1401498 (Refugee)

[2016] AATA 4892

1401498 (Refugee) [2016] AATA 4892 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1401498

COUNTRY OF REFERENCE:                  Ethiopia

MEMBER:Filip Gelev

DATE:9 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 09 March 2016 at 12:31pm

CATCHWORDS

Refugee – Protection visa – Ethiopia – Federal Circuit Court appeal – Ethnicity – Eritrean – Political opinion – Ethiopian People’s Patriotic Front/ Arbegnochginbar member – Information gathering activities – Arrest of son – Credibility issues – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 36, 65, 91R, 91S, 499

Migration Regulations 1994, Schedule 2

CASES

Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997)
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Ethiopia, applied for the visa on 7 November 2012 and the delegate refused to grant the visa on 20 January 2014.

3. The applicant appeared before the Refugee Review Tribunal (RRT), differently constituted, on 13 June 2014, and before this Tribunal on 27 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], who claims to be a representative of the EPPF in [City 1, Australia]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

   RELEVANT LAW

5. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

7. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

8. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

9. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

10. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

11. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

12. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

13. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

14. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

15. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

17. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

18. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

19. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in this case is whether Australia has protection obligations in respect of the applicant.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Credibility and the applicant’s health

22. The Tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. As Beaumont J observed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for’.

23. The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraphs 196‑197 and 203‑204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt.

24. However, a decision maker is not required to accept uncritically any or all allegations made by an applicant. Moreover, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

25. As the Full Court of the Federal Court (von Doussa, Moore and Sackville JJ) observed in Chand v Minister for Immigration and Ethnic Affairs (unreported, 7 November 1997):

    Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved. The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another (citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281-282).

26. The Full Court noted that this statement of principle is subject to the qualification explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where they observed that:

    in determining whether there is a real chance that an event will occur, or will occur for a particular reason, the degree of probability that similar events have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.

27. If the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 per Sackville J (with whom North J agreed) at 241. Furthermore, as the Full Court of the Federal Court (O’Connor, Branson and Marshall JJ) observed in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558-9, there is no rule that a decision-maker concerned to evaluate the testimony of a person who claims to be a refugee in Australia may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies. Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.

28. In terms of the applicant’s health and her capacity to give evidence and to participate meaningfully in the hearing, at the October 2015 hearing, the applicant advised the Tribunal that she was well enough to give evidence. However, her representative advised the Tribunal towards the end of the hearing that the applicant was still suffering from anxiety and depression. She said she had a hand-written note from a GP. The representative said she will provide a typed letter from the GP, but the Tribunal has received no letter from a GP or another medical practitioner. Notwithstanding the applicant’s mental health difficulties, set out below, the Tribunal does not accept that the deficiencies in her evidence can be explained by these problems.

29. The Tribunal has considered all the earlier medical evidence indicating that the applicant has some mental health difficulties. A letter, dated 11 June 2014, from [Ms B], states that the applicant is depressed, anxious, isolated and stressed.[1] [Ms B] states that the applicant was on anti-depressants at the time [Ms B] wrote her letter.

    [1] Folio 151 of Tribunal file.

30. On the basis of the medical reports before it, the Tribunal accepts that the applicant has in the past suffered from depression and that she is feeling anxious, isolated and stressed. The letter from [Ms B] expresses no opinion in relation to the underlying cause or causes for the applicant’s mental health problems, except to say that the applicant described the situation in Ethiopia as very, very bad and the government as bad, and she claimed to fear for her life if returned.

31. The Tribunal notes that after the applicant applied for protection, she had a falling out with her daughter in Australia. At the 2015 Tribunal hearing the applicant confirmed that she has not reconciled with her daughter and does not live with her. It is hardly surprising that she feels anxious, isolated and stressed when she in a foreign country, she does not speak the language, she is not in a position to work and she is on bad terms with her only relative in Australia.

32. In a statutory declaration, dated 7 October 2015, the applicant pointed out that she had applied for a visa almost three years ago, that she feels “very bad” about having to wait for so long for a decision and that the stress is affecting her mentally and physically.

33. The Tribunal finds that the applicant’s mental health problems are not caused by any harm or any past events in Ethiopia, but by the prolonged separation with her family in Ethiopia and her isolation in Australia. The Tribunal is not bound by what a medical professional concludes as being the reason for an applicant's symptoms. In this case the Tribunal's own concerns about the applicant's credibility have caused the Tribunal to conclude that to the extent that the report tends to corroborate the applicant's account of the events underlying her protection claims, it is to be given little weight.

    Country of reference

34. Based on the applicant’s oral and written evidence and her passport, sighted by the Tribunal, the Tribunal accepts that she is an Ethiopian national and has assessed her claims for protection against that country for the purposes of both ss.36(2)(a) and (aa).

    Background

35. The applicant was born on [date]. She has one daughter in Australia, one son in [Country 1], two sons in Ethiopia, and one niece in Ethiopia who the applicant has “accepted as own daughter”.

36. The applicant has previously visited her daughter in Australia twice – in the periods December 2008-March 2009 and December 2010-February 2011.

37. According to the 2014 statutory declaration the applicant’s daughter in Australia was unhappy about the applicant’s involvement in politics in Ethiopia and the fact that the applicant applied for protection in Australia. She thought the applicant was foolish and placed her own family in danger. After the raid on the applicant’s house in Addis Ababa, the applicant had to leave her daughter’s house in [City 1, Australia]. At the time of the Tribunal hearing in 2015 the applicant had not returned to live with her daughter, although she said that with the help of the community their relationship had improved somewhat.

    Claims

38. The applicant’s original claims for protection are set out in a statutory declaration dated 13 December 2012. She claimed that she fears harm if she were to return to Ethiopia because of her actual or imputed race/ethnicity and because of her political opinion.

39. The applicant’s father was born in Asmara, what is today the capital of Eritrea, but which was part of Ethiopia at the time. Her mother was born in [a town], Ethiopia. The applicant considers herself to be Ethiopian, many in Ethiopia consider her to be Eritrean.

    Events in Ethiopia prior to 2011

40. The applicant said in the 2012 statutory declaration that she had been discriminated in the past as a result of being considered Eritrean. She gave specific examples: a hairdresser she used to frequent broke her glasses and told the applicant to “go back” to Eritrea; at church people ask her what she is doing there, that is, in Ethiopia; even her husband is “suspicious” and thinks she might go “back” to Eritrea. She could not get a job and had to rely on her husband, who has his own [business].

