma in Burundi.
(5)If he was sent back to Burundi, he would not have anywhere to live and does not know anything of the country. He would be going back with no money, no one to turn to, no job and does not know what he would do or how he would survive in Burundi.
(6)His representative has shown him reports that indicate Burundi is still subject to violence and killings, that there is a youth militia who target returning refugees and people who will not support them. As he would be a returning refugee who would not support any group who kill people, he would be at risk from the youth militia.
(7)Not knowing anyone in Burundi who he could trust would make is more dangerous for him. Returning after such a long time away from the country, people would find out that he had been in Australia and his representative explained to him that there is a lot of crime and kidnapping in Burundi as it is a poor country. His representative also told him that people who are thought to be foreigners or who are seen to have money are more likely to be targeted by these criminal groups and this is another danger to him.
(8)He also understands that when you are sick in Burundi you die because they do not have good health systems and with coronavirus being a problem this is another reason he fears for his life if he was forced to return.
On 17 August 2022 the delegate of the Minister refused to grant the applicant the Visa.
On 19 August 2022, the applicant applied to the Tribunal for review of the delegate’s decision. In the application for review, the applicant appointed a representative and authorised recipient for correspondence.
On 12 October 2022 the Tribunal email the applicant’s representative an invitation to comment, pursuant to s 424A of the Act.
On 21 October 2022 the applicant’s representative replied to the Tribunal’s s 424A letter in which they provided the applicant’s statement in response which provided his personal background identifying his mixed ethnicity of Hutu and Tutsi, his recollection of his escape from Burundi as a child which is consistent with his application and his reasons as to why Burundi is not a safe place for him. Such reasons were identified as:
·him being of mixed ethnicity;
·having fled Burundi during the civil war;
·having spent a lot of time in a developed country;
·him being perceived as having a significant amount of money;
·him not knowing how to survive in Burundi;
·being perceived as a threat to the authorities in Burundi;
·him having been convicted of criminal offences in Australia; and
·him needing specialist mental health care.
On 28 October 2022, the Tribunal emailed the applicant’s representative inviting the applicant to attend a video conference hearing on 21 November 2022 at 10.00am (Christmas Island time). The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 8 November 2022 the applicant, through his representative, provided a hearing response to the Tribunal which attached a statutory declaration of the applicant’s brother. The statutory declaration declared, among other things, the following:
(a)the applicant and his brother’s parents were from different ethnic tribes; their mother was Tutsi and their faither was Hutu;
(b)they were therefore of mixed ethnicity and this had always been an issue in Burundi;
(c)if the applicant returned to Burundi he would be killed because of his mixed ethnicity;
(d)it is possible local people would presume the applicant had accumulated a lot of money and they would kill him for his possessions and assumed money; and
(e)the people who had killed their parents and family are possibly still in Burundi and if the applicant returned, he could be discovered by those people and then killed by them.
On 18 November 2022 the applicant’s representative provided the Tribunal with a pre-hearing submission (18 November Submission). The 18 November Submission submitted that the applicant was of mixed Hutu-Tutsi ethnicity and that Australia’s protection obligations are enlivened because of the applicant’s mixed ethnicity. The 18 November Submission submitted that the applicant has a well-founded fear of persecution because he fears suffering serious harm for reasons of:
·ethnicity (race);
·membership of a particular social group (being those particular social groups previously identified in the applicant’s statements and prior submissions); and
·imputed political opinion (the applicant’s ethnicity puts him at risk of having political opinions imputed to him and his personal characteristics are not such as can be modified to avoid a real chance of persecution).
Paragraph [14] of the 18 November Submission drew the Tribunal’s attention to the Resettlement Registration Form (UN Resettlement Form) that was completed by the UNHCR in 2005 in which the applicant’s ethnicity is described as “Hutu mixed”. Paragraphs [16], [17], [24], [25], [26] and [27] of the 18 November Submission address the contents of the Resettlement Form in the context of the applicant’s ethnicity.
The Resettlement Form was attached to the 18 November Submission. The applicant also provided the following documents which were footnoted in the 18 November Submission: Office of the United Nations High Commissioner for Human Rights, Report of the Commission of Inquiry on Human Rights in Burundi, UN Doc A/HRC/487/68 (12 August 2021, release date 16 September 2021) and the Implementation of the Peace, Security and Cooperation Framework for the Democratic Republic of the Congo and the Region – Report of the Secretary General, Un Doc s/2022/276 (30 March 2022).
On 21 November 2022, the applicant appeared before the Tribunal to give evidence and present arguments via video link from Christmas Island detention centre with the assistance of an interpreter in the Kinyarwanda and English languages. The Tribunal also received oral evidence from the applicant’s brother. The applicant was represented at the hearing.
On 3 January 2023, the Tribunal affirmed the decision not to grant the applicant the Visa.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 3 January 2023 (Tribunal Decision).
At paragraph [13] of the Tribunal Decision, the Tribunal summarised the applicant’s migration history and at paragraph [15] the Tribunal summarised the applicant’s claims for protection, as outlined above at paragraph [10]. At paragraphs [16] – [26] the Tribunal set out the applicant’s evidence in support of his claims and at paragraphs [27] – [37] the Tribunal set out country information regarding political expression and violence in Burundi, the ruling youth militia “Imbonerakure”, violence as a result of tensions between the Tutsis and the Hutus ethnic groups, repatriation of returnees and the issue of mixed ethnicity in Burundi.
