BYW22 v Minister for Immigration, Citizenship and Multicultural Affairs

Background

1. The following background facts concerning the appellant's migration history are reproduced from the reasons of the primary judge and are uncontroversial.
2. The appellant was born in Burundi on 25 December 1983. Sometime in 1993, at around the age of 10, the appellant 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 appellant fled Burundi on foot to Tanzania where he lived in a refugee camp until 2005. The appellant 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 visa.
3. On 12 April 2018, the appellant was convicted of unlawful sexual intercourse with a person under 17 years. The appellant 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 appellant's refugee visa was cancelled under s 501(3A) of the Act. On 24 September 2018 the appellant applied for revocation of the refugee visa cancellation, which was refused on 30 November 2021. In connection with that application, the appellant provided a submission dated 17 November 2020 to the Department of Home Affairs (Department). That submission was subsequently provided to the Department in support of the appellant's application for a protection visa (referred to below) and therefore became a relevant document on that application.
4. On 25 July 2019, upon release from criminal custody, the appellant was detained under s 189(1) of the Act.
5. On 25 May 2022, the appellant applied for a protection visa. The appellant's claims for protection as set out in his visa application were as follows:
6. It is not safe in Burundi, and he will not survive.
7. He does not know anyone in Burundi who could offer him support and he is not in contact with anyone in that country. He has not been in that country since he was very young about 30 years ago.
8. When he fled there was so much killing, and he was scared that the people who he believed attacked his family would kill him too.
9. In Burundi there is ongoing chaos and killing and he is scared to return as going back would take him back to what happened when he was young, and this would cause him more trauma and he would not get any help for that trauma in Burundi.
10. If he was sent back to Burundi, he would not have anywhere to live and he does not know anything of the country, he would be going back with no money and with no one to turn to and with no job. He does not know what he would do or how he would survive there.
11. His representative has shown him reports that indicate Burundi is still subject to violence and killings and that there is a youth militia called the 'Imbonerakure' who terrorise and kill people for political and other reasons, that are connected to the government of Burundi and that target people who will not support them and also returning refugees. He would not support any group like this group who are killing the people and he would be a returning refugee and therefore it seems likely he would be at risk from these people.
12. Not knowing anyone in Burundi whom he could trust would make it more dangerous for him. Returning after such a long time away from the country, people would find out that he had been in Australia and his representative explained to him that there is a lot of crime and kidnapping in Burundi as it is a poor country. His representative also told him that people who are thought to be foreigners or who are seen to have money are more likely to be targeted by these criminal groups and this is another danger to him.
13. He also understands that when you are sick in Burundi you just die because they do not have good health systems and with coronavirus being a problem this is another reason that he fears for his life if he was forced to return.
14. The appellant's claims as made in a submission to the Department on 24 June 2022 were as follows (errors in original): In summary, and as detailed in his application [the appellant] is at risk of persecution in the form of death, kidnapping, torture, physical assault, psychological harm, imprisonment, and severe discrimination amounting to persecution including a denial of access to basic services threatening his capacity to subsist, at the hands of the Burundi authorities, armed militias including the youth wing of the ruling government the Imbonerakure, and non-state actors, for the following, non-exhaustive convention reasons either cumulatively or separately: His membership of particular social groups, namely: i. Male refugee returnees to Burundi ii. Male refugee returnees suspected of support of opposition groups iii. Refugee returnees who have not lived in Burundi since childhood iv. Refugee returnees who have no effect of family support in Burundi and who are homeless and destitute v. Refugee returnees from the west with perceived wealth vi. returnees deported for criminal convictions vii. Burundians and returnees who have suffered psychological trauma viii. any combination of the above groups identified.
15. On 17 August 2022, a delegate of the Minister refused to grant the appellant the visa.
16. On 19 August 2022, the appellant applied to the Tribunal for review of the delegate's decision.
17. In his statement to the Tribunal dated 21 October 2022, submitted in response to the Tribunal's invitation to comment made under s 424A of the Act, the appellant gave the following reasons for his claim that he would not be safe in Burundi:
    • being of mixed ethnicity (Hutu and Tutsi);
    • having fled Burundi during the civil war;
    • having spent a lot of time in a developed country;
    • being perceived as having a significant amount of money;
    • not knowing how to survive in Burundi;
    • being perceived as a threat to the authorities in Burundi;
    • having been convicted of criminal offences in Australia; and
    • needing specialist mental health care.
18. On 18 November 2022, the appellant's representative provided the Tribunal with a pre-hearing submission. In the submission, the appellant claimed that he has a well-founded fear of persecution because he fears suffering serious harm for reasons of:
19. ethnicity (race);
20. membership of a particular social group (being those particular social groups previously identified in the appellant's statements and prior submissions); and
21. imputed political opinion (the appellant'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).
22. On 3 January 2023, the Tribunal affirmed the decision not to grant the appellant the visa.
23. The appellant lodged an application in the Federal Circuit Court, seeking judicial review of the Tribunal's decision under s 476 of the Act. On 14 December 2023, the primary judge concluded that the appellant had not demonstrated jurisdictional error in the Tribunal's decision. The reasons of the Federal Circuit Court are considered below in connection with each ground of appeal.