41. In a statutory declaration dated 5 June 2014 the applicant stated that after the war between Eritrea and Ethiopia started, people stopped coming to her [business]. The applicant went bankrupt and she had to shut down the [business] after about 6 months. Her husband still runs a [business] in [Town 1]. He has had this business for about 15-16 years, but recently his difficulties had increased because the applicant is in Australia. She believes it may be known that she has sought asylum in Australia. As a result people fear being associated with her husband and do not patronise his businesses.

42. In the 2014 statutory declaration the applicant also described protesting against the rule of Emperor Haile Selassie (who ruled until 1974) when she was a school student and distributing pamphlets for the Ethiopian People’s Revolutionary Party when the emperor was overthrown. The EPRP was founded in 1972 and originally it aimed to overthrow the monarchy and in the early 1970s engaged in distributing pamphlets in Ethiopia. The current ruling party outlawed the EPRP in 1991.[2] She believes in democracy and fraternity, that the current government is “very bad” and that Ethiopian needs to be united rather than divided along ethnic lines as is the case currently. She said that in Africa freedom and democracy have never been achieved without demonstrations and revolution and she is committed to continue the struggle to achieve these aims.

    [2] “Overview of the History of the EPRP, Ethiopian People’s Revolutionary Party (EPRP), accessed at on 8 February 2016.

1. According to the applicant’s statutory declaration of 5 June 2014, she had been arrested twice in the past. The first time was during the rule of Derg or Dergue (the official name of the ruling party was Coordinating Committee of the Armed Forces, Police and Territorial Army) which governed Ethiopia from 1974 until 1991.[3] The applicant was about [age] years old at the time which means this occurred around 1987. She went on a pilgrimage with her [friend]. She was taken to a police station, accused of holding illegal meetings and held for 15 days and fined. Later the applicant heard that her friend [was] killed and her body dumped by the roadside.

   [3] ‘Mengistu is handed life sentence’, BBC, 11 January 2007, accessed at on 8 February 2016.

2. In the 2014 statutory declaration the applicant describes how she was arrested again in the year 1991 of the Ethiopian calendar, that is, in 1998-1999 in the Gregorian calendar.[4] She was held for five days and repeatedly raped by a prison [captain]. She fell pregnant and had to have an abortion, because if her husband found out about the pregnancy it would have destroyed their marriage. She said that the war between Eritrea and Ethiopia was going on at that time and the applicant thought that she may have been targeted because she was known as the daughter of an Eritrean and Eritrean people [frequented] her [business], thus the government may have thought that she was “involved with the Eritreans”. The Tribunal notes that there was a war between Eritrea and Ethiopia in 1998-2000.[5]

   [4] N. Winfield, “UN hints at sanctions if Eritrea and Ethiopia do not end fighting”, The Independent, 13 May 2000, accessed at on 8 February 2016.

3. The present Tribunal asked the applicant at the hearing if she remembered the first time she was arrested in the past. She said it was about 25 years ago, before Eritrea became independent. She said it was under the old government and she thought the reason was because she was considered to be Eritrean. She said she was detained for about 15 days.

4. In relation to the second time she was arrested, she told the Tribunal that it was during the current government, but she did not remember the exact date, nor the reason for the arrest. She was detained for about five days. She thought that the arrest happened after the birth of her [son] ([date] according to Part C).

   EPPF

5. The applicant said in her 2012 statutory declaration that she joined an opposition group called the Ethiopian People’s Patriotic Front or EPPF in 2011 because of her personal beliefs. She said that there were about 5 opposition groups, including the EPPF, which are illegal in Ethiopia: the EPPF, the Oromo Liberation Front, Ginbot 7 and the Ogaden Liberation Front.

6. There is limited independent country information about the EPPF. The International Crisis Group (ICG) described the EPPF in 2009 as a ‘minor rebel group’ that operates in the northern Amhara and Tigray regions of Ethiopia.[6] The International Federation for Human Rights similarly described the EPPF in 2007 as an ‘armed opposition group’.[7] According to the Terrorism Research and Analysis Consortium[8] (TRAC), the EPPF’s stated aim is ‘to bring an end to the TPLF tyranny and oppression through armed struggle and bring about unity, justice, democracy, and equality to the Ethiopian people’.[9] The TPLF (Tigrayan People’s Liberation Front) is a political party that forms part of the ruling political coalition of Ethiopia, known collectively as the Ethiopian People’s Revolutionary Democratic Front (EPRDF).[10]

   [6] International Crisis Group 2009, Ethiopia: Ethnic Federalism and Its Discontents, 4 September, p.26 < Accessed 6 June 2013 <CIS25622>

   [7] International Federation for Human Rights 2007, Ongoing arbitrary detention of five leaders of the Ethiopian Teachers’ Association - ETH 001 / 1007 / OBS 133, 23 October < Accessed 12 October 2015 <CXE90FC0120250>

   [8] Created by The Beacham Group, LLC, Terrorism Research & Analysis Consortium (TRAC) is a resource for the study of political violence of all kinds. In cooperation with a team of 2800 experts, TRAC gathers information for exploration of this topic by faculty, scholars, students, government and defense professionals, as well as the general public. < Terrorism Research and Analysis Consortium n.d., Ethiopian People’s Patriotic Front (EPPF) < Accessed 12 October 2015 <CXBD6A0DE14666>

   [10] ‘Ethiopia’ 2014, in Political Handbook of the World, pp.458-70 < Accessed 12 October 2015 <CISBDC679D10125>

7. The EPPF was founded in Eritrea and is reportedly supported by the Eritrean government.[11]’[12]

   [11] Terrorism Research and Analysis Consortium n.d., Ethiopian People’s Patriotic Front (EPPF) < Accessed 12 October 2015 <CXBD6A0DE14666>; Pham, JP 2007, Ethiopia: Regional Dimensions of the Human Rights and Humanitarian Situation in the “Ogaden,” Somalia, and Beyond - Testimony of Dr. J. Peter Pham, United States Congress, 3 October, All Africa < Accessed 12 October 2015 <CXE90FC0120251>; ‘Ethiopia’ 2014, in Political Handbook of the World, pp.458-70 < Accessed 12 October 2015 <CISBDC679D10125>