The Tribunal made a number of findings at [50] accepting the applicant’s evidence, relevantly, that the applicant has a limited recollection of the events that caused him and his brother to flee Burundi as a result of the attack on his family when he was about 10 years old, and accepted the information contained in the visa application and other material as to his subsequent life in the Tanzanian refugee camp and resettlement in Australia.
Given the passage of time and the applicant’s evidence that he did not have any recent connection or contact with anyone in Burundi after the civil war, the Tribunal found that the applicant’s fears/claims are not well-founded and that he does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Accordingly, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act.
As to the complimentary protection grounds in s 36(2)(aa) of the Act, for the same reasons the Tribunal was not satisfied that the applicant met the refugee criterion, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Burundi, that there is a real risk that he would suffer significant harm as defined in s 36(2A).
For completeness, the Tribunal noted that there was no suggestion that the applicant satisfied s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfied ss 36(2)(a) or (aa) of the Act and who holds a protection visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 27 January 2023. The applicant was self-represented at the time of filing this Application.
The applicant became legally represented on 14 June 2023.
In accordance with the Orders made 27 February 2023, the applicant filed an Amended Application on 8 August 2023.
The Amended Application contains the following grounds for judicial review (without amendment):
1.The Tribunal failed to give consideration of the requisite quality to certain claims made by the Applicant, which were the subject of substantial and clearly articulate arguments, or which clearly emerged on the materials before the Tribunal.
Particulars
a.The Applicant clearly identified independent country information supporting the claim that people considered to be of ‘mixed ethnicity’ faced greater risks of persecution within Burundian society (CB 630, 634-636).
b.The Tribunal failed to deal with the submissions put by the Applicant concerning ‘mixed ethnicity’, in particular the evidence contained in the United Nations High Commissioner for Refugees Registration Form (CB 630-641). In doing so, it failed to engage in the required consideration (i.e. it ignored, misunderstood, or overlooked the independent country information supporting the proposition that the category of ‘mixed ethnicity’ Burundians exists).
c.Such an error was material, and gives rise to jurisdictional error, because there is the possibility that if the Tribunal had truly engaged in the required level of consideration concerning the ‘mixed ethnicity’ claim, it could have come to a different conclusion.
2.The Tribunal misapplied the evidence relating to claims made by the Applicant, which were the subject of substantial and clearly articulate arguments, or which clearly emerged on the materials before the Tribunal.
Particulars
a.The Tribunal elevated one aspect of the independent country information to support the finding that ethnicity in Burundian society was determined patrilineally.
b.However, when read in context, the relevant aspect of that evidence clearly indicated that ethnicity following patrilineal lineage was an aspect of historical, rather than current, Burundian society.
c.The failure by the Tribunal to consider the evidence within its full and proper context resulted in error, as the Tribunal’s reasons do not disclose an engagement with the materials as they are.
d.Such an error was material, and gives rise to jurisdictional error, because there is the possibility that if the Tribunal had truly engaged in the required level of consideration concerning independent country information in its full context, it could have come to a different conclusion.
3.The Tribunal failed to give consideration of the requisite quality to certain claims made by the Applicant, which were the subject of substantial and clearly articulate arguments, or which clearly emerged on the materials before the Tribunal.
Particulars
a.The Tribunal determined that the Applicant provided ‘no evidence’ as to how perceptions of him as a ‘wealthy westerner’ would result in a risk of persecution (CB 740).
b.In the material before the Tribunal, the Applicant made reference to, and relied upon, information provided by the United Nations Human Rights Council Commission of Inquiry on Burundi, which identified witness accounts of returning refugees being targeted based on a perception that they had wealth, as a result of having lived outside of Burundi (CB 85).
c.The Tribunal therefore failed to deal with the submissions put by the Applicant concerning his belonging to the social group of returned westerners perceived to be wealthy, and the risks that attach specifically to that group.
d.Such an error was material, and gives rise to jurisdictional error, because there is the possibility that if the Tribunal had truly engaged in the required level of consideration concerning the ‘wealthy westerners’ claim, it could have come to a different conclusion.
4.The Tribunal failed to give consideration of the requisite quality to certain claims made by the Applicant, which were the subject of substantial and clearly articulate arguments, or which clearly emerged on the materials before the Tribunal.
Particulars
a.The Tribunal determined that the Applicant provided ‘no evidence’ as to how perceptions of him as a ‘foreign criminal’ would result in a risk of persecution (CB 741-742).
b.In the material before the Tribunal, the Applicant made reference to, and relied upon, information provided by the United Nations Human Rights Council Commission of Inquiry on Burundi, which identified instances of the youth wing of the ruling party, the Imbonerakure, having engaged in extra-judicial killing on the basis of accusations of criminal activity.
c.Such extra-judicial killing, on the basis of accusations, provides independent support for the risk identified by the Applicant, should his past criminal history be discovered.
d.Such an error was material, and gives rise to jurisdictional error, because there is the possibility that if the Tribunal had truly engaged in the required level of consideration concerning the ‘foreign criminal’ claim, it could have come to a different conclusion.
The applicant filed the following further relevant material:
(1)affidavit of the applicant filed 27 January 2023, annexing the Tribunal’s decision;
(2)written submissions of the applicant filed 8 August 2023; and
(3)affidavit of the solicitor for the applicant filed 8 August 2023, annexing an article titled “Burundi: treatment of people born of mixed Hutu-Tutsi couples by members of these two groups; state protection” published by the Federal Court of Appeal in Canada on 7 February 2018.