Claim to fear harm due to mixed ethnicity

1. Appeal ground 1 concerns the Tribunal's consideration of the appellant's claim to fear harm for reasons of his ethnicity, being mixed Hutu-Tutsi ethnicity. That claim was not expressly made in the appellant's visa application, nor in any documents submitted to the Department in support of the application. It first emerged in a statement provided by the appellant on 21 October 2022 in response to the Tribunal's invitation to comment made under s 424A of the Act (Tribunal reasons at [20]). The appellant relevantly stated as follows: Personal background: my mixed ethnicity
2. I wish to begin by telling you of my personal background.
3. I can recall that, when I was a child in or around 1992, my father said that we are a family of mixed ethnicity. I cannot recall whether he specified the ethnic groups. I know that the main ethnic groups in Burundi are Hutu, Tutsi and Twa. For a long time, I thought that my father might be referring to any combination of these ethnic groups.
4. More recently, I asked my elder [redacted] about our ethnicity. John then told me that our father was Hutu and our mother was Tutsi. I know that marriages between Hutus and Tutsis were, and remain, taboo and controversial.
5. My Form 866 application states my ethnic group as 'unsure'. When my application was being drafted, I was asked whether I am of Hutu or Tutsi or Twa ethnicity, and I answered that I am unsure. If I were to be asked the same question today, my answer would be the same because I do not know for sure what my ethnicity is. What I know for sure is that I am of mixed ethnicity. John, my elder brother, has told me that we are of mixed Hutu and Tutsi ethnicity.
6. I was approximately 9 or 10 years old when my father was killed. My father and I never had the opportunity to have a proper discussion about such specific issues. Irrespective of that, I understand that, in Burundi, my life would always be in grave danger on account of my ethnicity. Personal background: the civil war in Burundi
7. I would like to tell you about the time when I had to flee the violence in Burundi. I barely managed to escape alive.
8. I understand that there was a presidential election in the year 1993. After this election took place, there was an all out civil war in Burundi. I would have been approximately 9 or 10 years old at that time. Every ethnic group, tribe and clan was at war with each other. People were killing each other all over the country. Reasons for my family being killed
9. I was too young to have a strong understanding of the situation around me, but I think that there are several reasons why my family was killed in the civil war.
10. My family was particularly at risk because my father and mother belonged to different ethnic groups (that I now know to be Hutu and Tutsi). Ethnically mixed marriages were considered to be against social and cultural convention. ...
11. The claim was further articulated in a statutory declaration made on 3 November 2022 by the appellant's brother that was sent to the Tribunal on 8 November 2022 and received at the hearing. The Tribunal accurately summarised the contents of the declaration as follows (at [24]): On 8 November 2022 the applicant through their representative provided a hearing response to the Tribunal indicating that he would take part in the hearing and that his brother [name redacted] would also give oral evidence at the hearing. Attached to the hearing response was a statutory declaration under the hand of his brother in which his brother declared that their parents (the applicant's and his brother's) were from different ethnic tribes. Their mother was from the Tutsi tribe and their father from the Hutu tribe and that they both died during the Burundi civil war of 1993. His brother declares that the applicant is of mixed ethnic descent and this has always been an issue in Burundi. His brother states that if the applicant was sent back to Burundi it is highly likely that he would be killed because of his mixed ethnicity. …
12. The claim was also made in a submission to the Tribunal dated 18 November 2022. The Tribunal referred to that submission (at [25]) and noted that it "additionally submitted a new claim, being the applicant's mixed Hutu-Tutsi ethnicity". The sole focus of the 18 November 2022 submission was the appellant's claim to fear harm based on his mixed Hutu-Tutsi ethnicity (but the submission noted that the appellant had not abandoned his other claims for protection). Relevantly, the 18 November 2022 submission placed reliance on the Resettlement Registration Form that was completed by the UNHCR in 2005, when the appellant was a refugee in Tanzania and was pursuing resettlement in Australia. The submission quoted extensively from the UNHCR Resettlement Registration Form as follows:
13. Para 15 of the submission noted that, on the first page of the UNHCR Resettlement Registration Form, the appellant's ethnic origin is described as 'Hutu mixed'.
14. Para 16 of the submission noted that, on the fifth page of the UNHCR Resettlement Registration Form, the following statements were made: [The appellant] is a 21 year old Burundian man of mixed ethnicity … [The appellant's] father was Hutu and his mother was Tutsi. … [The appellant] and his family were one of the first families attacked in their area, possibly because of their mixed ethnicity.
15. Para 24 of the submission noted that, on the fifth page of the UNHCR Resettlement Registration Form, the following statements were made: [The appellant] and his family were one of the first families attacked in their area, possibly because of their mixed ethnicity. In October 1993, [the appellant] was living with [sic] in a house with his parents and siblings. [The appellant] 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 appellant's] 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 appellant] 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 appellant's] family was burned to death in the house. [The appellant] fears that if he and his brother return they will face a similar future. [The appellant] managed to flee to Tanzania on his own. [The appellant] 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. 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.
16. Para 25 of the submission noted that the foregoing passage was followed by another under the heading 'Well Founded Fear of Persecution': In UNHCR's view, [the appellant] 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 appellant] and his family were targeted for death by militants who chose their targets based upon ethnicity.
17. Para 26 of the submission noted that, on the seventh page of the UNHCR Resettlement Registration Form, the following passage appears: [The appellant] 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.
18. The submission attached a copy of the UNHCR Resettlement Registration Form. It is apparent that all passages in the Form that are relevant to the appellant's claim concerning mixed ethnicity were reproduced in the submission. One matter should be noted. Although the submission stated that the appellant's ethnic origin is described as 'Hutu mixed' on the first page of the UNHCR Resettlement Registration Form, in fact the form records the appellant's ethnic origin as 'Hutu' in typed script, and then records in blue handwritten ink the word 'mixed'. There was no evidence concerning the author of the blue handwritten ink. However, it is notable that the copy of the Form in evidence was signed by both the appellant and the UNHCR interviewer on 14 February 2005, with the signatures and date appearing in black ink (or at least a black photocopy reproduction). The only other handwritten markings on the document which are coloured blue are a series of tick notations against various paragraphs which are accompanied by the date 29 April 2005. The front of the Form records that it was received by the Australian High Commission Immigration Section on 11 March 2005. I infer from the foregoing that the appellant and the UNHCR recorded the appellant's ethnicity in the Form as 'Hutu', but an official of the Australian High Commission Immigration Section added the word 'mixed' against the appellant's ethnic origin. The addition of the word "mixed" is not, however, controversial. In another part of the Form, the appellant is described as a "21 year old Burundian man of mixed ethnicity" and that the appellant's "father was Hutu and his mother was Tutsi". The Tribunal did not make any finding contradicting the appellant's claim that his father was Hutu and his mother was Tutsi.

Tribunal's decision

1. In relation to the appellant's claim to fear harm due to having mixed ethnicity, the Tribunal made express reference to the appellant's statement dated 21 October 2022, the statutory declaration made by the appellant's brother on 3 November 2022 and the appellant's submission dated 18 November 2022 as referred to above. The Tribunal did not, however, expressly refer to the UNHCR Resettlement Registration Form. Nevertheless, as noted above, the relevant parts of the UNHCR Resettlement Registration Form were reproduced in the appellant's submission dated 18 November 2022. The Tribunal also referred to a wide range of country information relating to Burundi. Relevantly, the Tribunal referenced the report of the Canadian Immigration and Refugee Board dated 7 February 2018 titled Burundi: Treatment of people born of mixed Hutu-Tutsi couples by members of these two groups: state protection (2016-January 2018) and stated (at [32]):
2. 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.
3. The Tribunal summarised the appellant's claim and evidence as follows (at [60]-[61]):
4. The applicant claims both in his pre-hearing submission and in his oral evidence before the Tribunal that he is in danger of harm as he is of a mixed ethnic heritage. He explained that his father was Hutu and his mother Tutsi and as such he is not welcomed by either ethnic group in Burundi and that he will face harm and likely be killed if he returns to Burundi on account of him being of mixed ethnicity. His evidence as to this claim was that when he and his brother were at the refugee camp in Tanzania, they could not live in the Hutu section or the Tutsi section of the camp, as it was not safe for them as they were of mixed ethnicity. He explained that the UN placed them in the protection section of the camp which was for people of mixed ethnicity.
5. The applicant's brother gave evidence as to this claim stating that he and the applicant had been placed in the protection section of the Tanzanian refugee camp after initially being placed in the Hutu section. He explained that the reason for this was because they were suspected of having information or taking information to the Tutsi and so they were placed in the protection section of the camp. The applicant's brother also agreed that Burundi was a patriarchal society, and that ethnicity was determined by your father's ethnic heritage. He further agreed that when in Burundi he was identified as Hutu due to his father being Hutu. He further explained that he and the applicant don't belong to anyone (any ethnic group, Hutu or Tutsi) and that if his brother returned to Burundi, he would be killed due to his mixed ethnicity. He also stated that if he were to return to Burundi, he would not find a job as he does not belong to a group and so as a mixed person it would be very hard in Burundi.
6. The Tribunal then recorded the following conclusion (at [62]):
7. The Tribunal having considered the relevant country information as to the issue of ethnicity as outlined above at paragraph 32, and the applicant's brother's evidence that he was recognised as Hutu when he was in Burundi is not satisfied that the applicant would be viewed as being of mixed ethnicity if he returned to Burundi. The Tribunal prefers the independent country information and finds that the applicant would be viewed as being Hutu if he were to return to Burundi. The Tribunal in this regard is not satisfied that the applicant faces a real chance of persecution involving serious harm as a result of him being identified as being a member of a particular social group, that being of mixed ethnicity. The Tribunal does not accept that there is such a particular social group given the patriarchal societal views in Burundi. The Tribunal finds that the applicant does not in the reasonably foreseeable future face a risk of persecution involving serious harm for his supposed membership of the particular social group of members of mixed ethnicity in Burundi. The applicant's fears of harm in regard to this claim are not well-founded.