   [12] Pham, JP 2007, Ethiopia: Regional Dimensions of the Human Rights and Humanitarian Situation in the “Ogaden,” Somalia, and Beyond - Testimony of Dr. J. Peter Pham, United States Congress, 3 October, All Africa < Accessed 12 October 2015 <CXE90FC0120251>; ‘Ethiopia’ 2014, in Political Handbook of the World, pp.458-70 < Accessed 12 October 2015 <CISBDC679D10125>

8. During 2006 and 2007, the EPPF was involved in armed attacks against Ethiopian government infrastructure and personnel.[13] A 2009 report by Jane’s,[14] states that after peaks of activity in 2002 and 2006, the EPPF resumed its military activities in 2008. The report further states:

   The EPPF directs its activities primarily against Ethiopian government military, police and security forces, which it considers to be tools of the EPRDF and especially the TPLF. Offices of the civilian administration, which is seen as part and parcel of the system of oppression the EPRDF allegedly installed, as well as civilian administrators known to be anti-EPPF, are also targets for attacks.[15]

   [13] Pham, JP 2007, Ethiopia: Regional Dimensions of the Human Rights and Humanitarian Situation in the “Ogaden,” Somalia, and Beyond - Testimony of Dr. J. Peter Pham, United States Congress, 3 October, All Africa < Accessed 12 October 2015 <CXE90FC0120251>; Country of Origin Research and Information 2010, CORI Country Report: Ethiopia, January < Accessed 12 October 2015 <CIS18363>

   [14] IHS Jane’s states on its website that Jane’s Intelligence Review provides ‘unbiased intelligence and analysis on the most critical and decisive international security issues and country risks’. < A full copy of this report could not be located; this extract was cited in: Country of Origin Research and Information 2010, CORI Country Report: Ethiopia, January < Accessed 12 October 2015 <CIS18363>

9. In 2015, the EPPF underwent a series of mergers with other armed groups and has participated in armed activity against Ethiopian security forces.[16] The EPPF and Ginbot 7 announced that the two groups would merge in January 2015, and would be collectively known as Arbegnoch Ginbot 7 for Unity and Democracy Movement (AGUDM).[17] Ginbot 7 is an armed opposition group that was designated as a terrorist entity by the Ethiopian government in 2011[18] and remains classed as a terrorist group in 2015.[19] In May 2015, the newly formed AGUDM coalition signed a cooperation agreement with four other armed opposition groups, agreeing to join forces against the Ethiopian government.[20] In the press statement regarding this agreement, the groups explain their intention is to ‘save the country and its people from the looming danger’.[21]

   [16] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 12 October 2015 <CXBD6A0DE14660>; ‘Ginbot 7 and EPPF Military Wings Merged’ 2015, TesfaNews, 10 January < Accessed 14 October 2015 <CXBD6A0DE14667>; Mpuga, D 2015, ‘Ethiopian Opposition Group Threatens Armed Resistance’, Voice of America, 25 July < Accessed 13 October 2015 <CXBD6A0DE14665>

   [17] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 12 October 2015 <CXBD6A0DE14660>; ‘Ginbot 7 and EPPF Military Wings Merged’ 2015, TesfaNews, 10 January < Accessed 14 October 2015 <CXBD6A0DE14667>; Mpuga, D 2015, ‘Ethiopian Opposition Group Threatens Armed Resistance’, Voice of America, 25 July < Accessed 13 October 2015 <CXBD6A0DE14665>

   [18] United States Department of State 2013, Human Rights Report for 2012 – Ethiopia, 19 April, Section 2a < Accessed 7 June 2013 <OG0DB543860>; Freedom House 2013, Freedom in the World – Ethiopia, 9 May < Accessed 7 June 2013 <CX307497>

   [19] Mpuga, D 2015, ‘Ethiopian Opposition Group Threatens Armed Resistance’, Voice of America, 25 July < Accessed 13 October 2015 <CXBD6A0DE14665>

   [20] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 12 October 2015 <CXBD6A0DE14660>

   [21] ‘Five Armed Ethiopian Opposition Forces Agreed to Unite’ 2015, TesfaNews, 23 May < Accessed 14 October 2015 <CXBD6A0DE14656>

10. A spokesperson for the merged group, Tadesse Biru, was quoted in a news article in July 2015 stating that the intention of the group is to combine ‘civil disobedience’ with ‘non-peaceful resistance’. Biru stated:

    … a non-violent solution, he said, has been closed by the government in Ethiopia, and the group has been forced to consider all possible avenues including civic disobedience and armed resistance.

11. Tadesse emphasized, however, that the group is still open to a non-violent settlement. “We are always open to possibilities of a peaceful resolution. The group emerged from a peaceful movement but now we are forced to consider armed resistance. It’s not our choice but there is no other feasible option to challenge the government in Addis Ababa.”[22]

    [22] Mpuga, D 2015, ‘Ethiopian Opposition Group Threatens Armed Resistance’, Voice of America, 25 July < Accessed 13 October 2015 <CXBD6A0DE14665>

12. In July 2015 the AGUDM claimed to have conducted military action against the Ethiopian army.[23] According to the ICG, the AGUDM was involved in a military operation against Ethiopian police forces:

    Newly-formed armed opposition group “Arbengoch Ginbot 7 Unity and Democratic Movement” (AGUDM) 2 July took [sic] first military action in Western Tigray state, bordering Eritrea; some 50 reported killed. PM Desalegn confirmed clashes, warned authorities will take direct military action against Eritrea for alleged support to Ethiopian armed opposition groups. Federal police [sic] 10 July said counter-attack launched against group, killing 30.[24]

    [23] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 12 October 2015 <CXBD6A0DE14660>

    [24] International Crisis Group 2015, Ethiopia: 3 Aug 2015, 3 August < Accessed 14 October 2015 <CXBD6A0DE14664>

13. A news article from EthioSomali[25] reported that while the AGUDM claimed to have inflicted heavy casualties on the Ethiopian army during the above operation, a government spokesperson dismissed the claims as ‘fictitious’.[26] According to Ethiopian news agency Ayyaantuu News,[27] the discrepancy between the government spokesperson dismissing the military activity and the prime minister confirming the clashes is an illustration of internal political tension within the ruling coalition.[28]

    [25] EthioSomali is a news website owned by the Ethiopian Somali Democratic Council Civil Society. < ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 12 October 2015 <CXBD6A0DE14660>

    [27] Ayyaantuu News is an online Ethiopian news agency. < ‘EPRDF Split Over Potential Intervention in Eritrea’ 2015, Ayyaantuu News, 18 July < Accessed 15 October 2015 <CXBD6A0DE14654>

14. The applicant said in her 2012 statutory declaration that she had decided that the only way to change the government is by force, and the EPPF is an armed group. She said the EPPF operates between the Eritrean and Ethiopian border, in the Seman (Simien) mountains. They attack Ethiopian government troops “using hit and run system” and then they cross the border and go into Sudan.