The Minister filed a Response on 24 February 2023. The Response contained the following grounds:
1.The application invites the Court to undertake a review of the merits of the Tribunal’s decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC 10 at [10].
2.The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 3 January 2023.
The Minister also filed amended written submissions on 22 August 2023.
The Hearing
The hearing took place on 13 October 2023. The applicant was represented at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Relevant statutory framework
The criteria for a protection visa are set out in s 36 of the Act and schedule 2 of the Migration Regulations 1994 (Cth). In summary, and as presently relevant, the applicant must be a person in respect of whom Australia has protection obligations as a refugee or on other “complementary protection” grounds.
The presently relevant provisions of the Act are set out below.
Section 36(1A) of the Act provides as follows:
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2)
Section 36(2), relevantly, provides as follows:
(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 mention 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;
(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.
Torture, cruel or inhumane treatment or punishment, and degrading treatment or punishment are defined in s 5(1) of the Act.
The meaning of refugee is set out in s 5H of the Act. Relevantly, s 5H(1)(a) provides that a person is a refugee if:
(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:
(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;
The meaning of well-founded fear of prosecution is set out in s 5J of the Act, relevantly, as follows:
(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.
(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;
(d)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Jurisdictional error for “failure to consider”
Before turning to the grounds, it is necessary to consider the principles concerning the “failure to consider” ground of judicial review. Each of the grounds submitted by the applicant for judicial review alleges the Tribunal erred on the basis of a failure to give genuine or proper consideration to the evidence put before it. In oral submissions the applicant submitted that the Tribunal erred in the manner in which it undertook its task.
In relation to the use of phrases such as genuine and proper consideration the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1) at [26] said:
Labels like "active intellectual process" and "proper, genuine and realistic consideration" must be understood in their proper context. These formulas have the danger of creating "a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision‑maker's] decision can be scrutinised". That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd "[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind". The court does not substitute its decision for that of an administrative decision-maker. (foot notes omitted)
As to how representations are to be considered, the High Court in Plaintiff M1 said at [24]:
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a former visa holder. (foot notes omitted)
As also identified by the High Court in Plaintiff M1 at [27], none of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker's reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
The Tribunal is not required to give a line by line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 74 ALJR 405 at [65].
Finally, there is a distinction between the omission of a matter from the Tribunal’s reasons as indicating the Tribunal did not consider the matter material, and that omission indicating the Tribunal did not consider the matter at all: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [31] per French CJ and Kiefel (Heydon and Crennan JJ agreeing).
Ground 1
Applicant’s submissions
By Ground 1 the applicant submits that the Tribunal failed to give genuine or proper consideration to the evidence put before it in relation to the question of the applicant’s mixed ethnicity. Specifically, the applicant submits that the Tribunal failed to consider the UN Resettlement Form which the applicant had provided, and made submissions about, to the Tribunal.
The applicant submits that in determining the applicant’s claim based on mixed ethnicity, the Tribunal relied on a report from the Canadian Immigration and Refugee Board, “Treatment of people born of mixed Hutu-Tutsi couples by members of these two groups: state protection (2016-January 2018)” (Canadian Report) to determine that Burundian society treats ethnicity as patrilineal. The applicant submits that absent from the evidentiary analysis undertaken by the Tribunal was any consideration of the UN Resettlement Form, which articulates the basis upon which the applicant’s claim to refugee status was accepted by the UNHCR. The applicant submits that the Tribunal identified the Canadian Report as preferable to the UN Resettlement Form on the basis that it provided “independent country information”. The applicant submits that the UN Resettlement Form provides similarly “independent country information” as it has come from a decision of the UNHCR rather than simply a record of the applicant’s belief.
In their written submissions the applicant submits that in failing to consider the UN Resettlement Form and the independent country information contained therein, the Tribunal erred by failing to give genuine consideration to the significant representations and evidence advanced by the applicant as to why the decision not to grant the visa should be revoked. However, in oral submissions the applicant submitted that the Tribunal was required to consider all of the applicant’s representations and evidence and in failing to consider the UN Resettlement Form, the Tribunal erred. Further, the Tribunal had two pieces of contradictory evidence before it and failed to engage in any evaluative process.
The applicant relies on AFD21 v Minister for Home Affairs (2021) 287 FCR 308 (ADF21) and Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS).
Minister’s submissions
The Minister concedes that the Tribunal does not expressly refer to the UN Resettlement Form. The Minister submits, however, that the obvious explanation for this is that the Tribunal considered another person’s opinion to the risks facing the applicant as immaterial, or irrelevant to, its own assessment as to the risks facing the applicant. The Minister submits that this is particularly so in circumstances where the UN Resettlement Form was made some 18 years earlier and made on different and less fulsome information than that available to the Tribunal. Accordingly, it is submitted that the Court should infer that the Tribunal did not expressly refer to the UN Resettlement Form because it did not consider it material to its findings of fact.
The Minister submits that the Tribunal did not overlook the UN Resettlement Form, as evidenced by the Tribunal’s consideration of the applicant’s submissions of 18 November 2022, which referred to the UN Resettlement Form. The Minister submits it is improbable that the Tribunal read the 18 November 2022 submissions and the country information referred to in those submissions, but somehow completely overlooked the UN Resettlement Form and the submissions made in relation to that document.