Grounds of review before the primary judge

1. Before the primary judge, the appellant advanced two grounds of judicial review concerning the Tribunal's consideration of his claim to fear harm due to having mixed ethnicity. The two grounds were stated as follows:
2. 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 [sic] 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.
3. 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.
4. The primary judge understood the first ground of review to be based on the jurisdictional requirement for the Tribunal to give due consideration to the submissions and evidence advanced by an applicant before it. In that regard, the primary judge referred to the following summary of the applicable requirement in the joint reasons of Kiefel CJ, Keane, Gordon and Steward JJ in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1) (at [24], references omitted): 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.
5. The argument advanced by the appellant before the primary judge was to the effect that the Tribunal failed to consider the UNHCR Resettlement Registration Form. In that regard, the appellant pointed to the fact that the Tribunal made express reference to the report from the Canadian Immigration and Refugee Board, but made no express reference to the UNHCR Resettlement Registration Form. The primary judge rejected that argument for the following reasons (at [69]-[73]): 69 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. … 70 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. 71 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. 72 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. 73 It follows from the above that Ground 1 discloses no jurisdictional error on behalf of the Tribunal.
6. With respect to the second ground of review, it is apparent that the primary judge had difficulty in understanding the basis on which the alleged error was claimed to be jurisdictional in nature. Ultimately, her Honour found that the Tribunal had not "misapplied the evidence" in the manner alleged by the appellant and concluded that the Tribunal's finding with respect to ethnicity (that Burundi is a patriarchal society and a child takes the ethnicity of the child's father) was supported by the report from the Canadian Immigration and Refugee Board as well as the evidence given by the appellant's brother (at [82]-[88]). The primary judge also observed that, even if the Tribunal made an error of fact when considering the report from the Canadian Immigration and Refugee Board (as asserted by the appellant), no jurisdictional error necessarily followed. In that regard, the primary judge referred (at [89]) to the following passage from the decision of the Full Court of the Federal Court in CRU18 v Minister for Home Affairs (2020) 277 FCR 493 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).
7. The primary judge concluded (at [90]) that no such errors were asserted by the appellant and nor did the primary judge consider that such errors had arisen.