15. In terms of the manner in which she joined the EPPF, the applicant said in the 2012 statutory declaration:

    I have a cousin, [Mr C] [sic], who fights with the EPPF. He is my cousin on my mother’s side. He is Tigray. We were very close before I joined the EPPF. He recruits members and spies on the Ethiopian government. He sent various people to come and stay with me and my family. … I thought they were just visitors, but when they were there, they would ask me lots of questions about my political views and what I thought of the government. I always complained to them about how bad I thought it was. They reported this information back to my cousin.

    In around January 2010, I’m not sure of the exact date, my cousin sent me a messenger, a trusted person from the EPPF, with a letter containing a family photo of my cousin. The letter had his hand writing and signature and asked if I could help as a spy for the EPPF. [Mr C] wanted me to spy on my other cousin, who works for the Ethiopian Government military. I told him that I had to have some time to make a decision.

16. After thinking about the issue for about two months, the applicant decided to join the EPPF. She did not need to sign any application form, but she paid a membership fee of between 1000 Birr and 500 Birr a month. She gave the money to [an EPPF messenger], who then took it to Sudan. She also sold jewellery worth about 20,000 Birr and gave some of the proceeds to the EPPF.

17. The man the applicant was asked to spy on was her cousin [who was a colonel]. When she joined the EPPF she would either get the colonel to talk to her or she would overhear him on the phone when he was talking to his comrades. In her 2014 statutory declaration the applicant stated that she would listen to conversation that the colonel was having in person with other people who were visiting at the same time as the applicant.

18. According to the 2014 statutory declaration she could help “the cause” not only by obtaining information from her cousin the colonel, but also by overhearing conversations of people in her husband’s business. Military people would visit her husband’s [business] and they would talk [loudly]. They would not take any notice of the applicant.

19. According to the 2012 statutory declaration, in 2010 the applicant also helped identify potential supporters of the EPPF. Sometimes at gatherings or at church, people would share their anti-government feelings. The applicant would then pass on their names to the EPPF for potential recruitment. She told the RRT that sometimes in social groups or in church, some people would be against the government. She would collect the names and pass them on to the EPPF. She did not know what the EPPF did with the names.

20. In her 2014 statutory declaration the applicant described her sourcing of information from her cousin, the colonel, thus:

    …I was listening to some exchanges of information about the war, say for example I heard that the places where the war took place, in Armachiho in north Ethiopia, I told [Mr C] what they said about the war. I heard there were some problems around the borders towards Eritrea and they also mentioned that a certain amount of soldiers would be there. I heard about the readiness of the EPPF to attack and when they were coming with the Eritrean soldiers.

21. She said in the 2012 statutory declaration that she would then pass the information she gathered to the EPPF. For example, she would hear about the types of guns and ammunition “they were taking with them”. On one occasion she obtained information in relation to troop movements in a part of Ethiopia called Gonder, a big city near the border:[29]

    The EPPF were fighting on that side, but they didn’t know the Ethiopian government was going around the back side. From being present in my cousin’s home, I learnt that the Government was coming in that direction, with tanks, anti-aircraft and foot soldiers.

    [29] According to Google maps there is a city called Gondar, 730km north of Addis Ababa.

22. When asked at the RRT hearing what kind of information she collected from the colonel, she said she would hear him say that the “enemies are coming through Gondar” and “sometimes they are coming through Balle” and she heard “all this information” when the colonel is talking. She said the colonel’s wife would also give her information.

23. The present Tribunal asked at the 2015 hearing how many battles or instances of fighting there were that she was aware of between the government and the EPPF. She replied that she remembered there were some documents relating to the area where there were activities and the losses that they suffered or the gains that they made and also they were hopeful that they would achieve the goals that they set for that particular activity or any other future activities.

24. She was asked again how many battles between the EPPF and the government she remembered. She said that there were no fully fledged wars, but small skirmishes, where the EPPF would go “in and out”. She said it happened, for example, near places such as Armajaw and Gonder.

1. The Tribunal asked whether the fighting involved lightly armed troops or also tanks, anti-aircraft guns or airplanes. She said there were no such “wars”, because the EPPF were not capable of those, but most of the EPPF’s activities were political mobilisation. When asked about the 2012 statutory declaration where she had claimed she reported that there was the use of tanks or anti-aircraft guns, the applicant said that the area is on the border with Eritrea and there was ongoing conflict there, and in addition there were opposition groups other than the EPPF also operating there. It means that when the government is sending troops and equipment, it may not necessarily be about the EPPF – it may be operations against Eritrea or other opposition groups.

2. At that stage the applicant’s representative intervened and suggested that the applicant’s evidence was that the EPPF did not have tanks, guns and heavy military equipment, rather than that the government did not use such equipment against the EPPF. When the Tribunal invited the applicant to confirm that was what she was saying, she replied that indeed the EPPF did not have such equipment and the Ethiopian government has “more ammunitions, planes and such things”.

3. According to the 2012 statutory declaration “code” was used in order for the applicant to be able to ascertain that an EPPF person is calling her. Once she was satisfied that it is an EPPF person, she would meet this person at a [location] and relay the information that she had collected from her cousin.

4. At the RRT hearing the applicant again referred to the use of code, but in a different manner. She told the RRT that she would use a code to relay information. For example, when she wanted to tell the EPPF that the military had send a certain number of soldiers, she would call and tell the EPPF “this number of sheep” had been sent.

5. She told the present Tribunal that a code word would sometimes be used to alert the EPPF to the fact that she was calling or to tell the EPPF actual information she had gathered e.g. she would use the word goats to denote soldiers with light equipment whereas cows would mean that there were troops with more heavy equipment.

6. When asked if she had any code words for military equipment such as airplanes, tanks, armoured vehicles, or canons, she replied that she had never seen any military activities with airplanes and these things, although she had some information about “it” and transmitted “it”, but her duty was to observe “these things” and relayed the information to them so usually the ones with “bigger ammunition” and equipment would be described as cows; while the lesser ones would be described as goats, but she did not know if they were going to a specific place or for a specific purpose.