It is further submitted by the Minister that the UN Resettlement Form is not of itself “independent country information”, but rather was an assessment made about the applicant by the UNHCR. As such, the Minister submits that the current matter can be distinguished from MZYTS, as in that case, the material not considered by the Tribunal was “more recent country information”, whereas here, the “information” “not considered” by the Tribunal was some 18 years old. Further, the Minister submits that ADF21 does not assist the applicant and must now be read in light of the High Court’s comments in Plaintiff M1.
Consideration - Ground 1
At paragraph [60]-[62] the Tribunal considers the applicant’s claims based on mixed ethnicity and the evidence of the applicant and his brother as to this. At paragraph [62] the Tribunal concluded as follows:
The Tribunal having considered the relevant country information as to the issue of ethnicity as outlined above at paragraph 32, and the applicant’s brother’s evidence that he was recognised as Hutu when he was in Burundi is not satisfied that the applicant would be viewed as being of mixed ethnicity if he returned to Burundi. The Tribunal prefers the independent country information and finds that the applicant would be viewed as being Hutu if he were to return to Burundi. The Tribunal in this regard is not satisfied that the applicant faces a real chance of persecution involving serious harm as a result of him being identified as being a member of a particular social group, that being of mixed ethnicity. The Tribunal does not accept that there is such a particular social group given the patriarchal societal views in Burundi. The Tribunal finds that the applicant does not in the reasonably foreseeable future face a risk of persecution involving serious harm for his supposed membership of the particular social group members of mixed ethnicity and Burundi. The applicant fears of harm in regard to this claim are not well-founded.
It is uncontested that the country information contained in paragraph [32] and referred to paragraph [62] above is the Canadian Report.
It is clear that in reaching its conclusion in paragraph [62] the Tribunal does not refer to the UN Resettlement Form.
For the following reasons, I reject the submission that the Tribunal failed to consider the UN Resettlement Form, notwithstanding that it is not expressly referred to in the Tribunal’s decision.
As set out above, the UN Resettlement Form was provided to the Tribunal with the 18 November Submissions.
Paragraph [5] of the 18 November Submissions provides as follows:
Rather than repeat the previously submitted information generally, our present submissions shall focus on narrower, more specific, aspects of the application, namely:
a) establishing [the applicant’s] mixed Hutu-Tutsi ethnicity;
b)grounds for finding that Australia’s protection obligations are enlivened because of [the applicant’s] mixed Hutu-Tutsi ethnicity.
Paragraphs [14]-[17] of the 18 November Submissions expressly refer to the contents of the UN Resettlement Form and the applicant’s mixed ethnicity. The 18 November Submissions expressly refer to the applicant’s ethnicity being identified as “Hutu-mixed” on page 1 of the UN Resettlement Form and extracts the following comments included in paragraph 12 on page 5 of the UN Resettlement Form:
[The applicant] is a 21 year old Burundian man of mixed ethnicity … [The applicant’s] father was Hutu and his mother was Tutsi.
…
[The applicant] and his family were one of the first families attacked in their area,
possibly because of their mixed ethnicity.
Paragraphs [24]-[29] of the 18 November Submissions also expressly refer to the contents of the UN Resettlement Form and the risk of past harm to the applicant based on his mixed ethnicity. At paragraph [24] of the 18 November Submissions the applicant refers to and extracts the following passage included at paragraph 12 on page 7 of the UN Resettlement Form, where it says under the heading “Flight from Burundi”:
[The applicant] and his family were one of the first families attacked in their area, possibly because of their mixed ethnicity. In October 1993, [The applicant] was living with [sic] in a house with his parents and siblings. [The applicant] and his surviving brother slept near a window opposite where his parents slept. Some people came in the middle of the night and set [The applicant] house on fire. One of them was Bilama,15 a Tutsi who had given the family problems before. They attacked the family because the father was Hutu. The fire was started opposite where [The applicant] and his brother were. The brothers managed to jump out of the window and run away. The attackers tried to chase the brothers. Both brothers managed to escape, but they became separated from each other. The attackers then barred the window so no one else could escape. The remainder of [The applicant’s] family was burned to death in the house. [The applicant] fears that if he and his brother return they will face a similar future. [The applicant] managed to flee to Tanzania on his own. [The applicant] was not registered as a refugee right away. He was taken in by a Tanzanian family in Muhange he [sic] looked after him and used him as a houseboy until 1998.16 In 1998 he was picked up by immigration and taken to Kanembwa refugee camp. From there he was taken to Mkugwa and was reunited with his brother.
At paragraph [25] of the 18 November Submissions the applicant refers to and extracts the following passage contained in paragraph 12 of the UN Resettlement Form under the heading “Well founded fear of prosecution”:
In UNHCR’s view, [the applicant] has good grounds under the 1951 [Refugees] Convention owing to a well-founded fear of persecution due to his race/nationality because of his mixed ethnicity or due to his membership of a particular social group (those of mixed Hutu-Tutsi ethnicity). In 1993, [the applicant] and his family were targeted for death by militants who chose their targets based upon ethnicity.