Appellant's arguments concerning ground 1

1. Ground 1 of the appeal is formulated as follows: The primary judge erred in finding that the Tribunal inferred that the UN Resettlement Form was immaterial, and that therefore there was no failure to consider the Applicant's claim that he faced a real chance of harm because of his membership of the particular social group of persons with mixed ethnicity (primary judge's reasons at [70]). The primary judge instead ought to have found that the inference of materiality showed that the Tribunal failed to consider the Applicant's claim.
2. The ground of appeal is poorly worded and obscures the appellant's principal contention on the appeal. The primary judge did not find that the Tribunal inferred that the UNHCR Resettlement Registration Form was immaterial. The primary judge inferred that the reason that the Tribunal did not refer expressly to the UNHCR Resettlement Registration Form was that the Tribunal considered that it was not material to the Tribunal's decision. The ground of appeal conveyed that the primary judge erred in drawing that inference. The last sentence of the ground of appeal is also phrased in an obscure manner but can be understood as a contention that, as the UNHCR Resettlement Registration Form constituted relevant evidence on the claim made by the appellant (and must therefore be considered material), the absence of any express reference to the Form indicates that the Tribunal failed to have regard to it.
3. The appellant's written submissions were also framed in a manner which tended to obscure the appellant's principal argument, until oral submissions were made. In particular, it was not clear from the written submissions whether the appellant challenged the primary judge's finding that the reason that the Tribunal did not refer expressly to the UNHCR Resettlement Registration Form was that the Tribunal considered that it was not material to the Tribunal's decision. Ultimately, the written submissions must be understood as accepting the correctness of the primary judge's finding (and that was confirmed by the appellant's counsel in the course of oral submissions, referred to below). The burden of the appellant's submission was that the Tribunal erred in treating the UNHCR Resettlement Registration Form as immaterial to its decision, and the primary judge erred in failing to make that finding and in failing to find that the error was jurisdictional.
4. The appellant argued in its written submissions that the UNHCR Resettlement Registration Form was a detailed assessment of refugee status from the UNHCR, which is the international body mandated to assess refugee status. It followed, on the appellant's argument, that it was significant and credible evidence, and would not have been lightly put to one side, assuming it to have been considered in the first place. In that regard, the appellant relied on the statement of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (at [69]) that the Tribunal's "identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration". The appellant argued that the Tribunal's implicit conclusion that it considered the UNHCR Resettlement Registration Form to be immaterial indicates that the Tribunal failed to take into account a relevant consideration. It can be observed that the appellant's submission appeared to equate two different concepts: the first being a failure by the decision-maker to take into account a relevant consideration and the second being an assessment by the decision-maker that a piece of evidence carries immaterial weight.
5. The appellant also argued in its written submissions that the primary judge erred in surmising that the Tribunal did not refer to the UNHCR Resettlement Registration Form because it preferred, as a source of relevant information, the Canadian report. The appellant submitted that such reasoning impermissibly rewrites the Tribunal's decision. In that regard, the appellant referred to Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) where the Full Court said (at [50]) that, in the context of two pieces of apparently pertinent evidence, an "expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given". The appellant submitted that the Tribunal offered no such expression of preference, and the primary judge was wrong to infer that this is what the Tribunal did when the reasons did not say that this is what it did. I interpolate that the burden of this argument was not clear from the written submissions. It would appear to be an argument in support of a conclusion that the primary judge was wrong to find that the Tribunal took the UNHCR Resettlement Registration Form into account but did not refer to it expressly because it considered it to be immaterial to its decision. However, as explained in the next paragraph, the appellant did not advance that argument.
6. The appellant's oral submissions clarified that, contrary to the manner in which ground 1 of the appeal was framed, the appellant did not challenge the primary judge's finding that the Tribunal considered the UNHCR Resettlement Registration Form and that the reason that the Tribunal did not refer expressly to the UNHCR Resettlement Registration Form was that the Tribunal considered that it was not material to the Tribunal's decision. Counsel for the appellant, Mr Guo, submitted: Neither party challenges the primary judge's finding … that the tribunal thought this piece of information - being the UNHCR assessment - was immaterial. The primary judge found that. We don't challenge that, and my learned friend doesn't challenge that. The question is whether that conclusion - implicit conclusion - of the tribunal as the primary judge found it, is a correct conclusion.
7. Later in oral submissions, Mr Guo repeated that submission: I'm saying the primary judge was correct in finding that the tribunal subjectively concluded it was immaterial. And I'm saying that that conclusion of immateriality, reached by the tribunal, is wrong.
8. That submission took the Minister by surprise but, as discussed below, the Minister was content to advance oral arguments in response at the hearing.
9. The oral argument advanced by the appellant resurrected, to some extent, the contention that the Tribunal "misapplied the evidence" (as per ground 2 before the primary judge). That argument begged the question: what was meant by the submission that the Tribunal's conclusion of immateriality "is wrong"? As explained by the High Court in Plaintiff M1, the weight to be given to representations and information before the decision-maker is a matter for the decision-maker, subject to the decision-maker's assessment being within the bounds of rationality and reasonableness (at [24]-[25]).
10. The appellant submitted that it was not necessary for him to show that the Tribunal's conclusion, that the UNHCR Resettlement Registration Form was immaterial, was a legally unreasonable or irrational conclusion. It was only necessary to show that the Tribunal's conclusion had the effect that the Tribunal failed "to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a)", referring to MZYTS at [46].
11. In support of its submission that the Tribunal's conclusion, that the UNHCR Resettlement Registration Form was immaterial, was "wrong", the appellant referred to the following statements made in the UNHCR Resettlement Registration Form:
12. The appellant and his family were one of the first families attacked in their area (in 1993), possibly because of their mixed ethnicity.
13. In UNHCR's view (expressed in 2005), the appellant had 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.
14. When the appellant first came to Tanzania, he had great difficulty finding true refuge. The appellant was taken to Kanembwa where others of mixed ethnicity have faced serious threats from other refugees.
15. While UNHCR was facilitating voluntary repatriation for Burundians, UNHCR recognised that the situation in Burundi remains violent and unstable and 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.
16. The appellant reiterated that the UNHCR was responsible for the implementation of the 1951 Refugee Convention. The appellant submitted that the opinions of the UNHCR were worthy of respect; and the fact that the UNHCR Resettlement Registration Form was made in 2005 did not render it immaterial, as it could not be assumed that the situation for persons of mixed ethnicity in Burundi had improved over time.
17. In support of that argument, the appellant also placed reliance on DHS17 v Assistant Minister for Immigration and Border Protection (2018) 267 FCR 411 (DHS17). That case concerned a decision by the Minister under s 501CA(4) of the Act not to revoke the cancellation of the appellant's protection visa. In making the decision, the Minister relied on an International Treaties Obligations Assessment. However, the copy of the Assessment relied on by the Minister omitted certain information with the result that the information was not taken into account by the Minister. The Full Court concluded that the Minister's failure to consider the omitted information was a failure to consider a relevant consideration that he was bound to consider if he was to inform himself by reference to the Assessment. The appellant relied on the reasoning of the Full Court that the relevant issue in the case was the seriousness of the omission, assessed by reference to the statutory decision-making task and the circumstances of the particular case, including the nature of the omitted material, its cogency and its place in the assessment of the appellant's claim (at [56]).

Minister's arguments concerning ground 1

1. In written submissions, the Minister argued that the primary judge was correct to find that the Tribunal read, understood and considered the appellant's submission dated 18 November 2022 and claims made in that document, and was correct to infer that the Tribunal considered the UNHCR Resettlement Registration Form but did not refer expressly to the document because it did not consider it material to its decision. The Minister submitted that the primary judge's reasons involve the following steps, each of which was correct:
2. The first step was that the UNHCR Resettlement Registration Form was referred to at length in the appellant's submission dated 18 November 2024, which was correct. The submission reproduced all relevant aspects of the UNHCR Resettlement Registration Form.
3. The second step was that the Tribunal's reasons showed that the Tribunal considered the appellant's submission dated 18 November 2022, which was correct. The Tribunal expressly referred to the 18 November 2022 submission at [25] of its reasons. The Tribunal noted that the submission added a new claim, being the appellant's mixed Hutu-Tutsi ethnicity, and the Tribunal referred to the submission that the Tribunal "ought to find that the applicant is of mixed ethnicity and that he has a well-founded fear of persecution were he to be returned to Burundi". The primary judge was therefore correct to conclude that the Tribunal had read, understood and considered the appellant's submission dated 18 November 2022 and the appellant's claim made in that submission.
4. The third step was to infer that it was "improbable" that the Tribunal read the appellant's submission dated 18 November 2022 and the claim made in that submission, but overlooked or failed to consider the UNHCR Resettlement Registration Form itself. The Minister submitted that the appellant had not shown any error in that finding.
5. The Minister submitted that, given the extensive reference to the UNHCR Resettlement Registration Form in the appellant's submission, there is no basis to conclude that the Tribunal somehow overlooked that document. As identified by the primary judge (at [69]), there were further indications in the Tribunal's reasons to suggest that it considered the UN Resettlement Form:
6. First, the Tribunal was cognisant that the appellant had been involved with the UNHCR in 2005. The Tribunal recorded that the appellant was granted a refugee visa on 24 May 2005 (at [13]) and noted the appellant's evidence that "he arrived in Australia on 8 August 2005 after being resettled in Australia as a refugee with the assistance of the United Nations" (at [40]).
7. Second, the Tribunal also accepted the appellant's claims regarding the killing of his family, stating (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 …". The Minister submitted that the Tribunal's reference to "other material presented to the Tribunal" appears to be a reference to the UNHCR Resettlement Registration Form as it is otherwise not clear what the Tribunal could have been referring to.
8. The Minister submitted that there was nothing unorthodox in the Tribunal not referring to the UNHCR Resettlement Registration Form itself. The Tribunal referred to the submission which extracted the most significant aspects of the Form. The Tribunal could put to one side the Form in circumstances where it contained the conclusions of a refugee assessor some 18 years earlier than the Tribunal's decision, in different circumstances and made on different and less fulsome information than that available to the Tribunal.
9. In response to the appellant's oral submissions, the Minister observed that the argument differed from the argument advanced before the primary judge. The appellant's oral submission involved a concession that the UNHCR Resettlement Registration Form was considered by the Tribunal and found to be immaterial, and a contention that the conclusion of immateriality "was wrong". The Minister submitted that, to succeed on that argument, the appellant must show that the Tribunal's conclusion of immateriality was legally unreasonable or irrational. In that regard, the Minister submitted that the weight to be given to the UNHCR Resettlement Registration Form was a matter for the Tribunal.
10. The Minister further submitted that the appellant's reliance on MZYTS was misplaced. The facts of that case were that the Tribunal failed to have regard to updated country information concerning Zimbabwe. The Minister submitted that the decision concerns the legal necessity, in the context of decision-making applying s 36(2)(a) of the Act, to have regard to current information. The Full Court explained: 72 As we observed at the outset of these reasons, to say the flaw in the Tribunal's decision is "failing to consider most recent information" is an inapt description. In this context something must be said of using the language of "considering" a matter or issue. The statutory task here in issue differs from the one in Tickner v Chapman (1995) 57 FCR 451 (Tickner), where the verb "consider" appeared in the statutory obligation itself. In that circumstance, some construction must be given to what Parliament meant when it used that verb in describing a ministerial function, and that is what the Full Court did in Tickner. Here, the statutory task is described at a broader level and the question whether the state of satisfaction about whether a person is owed protection obligations under Art 1 was lawfully formed will not necessarily be answered by expansive definitions of what the word "consider" means. 73 Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person's fear of persecution for a Convention reason on return to her or his country of nationality is well founded. 74 That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.
11. The Minister submitted that the present case is distinguishable from MZYTS because, first, in this case it is conceded by the appellant that the Tribunal had regard to the UNHCR Resettlement Registration Form (but found the information not to be material), and second, the UNHCR Resettlement Registration Form contained information from a much earlier time compared with the report of the Canadian Immigration and Refugee Board relied on by the Tribunal.