7. The applicant said in the 2012 statutory declaration that she did not have an EPPF membership card because it would be “suicide to be found with something like that in Ethiopia”. However, she did keep some information that [the] EPPF messenger, gave her, including a photo of her and [Mr C], copies of letters she sent to her cousin with the names of possible recruits and a record she kept of the money she donated to the EPPF. It was hidden in a “jar in the ground”, but when the authorities came they found it. She said that she kept it because she was hoping that one day “when we won, it would form part of history”.

8. She told this Tribunal that the authorities had seized a lot of documents hidden in a clay pot, covered with a massob (a colourful ornamental covering). The applicant was asked why the 2012 statutory declaration stated that the jar was “in the ground”. She said it may have been a bad interpretation. She said the pot was above ground, very big and normally used for beer.

9. The Tribunal asked what the documents in the jar were. She said that she would receive brochures from the EPPF, objectives and aims of the movement and some of the documents even had pictorial representations. Most of the documents were developments such as the number of people mobilised and any operations they had. She said it was a habit that she kept copies of notes and important documents. She said she would keep her original notes, and she would use the notes to write letters for the EPPF.

10. The Tribunal invited her to enumerate what documents she placed in the pot. She said some of them were letters she sent, some letters she received, some were about “the developments that were occurring in terms of their activities such as their successes and failures in terms of their mobilisations”. There were also brochures about the EPPF’s aims and objectives and such things.

11. Some of the documents were her notes, observations or diaries she was keeping, the trends of “our movement”, and everything she considered important. Some of the documents were brought to her “like the kind of replies, if they needed, or any other information, including names” that she needed. She referred to updates that the EPPF sent her “including the activities they were doing, the updates, like if there was an attack or if there was any activity in terms of mobilisation or any other thing”.

12. At the October 2015 hearing this Tribunal asked the applicant why she had not joined the EPPF earlier than 2010. She said that was a good question, but prior to then she had hoped that things would improve. Instead they kept deteriorating. The Tribunal noted that it has to consider whether it accepts that the applicant joined the EPPF when she was almost [age] years old rather than earlier, but then, despite feeling strongly about her political views when she came to Australia, she did not engage with the EPPF. She said she hated the government which had separated her from her son for 12 years. The applicant said that she did not necessarily have the opportunity to join the EPPF earlier. She said she was a woman and the Tribunal needs to consider that she was trying to raise her children and that life is difficult in Ethiopia, a Third World Country. She then contradicted herself by saying that it did not matter how old you are, what sex you are, how educated you are, you can join the fight against the government.

13. At the end of the Tribunal hearing it was submitted that the applicant suffers from anxiety and depression in Australia and that is why she is not involved with the EPPF. The other reason is that she is concerned with the safety of her family in Ethiopia. The representative advised that continuing involvement with the EPPF may cause her further problems to her family in Ethiopia. She had seen the damage her activities had done to her family. Her instinct was then to stop being involved with the EPPF.

    Events after the applicant came to Australia

14. According to the 2012 statutory declaration, on 23 September 2012 the applicant contacted her husband by phone. He hung up on her. She was very shocked and called her son. He told her that the Ethiopian Federal police had searched the house five days earlier. They found the EPPF documents she had hidden. They beat her children and took them and her husband to a nearby police station. They cautioned and released the children but kept her husband for two days.

15. During the course of the same phone call her son also told her that her cousin [Mr C] had been arrested as well. He told her that five other people, EPPF members like the applicant (not EPPF fighters) had also been arrested. He knew this from his father (the applicant’s husband) who had seen them in prison.

16. Afterwards her husband called her. He was very angry. He asked her if she was involved in politics and she admitted to him she had been. He hung up on her and she has not spoken with him since.

17. According to the 2014 statutory declaration the applicant’s husband was at that time still angry with her but they were talking occasionally. He told the applicant that the authorities were looking for her. Her son [Mr D] had been arrested – the applicant said she did not know the exact reason why – and had spent a night in prison.

18. In her statutory declaration of 7 October 2015, she said that since the RRT hearing her family situation had changed: “They all gone their own ways and are scattered”. She had not spoken to her children since they moved out of the family home, they live in different places but she does not know where. She last spoke to her son [Mr D] more than a month earlier. She cannot contact him, because she doesn’t know where her children are living.

19. In relation to her son [Mr D] the applicant stated in the 2015 statutory declaration that he had not “participated” in the election in May 2015. When it becomes known that he refused to vote, he will be targeted by the authorities. She is worried that he may have gone to Syria or Libya.

20. Her mother too has moved out and the applicant doesn’t know her whereabouts. The applicant used to speak to her brother [in] [Country 2] about her family: “He speaks to our mother and that’s how I know about my children.”

21. She was told by her brother over a month ago that the family in Ethiopia had moved out of the house. She could not contact them, because she only knows the landline number at the house where they no longer live. Her brother told her that the children moved out, because they were “afraid of the government forces in the area”.

22. The applicant had recently spoken with her husband. He is now living in [another town]; he left his business in [Town 1], because he was afraid of being arrested again.

23. She told the present Tribunal her son may have gone to “Arab country”. She last spoke to her children about 2 months ago. They had to move because they had problems. The Tribunal asked what problems her children had. She said that [Mr D] had been politically active and he had been to prison once or twice. He did not vote in the last elections. He used to tell her that in “the aftermath of the elections” the authorities would come and ask questions, including about the applicant’s whereabouts. The applicant insisted that all the family members who had remained in Ethiopia, including her elderly mother, had had to move.

24. The Tribunal asked the applicant to confirm her claim that her children and mother had not contacted the applicant (or her brother in [Country 2] or her son in [Country 1]) to advise where they had move to or where they were going. The applicant said that her brother is trying to contact them and he may be able to establish contact with the applicant’s mother, but so far he has been unsuccessful. Her son in [Country 1] has not had any contact with them, but he was not in regular contact with them anyway.

25. She told the Tribunal that her husband used to live in [Town 1], but at present she was not sure. She said that until 2 months ago her children were living in Addis Ababa. Her husband was working in [Town 1] and commuting between [Town 1] and Addis Ababa about once a week. The applicant said that she last spoke to her husband about a month after her children disappeared. She said that she and he were not on very good terms. He blames her for everything that has happened with the government. When asked if her husband may have disappeared as well, she said that he was having problems as well. The information she has is that he is no longer living in [Town 1].