At paragraph [26] of the 18 November Submissions the applicant refers to and extracts the following passage contained in paragraph 12 of the UN Resettlement Form also under the heading “Well founded fear of prosecution”;
[The applicant] claims that he still fears to return to Burundi. While UNHCR is facilitating voluntary repatriation for Burundians, UNHCR recognises that the situation in Burundi remains violent and unstable and that it is not a solution for all Burundians. Burundians and Burundian families of mixed ethnicity may feel particularly at risk as, historically, these Burundians have often been the first targets when order has broken down.
At paragraphs [25] – [26] of its decision, the Tribunal refers to the 18 November Submissions and sets out those submissions in some detail. As set out above, those submissions not only attached the UN Resettlement Form but extracted in the body of the submissions extracts from the UN Resettlement Form. The Tribunal notes in its decision that those submissions made a new claim, being the applicant’s “mixed Hutu-Tutsi ethnicity”. The Tribunal also notes that the submission advances that the applicant has a well-founded fear of prosecution because he fears suffering serious harm for reasons of his ethnicity if he were returned to Burundi. The Tribunal then refers to two additional documents which were footnoted in the 18 November Submissions and provided to the Tribunal by the applicant.
In light of paragraphs [25]-[26] of the Tribunal’s decision, I consider it clear that the Tribunal read, understood and considered the 18 November Submissions and the applicant’s claims therein. In those circumstances, I consider it improbable that in so doing the Tribunal overlooked or failed to consider the UN Resettlement Form, noting that it was attached to the 18 November Submissions and that a number of passages from it were extracted in the body of the submissions. Further, I also note that the Tribunal’s decision demonstrates that it was cognisant that the applicant had involvement with the UNHRC in 2005, noting:
·the applicant’s evidence that “on 8 August 2005 after being resettled in Australia as a refugee with the assistance of the United Nations.”;
·that the applicant was granted a refugee (Class XB, Subclass 200) visa on 24 May 2005; and
·that the Tribunal accepted the applicant’s claims regarding the killing of his family, saying at [50]:
In that regard the Tribunal accepts the evidence of the applicant and the information contained in the visa application and his other material presented to the Tribunal as to his subsequent life in the Tanzanian refugee camp and his subsequent resettlement in Australia… (emphasis added)
In light of all of the above, I consider the better inference to be that the Tribunal did consider the UN Resettlement Form and the information contained therein but did not refer to it as it did not consider it material. Firstly, the UN Resettlement Form is dated 11 May 2005 and was therefore created some 18 years earlier. This is to be contrasted with the Canadian Report which is dated 7 February 2018. In the Canadian Report the Tribunal therefore had before it considerably more contemporaneous and fulsome country information than that which was contained in the UN Resettlement Form. Secondly, I do not consider that the UN Resettlement Form is, properly considered, “independent country information” as asserted by the applicant. Neither party drew my attention to any relevant case law as to what constitutes independent country information. The UN Resettlement Form contains information at paragraph 12 under the heading “Historical Background” which extracts material from the Human Rights Watch Report into Burundi in 1994 (HRW Report). It also contains information in paragraph 13 under the heading “Voluntary Repatriation” about the political and security situation in Burundi at that time. I accept that this information, most particularly the material extracted from the HRW Report, may constitute independent country information. However, in my view, the remainder of the UN Resettlement Form is opinion, based on the UNHCR assessment of the applicant, as to the risks facing the applicant at that time. It is not a report into the country conditions in Burundi. I therefore accept the Minister’ submission that the “obvious explanation” for the absence of any express reference to the UN Resettlement Form is that the Tribunal considered that another person’s opinion as to the risks facing the applicant was immaterial, or irrelevant to, its own assessment as to the risks facing the applicant.
As to the applicant’s reliance on MZYTS, for the reasons set out above, I do not consider that when read as a whole the Tribunal’s decision evidences a failure by the Tribunal to evaluate and consider the UN Resettlement Form and the information contained therein. I therefore reject the applicant’s oral submission the absence of any express reference to the UN Resettlement Form in the Tribunal’s decision is evidence of “omission and ignoring”. Further, I reject the submission that MZYTS and the matter before the court are analogous and comprise “the same error”. In MZYTS the information not considered by the Tribunal was “more current country information”. Here, the information asserted by the applicant not to have been considered is information which was some 18 years old and is, in my view, information of a different character to that which was not considered by the Tribunal in MZYTS.
The applicant submits that the failure by the Tribunal to consider the UN Resettlement Form is analogous to that considered by the Full Court of the Federal Court in AFD21. The applicant submits that as in the matter before this Court, the Court in AFD21 considered a claim of failure to provide active intellectual consideration to representations of hardship arising from mixed Hutu Tutsi Heritage for an applicant of Burundian origin. I reject those submissions. Firstly, as set out above, I have found that the Tribunal did consider the UN Resettlement Form. Secondly, I accept the Minister’s submission that the decision in AFD21 must now be read in light of the High Court’s later caution in Plaintiff M1 against phrases such as proper, genuine and realistic consideration.
It follows from the above that Ground 1 discloses no jurisdictional error on behalf of the Tribunal.
Ground 2
Applicant’s submissions
By Ground 2 the applicant submits that the Tribunal failed to properly consider the contents of the Canadian Report.