Consideration

1. I accept the Minister's submission that the argument advanced by the appellant on ground 1 of the appeal was not the argument advanced before the primary judge, at least in so far as it related to ground 1 below. The argument advanced on ground 1 below was that the Tribunal failed to give consideration "of the requisite quality" (which I take to be a reference to the principles stated by the plurality in Plaintiff M1 at [24]-[26]) to the information in the UNHCR Resettlement Registration Form. The primary judge rejected that argument and concluded that the Tribunal had duly considered the UNHCR Resettlement Registration Form but found it to be immaterial to the decision on the appellant's claim concerning mixed ethnicity. That conclusion was not challenged on this appeal by the appellant; rather, it was embraced.
2. The appellant's choice not to challenge the primary judge's conclusion on ground 1 below causes me some disquiet. The statements made by the UNHCR in the Resettlement Registration Form were a central piece of evidence in support of the appellant's claim to fear harm upon return to Burundi on account of his mixed ethnicity. As the appellant submitted, the UNHCR is the body responsible for the 1951 Refugee Convention. Further, there were only three relevant pieces of evidence addressing the appellant's claim: the UNHCR Resettlement Registration Form, the report of the Canadian Immigration and Refugee Board and the evidence given by the appellant's brother. The Tribunal refers to the latter two pieces of evidence in its reasons but makes no express reference to the UNHCR Resettlement Registration Form. The Tribunal neither summarises the relevant statements in the UNHCR Resettlement Registration Form nor explains why the Tribunal gives it no material weight. The appellant argued below that the foregoing circumstances indicated that the Tribunal member must have failed to have regard to what was said in the UNHCR Resettlement Registration Form, bring his mind to bear upon the facts stated in the Form and the opinions expressed, and appreciate who was stating the facts and expressing the opinions, to adapt the statement of Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 451 at 495, cited with approval in Plaintiff M1 at [24]. That argument, advanced below, has considerable force. The primary judge understood the argument, but concluded that the better inference was that the Tribunal duly considered the UNHCR Resettlement Registration Form but found that it had immaterial weight. Ground 1 of the appeal appeared to challenge that conclusion, but the appellant made clear in the course of the hearing that he did not challenge that conclusion. In the circumstances, and despite some disquiet I have with respect to the conclusion, procedural fairness requires me to determine the appeal on the basis of the arguments advanced by the appellant and argued by the parties.
3. The appellant's argument on the appeal was that the Tribunal's implicit conclusion (that the UNHCR Resettlement Registration Form had no material weight on the appellant's claim concerning mixed ethnicity) was "wrong". That argument is closer to ground 2 below: that the Tribunal "misapplied" the evidence relating to the appellant's claim concerning mixed ethnicity. The primary judge also rejected ground 2 and concluded that the appellant had failed to demonstrate requisite error in the Tribunal's assessment of the evidence such as the consideration of irrelevant material, the failure to take account of a relevant material, or unreasonableness, irrationality or illogicality (in the senses contemplated by the authorities).
4. It has been necessary to explain the shifting ground of the appellant's arguments on ground 1 of the appeal so as to clearly identify the issue now raised by this ground of appeal. As acknowledged at the commencement of these reasons, there is no rigid classification of the errors that constitute jurisdictional errors and the identification of jurisdictional error is not an exercise in taxonomy. Nevertheless, an applicant alleging jurisdictional error must identify the condition of the exercise of the statutory power that is alleged to have been breached and the manner in which it has been breached. Between the Federal Circuit Court and this Court, the appellant has vacillated between alleging that the Tribunal failed to have regard to the UNHCR Resettlement Registration Form as part of the claim advanced by the appellant and alleging that the Tribunal "wrongly" preferred the report of the Canadian Immigration and Refugee Board over the opinions expressed in the UNHCR Resettlement Registration Form. In the course of the hearing of the appeal, the appellant made it clear that he only advanced the latter argument: that the Tribunal erred in preferring the report of the Canadian Immigration and Refugee Board and in regarding the information in the UNHCR Resettlement Registration Form as not material to its decision on the appellant's claim.
5. It is well-established that the weighing of pieces of evidence is a matter for the Tribunal: Abebe v The Commonwealth (1999) 197 CLR 510 at 580 [197] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Plaintiff M1 at [24] (Kiefel CJ, Keane, Gordon and Steward JJ). This reflects the limited role of the courts in reviewing administrative decisions: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 (Brennan J). It is also well‑established, however, that the Tribunal's assessment of representations and evidence must occur within the bounds of rationality and reasonableness: Plaintiff M1 at [25].
6. It follows that, to succeed on this ground of appeal, the appellant must show that the weight given by the Tribunal to the UNHCR Resettlement Registration Form was unreasonable or irrational.
7. The appellant resisted that proposition and submitted that the error alleged by the appellant is of the character found in MZYTS - a failure to form the state of satisfaction required for the purposes of a review in respect of the criterion in s 36(2)(a) of the Act. As submitted by the Minister, the appellant's reliance on MZYTS is misplaced. MZYTS was a case in which the Tribunal failed to have regard to updated country information, and the Court found that the performance of the Tribunal's statutory task under s 36(2)(a) of the Act required consideration to be given to the updated country information. In MZYTS, the Minister argued that the Court should infer that the Tribunal had regard to the updated country information but did not regard the information as material. The Court refused to draw that inference. MZYTS is therefore a case which is the inverse of the present. In this case, the appellant chose not to challenge the primary judge's finding, by way of inference, that the Tribunal had regard to the UNHCR Resettlement Registration Form, but assessed the Form as immaterial to its decision.
8. The appellant also placed reliance on the reasoning in DHS17. Again, however, that was a case in which the decision-maker (the Minister) failed to have regard to certain information in making his decision. The relevant question in that case was whether the information was material to the decision (because a failure to have regard to immaterial information would not involve jurisdictional error) (see [55]-[56]). Again, in this case, the appellant concedes that the Tribunal had regard to the UNHCR Resettlement Registration Form.
9. On the appeal, the appellant did not advance a substantive argument that the Tribunal's assessment or weighing of the UNHCR Resettlement Registration Form was unreasonable or irrational. As noted earlier, the appellant submitted that: the UNHCR was responsible for the implementation of the 1951 Refugee Convention; its opinions were worthy of respect; the fact that the UNHCR Resettlement Registration Form was made in 2005 did not render it immaterial; and accordingly the UNHCR Resettlement Registration Form was significant and credible evidence. However, those submissions rise no higher than reasons why a decision‑maker might, in the assessment of the appellant's claim, reach a different conclusion to the Tribunal on the weight to be attributed to the UNHCR Resettlement Registration Form. The submissions fall far short of establishing that the Tribunal's preference for the opinion expressed in the report of the Canadian Immigration and Refugee Board was irrational or illogical. As observed by the primary judge (at [84]-[87]), the Canadian report contained more current information (dating from 2018) and was corroborated by the evidence given by the appellant's brother who agreed that Burundi was a patriarchal society, that ethnicity was determined by a father's ethnic heritage and that when in Burundi he was identified as Hutu due to his father being Hutu.
10. Having conceded that the Tribunal had regard to the UNHCR Resettlement Registration Form, the appellant has failed to demonstrate that the Tribunal's assessment of the information in the Form involved jurisdictional error, and has failed to demonstrate error in the primary judge's reasons. I therefore reject ground 1 of the appeal.