26. The Tribunal tried to call the applicant’s brother in [Country 2] in order to take evidence from him using a number provided by the applicant. The Tribunal tried to call twice but there was no answer.

27. At the hearing the Tribunal said it might have difficulty accepting that all of the applicant’s children and her mother would go into hiding, and not make any contact with the applicant, even though only one of them had an adverse political profile with the government.

    [Mr A]

28. In the 2012 statutory declaration the applicant said that about five days after talking with her family and learning about the problems her family faced and [Mr C]’s arrest, she contacted a man called [Mr E], an Eritrea based member of the EPPF. She had his number from [Mr C] when she was still in Ethiopia. [Mr E] in turn passed on her details to a man called [Mr A], a member of the EPPF in [City 1, Australia]. About three days later [Mr A] organised to meet the applicant [in] [a City 1, Australia suburb]. He gave her “morale and $200” from his own pocket. He told her that he could get her a letter showing that she is a member of the EPPF. Another ten days later he contacted her with a letter showing that she was a member of the EPPF.

29. The applicant has provided two letters in support of her claim to be a member of the EPPF. Both letters have a colourful header with a lion and the words Ethiopian People Patriotic Front in the middle of the header.

30. The first letter is dated [October] 2012. Originally, together with the application, the applicant provided a black and white copy of the letter in Amharic, without an English translation.[30] Subsequently she provided what appears to be an original of the same letter and a translation into English.[31] The letter is dated [October] 2012 and it states that the applicant has been working as a member of the EPPF from [date]/04/2011 until now. The applicant “provides high contributions, such as money and ability, to the Front’s aim to be successful in different ways without threatening or abusive outcomes.” The letter further states that at present, while in another country, she is participating in activities for the success of the EPPF’s plan. The letter does not include an address or telephone number.

    [30] Folio 32 of DIBP file.

    [31] Folios 82 and 81 respectively of DIBP file.

31. The second one was provided to the RRT. It is dated [January] 2014 and states that the applicant was supporting the Front in “different ways in hidden” and she is still “contributing her share as supporter for our Front”. It purports to be signed by [Mr F], [an official of EPPF]. In the footer of the letter, there is a postal address in Asmara, Eritrea, a telephone and a fax number, an email address and a [website].

32. [Mr A] gave evidence to the RRT. He said that he was a representative of the EPPF in [City 1, Australia]. He said that he speaks with [Mr E] 4-5 times a week and he first heard about the applicant in a telephone conversation with [Mr E].

33. [Mr E] told [Mr A] that the applicant was a member of the party and that she was experiencing financial difficulties. [Mr A] contacted the applicant, organised to meet her in [a City 1, Australia suburb and gave her some money. He said that the applicant told him that she could not return to her homeland and that she had nobody here (in Australia). She did not say why she feared returning to Ethiopia, but he suspected it was because of the EPPF.

100.   [Mr A] told RRT that he had been living in Australia for 23 years. He became “really active” in the EPPF around 2000; prior to that he was a member but not as active.

101.   The witness said that [Mr E] used to be [an official of EPPF]. He then moved to another position and was replaced by [Mr F], who wrote the letter of [January] 2014.

102.   He was asked whether [Mr E] had given him any further information about the applicant’s activities in Ethiopia. He said that [Mr E] had not, because [Mr A]’s responsibility is [City 1, Australia], but the ruling government in Ethiopia knows of the applicant’s activities and therefore she would be at risk on return.

103.   He gave evidence that he and the applicant have had little contact since their first meeting. According to his evidence the only further contact they have had relates to EPPF letters that the applicant is a member. Around December 2012 (as far as the witness could recall), the applicant called him to tell him that the email from [Mr E] did not include an original EPPF letter, and that she would like to get an original letter from the EPPF for her. About a year later the witness travelled to Eritrea and returned with an original letter in support of the applicant.

104.   In relation to the witness, the present Tribunal said at the hearing in October 2015 it had no evidence that the witness was in fact a member of the EPPF. The Tribunal said that if it had “some corroborating evidence” that [Mr A] is with the EPPF, it would have remitted the matter “on the papers”. The Tribunal clarified that it means not any evidence but sufficiently probative evidence. The Tribunal asked the applicant whether if it contacted the EPPF office in Asmara, they would know about her and [Mr A]. The applicant said that she would be happy for the Tribunal to contact that office. The Tribunal pointed out that it would be the middle of the night in Asmara at the time of the hearing and the office would be closed; hence there was no point in trying to call that office during the hearing.

105.   While the Tribunal was discussing what interpreter it should use if it were to call the Asmara office of the EPPF in the future, the applicant’s representative said she had concerns that if the Tribunal rang the office and they heard someone speaking with a foreign accent asking whether this is the EPPF, they might be too afraid to confirm that it is the EPPF.

106.   The Tribunal said it would be prepared to contact the EPPF after the hearing. The Tribunal gave the representative time to establish contact with the EPPF and let the Tribunal know by 13 November 2015.

107.   The Tribunal said that it might be best to email, because a telephone call made after the hearing would have to be recorded by the Tribunal and if there is adverse information it would have to be put to the applicant for comment.

108.   In submissions to the Tribunal dated 16 November 2015, the representative stated that she had spoken with the Arbegnochginbar office in Addis Ababa [sic] and the Tribunal could either email or telephone the EPPF/ Arbegnochginbar. She provided evidence that [Mr A] had travelled to Eritrea and back to Australia and she offered to provide evidence that [Mr A] was recognised as a refugee in Australia. She also asserted

[Mr F]’s direct association with [Mr A] is evidenced by the attached email sent from [Mr F] to [Mr A] [in] June 2015, which attaches an EPPF thank you letter. This email was forwarded directly to my email address [by] myself and [Mr A] when we met [in] November 2015 at my the [refugee welfare agency]… [Mr A] has hundreds of emails between himself and [Mr F] in his email inbox. Many of them contain highly sensitive information…

109.   The email in question is dated [June] 2015. It originates from the email address of [Mr F] and it is addressed to [Mr A]. The email was then apparently forwarded to the applicant’s representative’s email address [in] November 2015. The body of the email contains no text. The email contains a “jpg” file attachment, which is a scanned letter written in what appears to be Amharic, but with the EPPF logo in English. The Tribunal was not provided with an A4 size printout of this jpg document, but only with the small 5cm² “tile” that appears in the body of the email. The Tribunal is not aware of the contents of the letter. The email itself does not state that [Mr A] or the applicant is a member of the EPPF.