The applicant submits that in considering the question of mixed ethnicity, the Tribunal failed to engage with the historically specific aspect of the Canadian Report. The applicant submits that the Tribunal misquoted passages of the Canadian Report which shifted the tense of the Canadian Report to construct a current conception of Burundian ethnicity as patriarchal, as opposed to a historical construction. In resolving the applicant’s claim as to mixed ethnicity on this basis, the applicant submits the Tribunal fell into error by misapplying a historical construction to the modern day. The applicant submits that there was no clear evidence before the Tribunal that the patriarchal structure of Burundian society exists today. The applicant contends that, were the evidence to have been properly contextualised, it is entirely possible the Tribunal would have preferred the applicant’s evidence that a mixed ethnicity category does exists, and that as a result, the applicant faces a real possibility of harm should he be returned.
Minister’s submissions
The Minister submits firstly that the Tribunal did not fail to consider the Canadian Report.
Further, the Minister submits that even if the Tribunal had made an error of fact when considering the Canadian Report, an error of fact is not, of itself, a jurisdictional error: CRU18 v Minister for Home Affairs (2020) 277 FCR 493(CRU18).
Secondly, the Minister submits that the Tribunal did not misapply or fail to understand the Canadian Report. The Minister submits that when read as a whole, it was justifiable for the Tribunal to read the information in the Canadian Report as current as the information was not only historical. Further, the Minister submits that the Tribunal also relied upon the evidence given by the applicant’s brother which confirmed the currency of the Canadian Report and patriarchal ethnicity.
Consideration – Ground 2
At paragraph [32] of its decision the Tribunals says:
As to the issue of mixed ethnicity the Canadian Immigration and Refugee Board reports that Burundi is a patriarchal society, the father’s ethnicity defines ethnic membership, therefore the child of a Hutu father and Tutsi mother is Hutu; the child of a Tutsi father and Hutu mother is Tutsi, there are no mixed categories.
Paragraph [62] of the Tribunal’s decision is set out in paragraph [58] above.
The relevant section of the Canadian Report is contained under the heading of “People Born of a Mixed Couple” and provides as follows:
In old Burundian society, membership by lineage, clan or “category” (the meaning of the word ubwoko which observers translated as “race” until the 1990s, before opting for “ethnic group”) was passed down through the father. Children identified with their father’s ethnicity. In other words, the child of a Hutu father and Tutsi mother was Hutu; the child of a Tutsi father and Hutu mother was Tutsi. There were no “mixed” categories. (historian 29 Jan. 2018)
In correspondence with the Research Directorate, a researcher whose areas of research include conflicts and the Great Lakes Region, said that, from his personal point of view, [translation] “since Burundi is a patriarchal society, it is the father’s ethnicity that defines ethnic belonging” (researcher 28 Jan. 2018). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
I reject the applicant’s submission that the Tribunal failed to consider or misapplied the Canadian Report.
Firstly, it is evidence that the Tribunal did consider the Canadian Report. It is expressly referred to in paragraph [32] and paragraph [62] of the Tribunal’s decision.
Secondly, I accept that the first paragraph of the relevant sections of the Canadian Report, as set out above, is expressed in the past tense as asserted by the applicant. However, the second paragraph is expressed in the present tense and indicates that the quote is from January 2018. That this is so is evidenced by the use of the word “is” in the phrase “since Burundi is a patriarchal society, it is the father’s ethnicity that defines ethnic belonging”. Accordingly, I consider it was open to the Tribunal to concluded that that information was current and not only historical in nature.
Thirdly, in concluding at paragraph [62] that it was not satisfied that the applicant would be viewed as being of mixed ethnicity if he returned to Burundi, the Tribunal relied not only on the relevant country information (being the Canadian Report) but also on the applicant’s brother’s evidence. The applicant’s brother’s evidence is set out at paragraphs [42] of the Tribunal’s decision. Paragraph [42] relevantly provides as follows:
[The applicant’s brother] was asked to comment on the country information from the Canadian immigration and refugee board as to Burundi being patriarchal society and that ethnicity was recognised in Burundi by a father’s ethnic membership (see paragraph 32 above). [The applicant’s brother] replied to the statement that: yes, his father was Hutu and his mother was Tutsi and we (he and the applicant) are mixed; and yes, when he was in Burundi he was identified as Hutu because of his father’s ethnicity…
In considering the applicant’s claims arising from his mixed ethnicity, at paragraph [61] the Tribunal said, relevantly, in relation to the applicant brother’s evidence:
The applicant’s brother also agreed that Burundi was a patriarchal society, and that ethnicity was determined by your father’s ethnic heritage. He further agreed that when in Burundi he was identified as Hutu due to his father being Hutu…
The applicant’s brother’s evidence was therefore consistent with the Canadian Report, as to the patrilineal nature of Burundian society.
Accordingly, Tribunal did not misapply the Canadian Report.
Further, even if, as asserted by the applicant, the Tribunal made an error of fact when considering the Canadian Report, no jurisdictional error necessarily follows. An error of fact and is not, of itself, a jurisdictional error. Something more is required. As the Full Court of the Federal Court observed in CRU18 at [31]:
A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA[2019] HCA 3; (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).
No such errors are asserted by the applicant nor do I consider such errors have arisen.
It follows from the above that Ground 2 discloses no jurisdictional error on behalf of the Tribunal.
Ground 3
By Ground 3 the applicant submits that the Tribunal did not fully “deal with” the applicant’s claim concerning the risks associated with being perceived as a “wealthy westerner”.