Claim to fear harm due to imputed wealth

1. Appeal ground 2 concerns the Tribunal's consideration of the appellant's claim to fear harm because of his imputed wealth. In his visa application, the appellant claimed: 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.
2. That claim was repeated in the appellant's submission to the Department made on 24 June 2022, which stated that "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".
3. Under the heading "Refugee returnees to Burundi", the submission stated as follows: Country information identifies refugee returnees (with variations) to be a particular social group in Burundi. 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 appellant], 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.
4. Under the heading "Risk of criminal targeting as a returnee from the West" the submission stated as follows: In addition to country information above about targeting of returning refugees, it is submitted that given the poverty in Burundi, [the appellant] will be at risk for criminal motives as a returnee perceived as having money. Having returned from a long period in Australia he will be perceived to have wealth. Country information confirms violent crime to be prevalent.
5. The claim was also repeated in the statement provided by the appellant on 21 October 2022 in response to the Tribunal's invitation to comment made under s 424A of the Act, where the appellant stated: 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.

Tribunal's decision

1. The Tribunal made express reference to the appellant's claim as referred to above. The Tribunal recorded the following assessment and conclusion on that claim (at [56]): Rich westerner
2. As to the applicant's claim of being viewed as a 'rich westerner' he provided little detail but to say that people will think he is rich having come from the west and as such, that places him at risk of being kidnapped or killed for his possessions. The applicant in this regard provided no evidence as to how he would be so perceived and targeted given his present personal and financial situation. Although the Tribunal acknowledges the difficult security situation and prevalence of violent offending in Burundi this risk of harm from criminals in Burundi is something that the Burundian community at large face and can be mitigated by the applicant through modification of his behaviour in so far as taking reasonable precautions like other members of the Burundian society in so far as not overtly displaying any attributes of perceived wealth. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for his perceived membership of the particular social group of 'wealthy westerners'. The Tribunal finds that the applicant's fears as to this claim are not well-founded.

Grounds of review before the primary judge

1. Before the primary judge, the appellant advanced the following ground of judicial review concerning the Tribunal's consideration of his claim to fear harm due to perceived wealth: 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 [sic] 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.
2. The primary judge found (at [101]) that the Tribunal considered the appellant's claim to fear harm due to perceived wealth in accordance with the requirements explained in Plaintiff M1 at [24]-[26]. In respect of the appellant's argument that the Tribunal failed to consider the UN Human Rights Council Commission of Inquiry on Burundi (CoI Report), the primary judge concluded as follows (at [102]): 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.

Appellant's arguments concerning ground 2

1. By ground 2 of the appeal, the appellant contended (in effect) that the primary judge erred by failing to find that the Tribunal did not consider the appellant's claim, because the Tribunal misdirected itself in concluding that the appellant could modify his behaviour to avoid being perceived as wealthy when the risk of that perception was not dependent on overt behaviour.
2. The appellant submitted that the appellant's claim was not a claim about ostentatious displays of wealth; rather, it was a claim about people imputing that he was wealthy from the bare fact that he had spent many years living overseas. The appellant further submitted that the claim was not just about being perceived to be wealthy. Returning from a rich country also carried the 'baggage' of accusations of 'being disloyal, of profiting from donor support or of siding with opposition parties', and being the targets of extortion. In support of that submission, the appellant relied on the following paragraphs of the appellants statement to the Tribunal dated 21 October 2022:
3. I would like to emphasise that the situation in Burundi is precarious for people who return, especially if they return from developed countries. I know of at least two of my acquaintances who fled Burundi and spent a number of years overseas, including developed countries. As soon as they returned to Burundi, they were killed arbitrarily.
4. One of my acquaintances' name was Prudence. He fled Burundi and ended up in a Tanzanian refugee camp, where I met him in 2005 just before I migrated to Australia. Prudence was able to migrate to the United States of America. After spending several years there, he decided to go to Burundi for a visit in 2013. He was killed shortly after he arrived in Burundi. Prudence's brother told me about his death soon after he was killed. Prudence's brother said that the Burundian authorities were complicit in killing Prudence because they wrongly suspected him of being a foreign agent who was working against the government.
5. The other acquaintance's name was Ridon, who was also from Burundi. I first met him in early 2015 when both of us were living in South Australia. I remember that I was in a shopping centre in Adelaide. I overheard Ridon speaking on the phone in Kirundi language. That is how I recognised him as a fellow Burundian and we began talking to each other. A few months after that, I heard that Ridon went to Burundi for a visit and, while he was there, he was kidnapped for extortion and then killed for allegedly undermining the government.
6. I would like to explain why it is common for Burundian nationals such as Prudence and Ridon to be killed after they return to Burundi from overseas. Alleged political opposition
7. In Burundi, anyone can accuse a person of belonging to an opposing political faction. There is no rule of law in Burundi. There is no fairness or justice either. All it takes is for people accuse a person of being a political opponent, whether or not that person actually holds and political beliefs, and that person's life will be in mortal danger.
8. The appellant argued that the Tribunal's purported consideration of this claim was limited to [56] of its reasons in which it acknowledged the "difficult security situation and prevalence of violent offending", but stated that "this risk of harm from criminals in Burundi is something that the Burundian community at large face and can be mitigated by the applicant through modification of his behaviour in so far as taking reasonable precautions like other members of the Burundian society in so far as not overtly displaying any attributes of perceived wealth". The appellant submitted that the Tribunal's reasoning missed the point of the claim. It was not a claim "about wearing fancy clothes or flashy jewellery or overtly displaying any attributes of perceived wealth". It was an imputation of wealth from the bare fact that the appellant would be returning from a rich country. Accordingly, no question of behaviour modification arose. By dealing with the claim through behaviour modification, the Tribunal misunderstood what the claim was actually about.