110.   On 20 November 2015 the Tribunal sent an email to the email address [deleted] with a list of 7 questions.

Dear [Mr F]

APPLICATION FOR REVIEW

I am writing in relation to an application to this Tribunal made by an Ethiopian national.

[Mr A] is supporting the case of this visa applicant. [Mr A] and the other person (the visa applicant) claim they have been involved with the EPPF or Arbegnochginbar.

1.     Could you please state your role in the EPPF and Arbegnochginbar and how long you have been acting in that role?

2.     Could you please confirm whether you know [Mr A]?

3.     If yes, could you please state his role in the EPPF/Arbegnochginbar?

4.     Could you state whether or not you are in regular contact with [Mr A]?

5.     Could you state whether or not you wrote a letter dated [date]/01/14 confirming that another person is a member of the EPPF/ Arbegnochginbar, and that you gave that letter to [Mr A] when he was visiting Eritrea?

6.     If yes, could you provide the name of this person and state what this person has done for the EPPF/ Arbegnochginbar?

7.     Please add any other comments you have about [Mr A] or about the other person.

Please reply to [email protected].

111.   As of the date of the decision, the Tribunal has not received a response to the email. On 3 December 2015 the Tribunal wrote to the applicant’s representative to advise that no response had been received as yet. In that correspondence, the Tribunal accidentally misspelt the email address to which it said it had sent its questions.

112.   On 10 December 2015 the representative wrote back and suggested that the Tribunal may not have received a response, because it sent the email to an incorrect email address.  

113.   On 21 January 2016 the Tribunal confirmed that it had sent the 10 November 2015 email to the correct email address.

114.   The Tribunal gave the representative and the applicant until 28 January 2016 to comment on the absence of a response from the EPPF.

115.   On 27 January 2016, the representative sought an extension of time until 1 February 2016. On 5 February 2016 the Tribunal wrote to the representative and noted that nothing further had been received. On 5 February 2016, the representative wrote back to the Tribunal and relevantly stated:

Thank you for your email. I apologise for my lack correspondence to the Tribunal given the lapsed due date for any further submissions has passed. 

We have been attempting to ascertain why the Tribunal's email to  [deleted] was not responded to. We have spoken again with the Applicant's witness, [Mr A], who is in frequent contact with the staff at Arbegnochginbar who check that email account. We have hypothesised that perhaps the email went into a spam folder and I have contacted the [email address] requesting that they check their spam folder. If the Tribunal is willing to provide the Applicant an additional 2 weeks before making a decision, we might be able to ascertain what the issue is that has prevented a response and further confirm [Mr A]'s involvement with the Arbegnochginbar. 

We note, however, that this evidence is not required to establish the Applicant's real chance of persecution and refer to all previous submissions in support of our contention that the Applicant is absolutely owed protection in Australia. It is clear from the evidence provided in our previous submission and it's attachments, dated 16 November 2015, that [Mr A] is involved with the Arbegnochginbar. 

116.   While the Tribunal did not expressly accede to that request, it has waited for a further month before finalising its decision.

117.   On 19 February 2016 the applicant’s representatives contacted the Tribunal to request a letter in relation to the applicant’s entitlement to Medicare. The representatives did not mention that the Tribunal can expect any further evidence in support of the claim that [Mr A] and the applicant are, or have been in the past, members of the EPPF / Arbegnochginbar.

118.   On 9 March 2016 the Tribunal contacted the applicant’s representative to ask whether there was anything further that she plans to provide to the Tribunal. She said that there was nothing further.

Applicant’s activities in Australia – failed asylum seeker or returnee

119.   Contrary to the letter from the EPPF, dated [October] 2012, that the applicant is “[a]t present, while migrated to another country, she is participating in activities for the success” of the EPPF, the applicant told the RRT that since coming to Australia she has not been involved in any EPPF activities. At the RRT hearing she said she was in a “really bad way”. She referred to her leg and to pain and suffering.

120.   She told this Tribunal that people in [City 1, Australia] know that she goes to the [refugee welfare agency] and in Ethiopia people talk about her case so it is known in Ethiopia that she has applied for asylum.

121.   At the end of the Tribunal hearing it was submitted that the applicant has contact with the [refugee welfare agency] and there are people from the Ethiopian community through whom her application for asylum can become known to the Ethiopian authorities. She has also had contact with the EPPF in [City 1, Australia], with a man who travels between Australia and Eritrea, [Mr A] (see below under the heading [Mr A]).

122.   The Tribunal asked whether the applicant had been engaged in any political activities in Australia. She said she had met one member but her current situation prevented her from engaging in activities. The Tribunal asked her to specify what it was that prevented her from engaging with the EPPF. She said that when she was in her country she was dedicated to fight for the cause whereas here she does not feel her situation is stable enough. She was waiting for the outcome of the protection visa application. When asked why in Australia she did not feel more comfortable expressing her political views compared to Ethiopia, she said her main aim was to establish a stable and democratic situation like Australia.

123.   At the end of the Tribunal hearing it was submitted on behalf of the applicant that she suffers from anxiety and depression in Australia and that is why she is not involved with the EPPF. The other reason is that she is concerned with the safety of her family in Ethiopia. The representative advised that continuing involvement with the EPPF may cause further problems to her family in Ethiopia. She had seen the damage her activities had done to her family. Her instinct was then to stop being involved with the EPPF.

124.   The Tribunal asked whether she feared harm for any other reason such as being a failed asylum seeker. She said that her family are suffering in Ethiopia. The Tribunal noted that according to her representatives she may be at risk of harm as a person who has sought asylum in Australia, but it further observed that the Tribunal was not necessarily satisfied either that the Ethiopian government would know or be concerned that she has applied. She said that it would be dangerous for her to return to Ethiopia. This would only add to her problems.

125.   In relation to the claim that the applicant will be at risk as a failed asylum seeker, the Tribunal said that it had seen the submission which compares the applicant’s case to the case of an Ethiopian national, who was a member of the Ethiopian soccer team and who competed in the Homeless World Cup. The Tribunal noted that it would have been obvious to the authorities when the rest of the team returned to Ethiopia that that man had remained in Australia to apply for protection. The Tribunal pointed out that in any event it is not bound to follow the decisions of other Tribunal members. The representative said that the US Department of State and a lot of other country information indicates that the national security forces have authority to investigate returnees. The applicant has now been in Australia for over 3 years since last entry, whereas her earlier visits were very short. She will need to apply for a new passport and at that time the authorities can interrogate her about her claims. The fact that she has in the past been in prison – even without anything else – will be enough to bring her to the attention of the authorities.