Applicant’s submission
The applicant submits that the Tribunal failed to deal with country information he provided from the UN Human Rights Council Commission of Inquiry on Burundi (CoI Report) which identified eye-witness experiences of returning refugees being accused of “abandon[ing] the country at the height of the crises and come back with a lot of money to buy land”. The applicant relies upon the Tribunal’s findings that the applicant provided “little detail” of this claim and that there was “no evidence” before it as to how the applicant would be perceived and targeted, given his present circumstances.
It is submitted that, had the Tribunal correctly considered the information before it, it could have determined that the applicant faced a real risk of persecution such that he was owed protection obligations.
Minister’s submissions
The Minister submits that the Tribunal did not fail to consider the country information relied upon by the applicant. The Minister submits that the country information provided by the applicant provided no evidence as to how he would personally be perceived as wealthy, given what the Tribunal described as “his present personal and financial situation”.
Consideration – Ground 3
At paragraph [56] of its decision, the Tribunal said:
As to the applicant’s claim of being viewed as a “rich westerner” he provided little detail but to say that people will think he is rich having come from the west and as such, that places him at risk of being kidnapped or killed for his possessions. The applicant in this regard provided no evidence as to how he would be so perceived and targeted given his personal and financial situation. Although the Tribunal acknowledges the difficult security situation and prevalence of violent offending in Burundi this risk of harm from criminals in Burundi is something that the Burundi and community at large face and can be mitigated by the applicant through modification of his behaviour insofar is taking reasonable precautions like other members of the Burundi Society to be in so far as not overtly disclaim any attributes of perceived wealth. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm for his perceived membership of the particular social group of ‘wealthy Westerners’. The Tribunal finds that the applicant’s fears as to this claim are not well-founded.
In November 2020 the applicant provided a statement in which he said at paragraph [16]:
Returning from such a long time away from the country people would find out that I had been in Australia. My representative also explains to me that there is a lot crime and kidnapping because Burundi is such a poor county. She says that people who are thought to be foreigners or who are seen to have money are more likely to be targeted by these criminal groups. This is another danger to me.
On 8 June 2022 the applicant provided a statement in which he said at paragraph [7]:
As I explained in my application it is dangerous in Burundi for refugees like me returning especially when you have no one and nothing to go to. There are many people in Burundi who are not happy with this. There is still torture, killing and cruelty in Burundi and so much poverty. I have also heard that people returning from rich countries in Europe and elsewhere are being killed because they are thought to have money. I know Australia is also considered to be a rich country.
On 21 October 2022 the applicant provided a statement in which he said at paragraph [38]:
People think that, because a person has spent many years living overseas, that person must have lots of money. People think that such a person has been earning and saving money for many years in a developed country that has a strong currency and a vastly superior currency exchange rate. It is assumed that such persons must be worth a lot of money. People kill these returnees with the intention of stealing their money that, it is presumed, must be in the returnees’ possession.
On 24 June 2022, the applicant filed further lengthy submissions (June 2022 Submissions) which provided a significant number of extracts from a range of country reports, including the CoI Report. In particular, I note that:
·page 3 of those submissions provide, relevantly, as follows:
Country information below confirms that returning refugees are targeted for …their imputed wealth if returning from wealthy countries including being subjected to bribery and extortion in demand for basic necessities.
·page 11 of those submissions, under the heading “Refugee returnees to Burundi”, also provide:
Country information detailed above and below demonstrates that Burundians perceived to be opposed to or who refuse to support the Burundian government or its youth wing the Imbonerakure are being targeted and that returnee refugees are also being set upon for imputed opposition/failure to support.
Country Reports are unequivocal that returning refugees are being targeted for other reasons also including revenge due to their heightening competition for scarce basic resources, and for perceived wealth (for returnees from western countries in particular). It is submitted that returning refugees like [the applicant], with no support or informal protection within the country are especially vulnerable to serious and significant harm. The UNHCR and other agencies document the terrible conditions and lack of resources for returning refugees.
·page 18 of those submissions also contain an extract from the CoI Report relied upon by the applicant which includes the following statement:
…One returnee said: “There are some people who insult us by calling us deserters and nobodies. They say we abandoned the country at the height of the crisis and come back with a lot of money to buy land. Some returnees recounted how residents shouted insults at them as soon as they got off the buses transporting them back to their areas of origin. People sometimes called returnees abaguji (jackals destroying crops), aba-UN (people taken care of by the UN).
I consider it clear from paragraph [56] of its decision that the Tribunal considered the applicant’s claim in relation to being a “rich westerner.” As to the nature of the consideration required by the Tribunal I refer to and repeat my comments set out at paragraph’s [46] – [47] above.
As to the applicant’s claim that the Tribunal failed to consider the CoI Report, I reject that submission. Firstly, in light of the applicant’s statements in relation this claim, as set out above, I consider it was open to the Tribunal to conclude that the applicant had provided “little detail” of this claim, other than to say that people will think he is rich having come from the west. Secondly, there was no evidence before the Tribunal as to how the applicant would be perceived as wealthy and targeted. Accordingly, I consider these finding were open to the Tribunal on the material before it and no inference can be drawn from them that the Tribunal failed to consider the CoI Report. Thirdly, the applicant submissions, as set out above, were that country information “confirms that returning refugees are targeted for their imputed wealth if returning from wealthy countries including being subjected to bribery and extortion in demand for basic necessities.” However, the extract of the CoI report relied upon by the applicant was to a somewhat different effect. The extract is included in the context of returning refugees being ostracised by local residents. It notes that there are “various forms of distrust towards returnees”, with some shouting insults at them. It does not talk about bribery or extortion, or about returned refugees being kidnapped or killed for their possessions.