Minister's arguments concerning ground 2

1. The Minister submitted that the appellant's arguments on the appeal again differed from the arguments advanced before the primary judge. The ground of review below (being ground 3) was that the Tribunal failed to have regard to relevant country information, and particularly the CoI Report. The primary judge dismissed that ground of review, concluding that the CoI Report did not support the claim (at [102]). The Minister observed that the appellant does not challenge that conclusion of the primary judge, and the conclusion was correct. Although the appellant submitted to the Tribunal that his claim to fear harm on account of perceived wealth was supported by country information, and provided such country information to the Tribunal, when analysed the country information did not support the claim. The country information did not indicate that returnees from Western countries were killed, kidnapped or extorted because of their perceived or imputed wealth. Rather, it noted that there were "various forms of distrust" towards returnees, which involved some local residents shouting insults at them.
2. Addressing the appellant's argument as now advanced on the appeal, the Minister submitted that there are three important aspects to the Tribunal's reasoning (at [56]):
3. First, the Tribunal finds that the appellant provided little detail as to how he would be viewed as a rich westerner other than saying that people will think he is rich because he had come from the West. The Minister submitted that, read fairly, this finding is that the appellant had not established through any means, other than his own assertion, that returnees from Western countries are imputed with wealth.
4. Second, the Tribunal finds that the appellant had not provided any evidence as to how he personally would be perceived and targeted as wealthy given his financial circumstances.
5. Third, the Tribunal finds that the appellant could mitigate any risks by modifying his behaviour and taking reasonable precautions.
6. The Minister submitted that the Tribunal's reasoning was responsive to the claim that was made by the appellant. Insofar as the appellant's claim involved a claim of imputed wealth simply by dint of returning from a Western country, the Tribunal's response to the claim was to observe that he had provided little detail to that claim other than assertion. The Minister submitted that the primary judge was correct to conclude that that finding was open to the Tribunal on the material before it (at [102]).
7. The Minister argued that, in the absence of country information supporting the appellant's claim, the Tribunal rationally responded to the claim by pointing out that the appellant had 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". The findings do not reveal that the Tribunal failed to consider the country information relied upon by the appellant.

Consideration

1. I accept the Minister's submission that the appellant has, on this appeal, reframed the arguments advanced before the primary judge. The ground of review below (being ground 3) was to the effect that the Tribunal failed to have regard to the country information relied on by the appellant in support of his claim, and particularly the CoI Report. The primary judge dismissed that ground of review, concluding that the CoI Report did not support the claim (at [102]). The appellant does not challenge that conclusion of the primary judge.
2. On the appeal, the appellant focused on the Tribunal's statement that the appellant could modify his behaviour to avoid being perceived as wealthy. In my view, that raises a new ground of review that was not raised before the primary judge. The appellant cannot demonstrate that the primary judge erred in circumstances where the ground was not raised before the primary judge. The appellant requires leave to raise the new ground, which was not sought. It is also the case that the Minister did not object to the ground being raised. Despite that, I consider that leave is required and I would refuse leave because, for the following reasons, the ground has no prospect of success.
3. I accept the Minister's submission with respect to the manner in which the Tribunal's reasons at [56] should be understood. The Tribunal commences by observing that the appellant provided "little detail" in support of his claim other than asserting that people will think he is rich having come from the West. Read fairly, the Tribunal is observing that there is no independent support for the appellant's claim (that a person returning to Burundi from the West would be perceived as wealthy and targeted for that reason) in the nature of country information. The Tribunal next observes that the appellant provided no (personal) evidence as to how he would be perceived to be wealthy given his present personal and financial situation. The combination of the Tribunal's first two statements is to the effect that there is no evidentiary support for the appellant's claim beyond his assertion. The Tribunal's third statement, which is the focus of challenge on the appeal, concerns the general security situation in Burundi. In that statement, the Tribunal acknowledges the difficult security situation and prevalence of violent offending in Burundi. However, the Tribunal finds that this risk of harm is something that the Burundian community at large face and therefore is not peculiar to the appellant or his characteristics. The Tribunal adds that the risk can be mitigated by the appellant through modification of his behaviour by taking reasonable precautions like other members of the Burundian society. That final observation, which is the subject of challenge, is not focussed on the appellant's claim to fear harm by reason of perceived wealth, which the Tribunal found was not substantiated. Rather, the observation is addressing the claims made by the appellant concerning the security situation in Burundi more broadly.
4. For those reasons, the appellant has failed to demonstrate error in the primary judge's reasons responding to the ground of review raised before her Honour (being ground 3 below). I refuse the appellant leave to raise a new ground of appeal to the effect that the Tribunal misdirected itself in concluding that the appellant could modify his behaviour to avoid being perceived as wealthy. The ground is based on a misreading of the Tribunal's reasons.

Claim to fear harm due to the appellant's criminal record in Australia

1. Appeal ground 3 concerns the Tribunal's consideration of the appellant's claim to fear harm because of his criminal record in Australia.
2. That claim was not included within the appellant's visa application. It was first made by the appellant (in the context of the visa application) in his submission to the Department dated 24 June 2022. Under the heading "Refugee claims", the submission stated that the appellant is at risk of persecution (in the form of death, kidnapping, torture, physical assault, psychological harm, imprisonment, and severe discrimination amounting to persecution) at the hands of the Burundi authorities, armed militias including the youth wing of the ruling government (the Imbonerakure) and non-state actors by reason of, amongst other things, being a returnee deported for criminal convictions.
3. Under the heading "Risk as a result of criminal conviction in Australia", the submission stated: It is submitted that [the appellant'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,
4. 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
5. Under the heading "Refugee Returnees to Burundi", the submission includes the following extract from the United States Department of State Human Rights Report for Burundi released 11 March 2020, which refers to the CoI Report: 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. Burundian nationals who returned to the country after having sought refuge abroad were also targeted, as were young men following travel abroad, who were accused of belonging to or supporting armed opposition groups
6. The claim was repeated in the statement provided by the appellant on 21 October 2022 in response to the Tribunal's invitation to comment made under s 424A of the Act, where the appellant stated: Being convicted in Australia increases the risk of harm to me 45 If people in Burundi become aware of the fact that I have been convicted of crimes in Australia, they will kill me. I have no doubt about this. Stories and rumours spread quickly, often exaggerating and distorting the truth. I will not be able to keep secret the fact of my convictions.
7. People in Burundi do not understand that a sentence that has been served is sufficient punishment for a crime. People there are very judgmental and opinionated. They treat returnees to Burundi with suspicion anyway. They think that the returnees fled Burundi in the first place in order to escape justice after committing crimes during the civil war. If, on top of that, people come to know that I have been actually convicted of crimes in Australia, they would kill me without giving the matter a second thought.

Tribunal's decision

1. In relation to the appellant's claim to fear harm due to his criminal record in Australia, the Tribunal made express reference to the appellant's claim as referred to above. The Tribunal recorded the following assessment and conclusion on that claim (at [57]-[58]): Australian criminal conviction and imprisonment - double jeopardy
2. 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.
3. 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.

Ground of review before the primary judge

1. Before the primary judge, the appellant advanced the following ground of judicial review concerning the Tribunal's consideration of his claim to fear harm due to his criminal record in Australia: 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 [sic] 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.
2. The primary judge expressed the following conclusions with respect to that ground of review (at [113]):
3. 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.

Appellant's arguments concerning ground 3

1. By ground 3 of the appeal, the appellant contended that the primary judge erred by failing to find that the Tribunal did not give consideration to the appellant's claim concerning his criminal conviction in Australia, because the country information did support the appellant's claim, and because the Minister's submission (which the primary judge accepted) that the country information did not refer to the Imbonerakure dispensing justice for crimes committed "outside of Australia" was irrelevant to the claim.
2. The appellant's written submissions commenced with criticism of the Tribunal's consideration of the risk of the appellant facing double jeopardy in Burundi. The criticism of that aspect of the Tribunal's reasons is irrelevant to ground 3 of the appeal. Further, the appellant's written submissions do not explain how the Tribunal's consideration of that risk involved jurisdictional error. The submissions are no more than a criticism of the merits of the Tribunal's decision.
3. More relevantly, the appellant challenged the reasons given by the primary judge (at [113]) for concluding that the Tribunal had given adequate consideration to the appellant's claims.
4. First, the appellant submitted that the primary judge's reasons commence with a conclusory statement that the Tribunal had considered the country information before it relating to persecution of returning refugees who had been convicted of offences outside of Burundi.
5. Second, the appellant submitted that the primary judge's acceptance of the Minister's submission that the CoI Report "does not refer to dispensing justice for crimes committed outside of Australia" was irrelevant. The appellant submitted that the claim was about a fear of the Imbonerakure dispensing justice for crimes the appellant had already committed in Australia, not outside of Australia.
6. Third, the appellant submitted that the primary judge's finding, that 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, was true of the CoI Report dated 21 August 2021. However, in a submission provided by the appellant to the Department on 17 November 2020 (in connection with the appellant's application for revocation of the cancellation of his visa), the appellant had reproduced extracts from an earlier CoI Report dated 6 August 2019. The appellant submitted that the earlier extracts were not expressed with the limitation described by the primary judge. The extracts of the earlier CoI Report reproduced in the appellant's submission dated 17 November 2020 were as follows:
7. 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. …
8. Arbitrary arrests have been carried out by … Imbonerakure … who acted either jointly with the police or independently of them, later handing over those arrested to the police.
9. These arrests were arbitrary, since, in the vast majority of cases, they were conducted without any legal basis, on grounds that are sufficiently vague in national law as to be abused or in breach of established judicial procedure. Moreover, these arrests often involved the use of excessive force. They were also illegal when carried out by Imbonerakure or local administrative authorities, which are not authorized by law to make arrests other than in cases of flagrante delicto.
10. The detentions were arbitrary and often illegal owing to the vague and abusive nature of the charges brought, the absence of the elements of the offences alleged and the failure to respect procedural guarantees and time limits prescribed by law. Prisoners who have served their sentences or who have received presidential pardons have continued to be held arbitrarily, mainly those convicted on political grounds.

Minister's arguments concerning ground 3

1. The Minister observed that the Tribunal expressly identified the claim made by the appellant in its reasons at [57]. The Minister also observed that the Tribunal separately identified a double jeopardy claim, notwithstanding that it was not raised by the appellant.
2. The Minister noted that, in respect of the claim raised by the appellant, the Tribunal referred to country information about a returnee with criminal convictions in Canada who was forcibly returned to Burundi, and who, after arrival, "was released without further incident or being the subject of any harm". The Tribunal then said (at [58]) that: … 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, [the Tribunal] 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.
3. The Minister submitted that this amounts to a consideration, and rejection, of the appellant's claim. The Minister further submitted that the Tribunal rejected the appellant's claim because of country information and the "vague details provided to the Tribunal as to the foundation of [the appellant's] fears as to this claim". The Minister argued that that reasoning was open because the country information did not clearly show that the Imbonerakure targeted those with criminal records outside Burundi and tended to suggest that the targets were opponents of the government. The Minister submitted that the primary judge's conclusion to this effect was correct.

Consideration

1. I accept the Minister's submissions and reject the appellant's submissions. The latter suffers from two flaws.
2. First, the appellant was unable to identify any country information before the Tribunal that supported the appellant's claim. The high point of the country information was the CoI Report. However, neither the version dated 6 August 2019 (extracts of which were reproduced in the appellant's submission to the Department dated 17 November 2020) nor the version dated 21 August 2021 (extracts of which were reproduced in his submission to the Department dated 24 June 2022) supported the claim. The extracts contain no reference to persons returning to Burundi with criminal convictions from overseas. The extracts generally refer to the Imbonerakure acting in an extra-judicial capacity. The earlier extract relied on by the appellant states that prisoners (I interpolate, within Burundi) who have served their sentences or who have received presidential pardons have continued to be held arbitrarily, but that is mainly those convicted on political grounds. The appellant's submissions were notable for their failure to identify any country information that expressly supported the appellant's claim. In those circumstances, the appellant's criticism of the primary judge's finding, that the Tribunal did not fail to consider the country information before it relating to the appellant's claim, is hollow.
3. Second, the appellant's submissions are based (in part) on an obvious editorial error made by the primary judge. The primary judge stated that she accepted the Minister's submission that the CoI Report does not refer to dispensing justice for crimes committed "outside of Australia". The appellant submitted that her Honour's finding was irrelevant because the appellant's claim concerned crimes committed outside of Burundi, not crimes committed outside of Australia. The submission fails to acknowledge that her Honour's reference to "outside of Australia" was obviously intended to be a reference to "outside of Burundi". That was the subject of the appellant's claim and was the matter being addressed by her Honour at that part of the reasons.
4. There is no substance to the appellant's arguments on this ground of appeal and the ground should be dismissed.

Conclusion

1. For the reasons stated above, the grounds of appeal do not identify any error on the part of the primary judge, nor jurisdictional error on the part of the Tribunal. The appeal should be dismissed with costs. I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Bryan.