It follows that Ground 3 discloses no jurisdictional error on the Tribunal’s behalf.
Ground 4
Applicant’s submissions
By Ground 4 the applicant submits that the Tribunal failed to consider the country information before it relating to persecution as a member of a group of returning refugees who had been convicted of offences outside of Burundi. The applicant submits that the CoI Report indicates that the youth wing of the ruling party, the Imbonerakure, are engaged in extra-judicial killings of people accused of ordinary crimes. The applicant submits that the CoI Report supports his claims that, should his criminal history be discovered, the mere accusation of other or further offending would be sufficient to place his life in jeopardy.
The applicant submits that, had the Tribunal correctly considered the information before it, it could have determined that the applicant faced a real risk of persecution such that he was owed protection.
Minister’s submissions
The Minister submits that the relevant country information does not refer to dispensing justice for crimes committed outside of Australia, and further the CoI Report provides that the victims of the youth wing were generally perceived as opponents of the government or ruling party. As such, the Minister submits that the country information did not lead the Tribunal to conclude that the applicant faced a real risk of harm by reason of his criminal convictions in Australia.
In any case, the Minister submits that Ground 4 is an impermissible attempt at merits review and must be rejected.
Consideration – Ground 4
In the June 2022 Submissions, the applicant submitted at page 3 that:
Country information below confirms that returning refugees are targeted for,
…
[the applicant’s] background as a ‘criminal deportee’ would increase his risk profile especially at the hands of the youth militia who also reported to also harshly punish individuals for non-political crime
Page 26 of the June 2022 Submissions included the following statement:
Risk as a result of criminal conviction in Australia
It is submitted that [the applicant’s] criminal conviction in Australia adds to his risk profile and vulnerability. As a male refugee returnee to Burundi from Australia with no resources or supports he is already vulnerable to targeting by the Imbonerakure. Country information confirms that the Imbonerakure does not limit itself to punishment for imputed political opposition – it also takes a role in more general punishment.
The September 2019 CoI Report for Burundi includes the following,
31. Acting in place of the authorities, Imbonerakure have killed persons accused of ordinary crimes, including theft and witchcraft, thus arrogating to themselves the right to dispense justice
Page 14 of the June 2022 Submissions provides as follows:
The COI further reported that, “Acting in place of the authorities, Imbonerakure have killed persons accused of ordinary crimes, including theft and witchcraft, thus arrogating to themselves the right to dispense justice.” Victims were generally perceived as opponents of the government or the ruling party or, first and foremost, members of the new political opposition party, the National Congress for Freedom (CNL), registered in February.
The June 2002 Submissions are referred to at paragraph [17] of the Tribunal’s decision.
At paragraph [57] and [58] of its decision, the Tribunal considered the applicant’s criminal conviction and imprisonment and says:
In relation to the applicant’s claim that if he was officially repatriated to Burundi, it will become known to the Burundian authorities and/or the people in the Burundi community that he has been convicted in Australia and that he will then be viewed as a criminal who will commit further offences so they will kill him. The Tribunal has considered this claim and also that of double jeopardy notwithstanding it was not specifically raised by the applicant. In regard to the issue of double jeopardy the Tribunal notes that the country information as outlined above at paragraph 36 provides that Burundi’s penal code prevents re-prosecution of crimes committed abroad. Further as to the applicant’s fears as to being viewed as a member of a particular social group being criminal returnees and being subjected to harm for being an overseas convicted criminal, the country information at paragraph 36 also identifies that Canada forcibly returned Jacob Niyongabo to Burundi after he had lived in Canada for more than 16 years after fleeing Burundi due to ethnic violence. It is noted that ‘Solidarity without Borders’ reported that he arrived in Burundi safely and after being initially detained for the purpose of confirming his identity he was released without further incident or being the subject of any harm.
The Tribunal, having considered the country information as outlined above, and the vague details provided to the Tribunal as to the foundation of the applicant’s fears as to this claim, is not satisfied that the applicant faces a real chance in the reasonably foreseeable future of being persecuted and being subject to serious harm for his membership of the particular social group of returned convicted criminals. The applicant’s fears in relation to this claim are not well-founded.
Firstly, in light of paragraphs [17], [57] and [58] of its decision, I do not consider that the Tribunal failed to consider the country information before it relating to persecution as a member of a group of returning refugees who had been convicted of offences outside of Burundi. Secondly, I accept the Minister’s submission that the CoI Report does not refer to dispensing justice for crimes committed outside of Australia. I consider this is further supported by the inclusion of witchcraft as an “ordinary crime”. Thirdly, the CoI Report provides that the victims of the youth wing were generally perceived as opponents of the government or ruling party or member of the CNL. Accordingly, when read as a whole, I do not consider that the relevant country information is to the effect asserted by the applicant. As such, I consider the Tribunal’s conclusion that the applicant did not face a real chance of being persecuted and being subject to serious harm for his membership of the social group of returned convicted criminals to be available to it on the evidence.
It follows from the above that Ground 4 therefore discloses no jurisdictional error on behalf of the Tribunal.
DISPOSITION
For the above reasons, the Amended Application must be dismissed.
The first respondent seeks an order that the applicant pay their costs. I shall order that the applicant pay the first respondent’s costs in an amount to be fixed if not agreed.
I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 14 December 2023
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