Well-founded fear of persecution

126.   Having assessed the totality of the applicant’s evidence, for the reasons that follow the Tribunal finds that she is not credible and that she has fabricated her involvement with a political opposition group.

127.   Above the Tribunal has reproduced the applicant’s evidence in relation to her “spying” activities and her evidence in relation to the pot or jar in some detail, because the Tribunal found major problems with her evidence.

128.   First, the applicant claimed that she was too afraid to have a membership card, because it would be “suicide” and she was careful to use code words when speaking on the phone with the EPPF and yet she claimed that at home she kept a large jar, which was not buried in the ground, full of various documents, notes, pamphlets, photographs and diaries that made it clear that she was involved with the EPPF. The Tribunal is not persuaded by the applicant’s explanation that she kept these documents, because she did not think they would be found. If she was too afraid to have a membership card, she would have been aware of the dangers of keeping documents at home. Finding the documents at her place would have also placed other people at risk e.g. her cousin [Mr C] who appeared in a photo with the applicant.

129.   Secondly, the Tribunal found her evidence was vague in relation to the nature and contents of the documents e.g. “the developments that were occurring in terms of their activities such as their successes and failures in terms of their mobilisations”. Further, in the Tribunal’s view the applicant failed to provide a reasonable explanation as to why the EPPF would send the applicant documents which she did not need to have in her possession and which if intercepted could cause significant damage to the organisation.

130.   Thirdly, the Tribunal considers that if the applicant had indeed been gathering information for the EPPF, she would have been able to provide more detail about her “spying” activities. The Tribunal found her knowledge of the actual activities of the EPPF or clashes between the government and the EPPF to be virtually non-existent. When the Tribunal expressed a concern at the hearing that the applicant’s evidence was vague, the representative asserted that the applicant had provided a lot of detail. She referred to one paragraph of the applicant’s statement of 5 June 2014.[32] The Tribunal suggested that this was not detailed evidence about her activities. The Tribunal suggested that it would be very helpful if the applicant could provide a statutory declaration that sets out the details of the information that the applicant passed on to the EPPF, how many times she visited the uncle’s house and how many times she met with [the EPPF messenger]. As of the date of the decision no further evidence has been received by the applicant in relation to these matters.

[32] Paragraph 48 which states: The information I obtained was relevant to the war. I was listening to some exchanges of information about the war, say for example I heard that the places where the war took place, in Armachiho in north Ethiopia, I told [Mr C] what they said about the war. I heard there were some problems around the borders towards Eritrea and they also mentioned that a certain amount of soldiers would be there. I heard about the readiness of the EPPF to attack and when they were coming with the Eritrean soldiers. I can’t exactly say who would say this but they were chatting to each other about things like this.

131.   The Tribunal found that the applicant was unable to explain with any level of detail what information she obtained and passed on to the EPPF beyond the very basic claim repeated several times: she contacted the EPPF and used the word “goats” when referring to soldiers with light equipment and “sheep” or “cows” when referring to soldiers with more heavy equipment. Beyond the claim that she distinguished between “lightly” and “heavily” armed troops, but she did not demonstrate knowledge, for example, of different types of troops e.g. infantry, tank, artillery or air force.

132.   When asked if she described to the EPPF any military equipment – that is, whether she provided information other than number of lightly or heavily armed soldiers – she said she had never seen any military activities with airplanes and these things. She added that she had some information about “it” which she transmitted to the EPPF, and that her duty was to observe “these things” and relay the information to the EPPF.

133.   When pressed to be specific in relation to the information she had about battles or clashes between the EPPF and the government, she said that there were no battles as such, because the EPPF were lightly armed. In her oral and written evidence the applicant never referred to an actual number of troops. She spoke in the abstract about goats, sheep and cows. The highest level of specificity she provided was to name some places near the border with Eritrea where skirmishes were apparently taken place. It is hard to see what useful information she could have provided to the EPPF in face to face meetings if all she said could be summarised in one sentence over the phone – X number of goats, sheep or cows are going from location A to location B. Even in relation to this information the applicant contradicted herself: she told the RRT that she referred to “sheep” when she was talking about soldiers; she told this Tribunal she referred to “goats” and “cows”.

134.   The Tribunal is conscious of the fact that a person may be a useful source of information, even if he or she is uneducated and knows nothing about the military. However, the Tribunal observes that the applicant herself asserted that she had some level of knowledge of events and military developments. She claimed to have kept notes and diaries; she also had updates from the EPPF “like if there was an attack or if there was any activity in terms of mobilisation or any other thing”.

135.   The Tribunal considers that in parts her evidence was in parts so vague as to be largely meaningless. She recited the names of towns near the border of Ethiopia and Eritrea, but otherwise she provided no details of what information she gathered. When asked how many battles or clashes she remembered, she said she remembered there were some documents relating to the area where there were activities and the losses that they suffered or the gains that they made and also they were hopeful that they would achieve the goals that they set for that particular activity or any other future activities.

136.   Fourthly, she contradicted herself in relation to what activities the EPPF engaged in. In her 2012 statutory declaration she refers to the EPPF fighting with the government and the government sending tanks and anti-aircraft equipment, and in her 2014 statutory declaration to the “readiness of the EPPF to attack and when they were coming with Eritrean soldiers”, At the hearing she told the Tribunal there had been no such “wars” between the EPPF and the government, because the EPPF were not capable of those; she said the EPPF engaged mostly in political mobilisation.

137.   The fifth problem with the applicant’s claims is that she did not join an opposition group until 2010, even though the same government has been in power since 1991 and she was allegedly detained and raped while in detention in the late 1990s. The Tribunal does not accept her explanation that earlier she thought things would improve. It is implausible that she would have waited for so long for things to improve. The Tribunal has considered her explanation that she is a woman, that she was trying to raise her children and that life is difficult in Ethiopia, a Third World Country. The Tribunal notes that the applicant herself contradicted herself by saying that it did not matter how old you are, what sex you are, how educated you are, you can join the fight against the government. Further, in the Tribunal’s view the applicant could have started her “spying” activities at any time, despite her domestic obligations. She was collecting information from her cousin or from her husband’s [business] and passing it on to the EPPF. While it may have taken up some of her time which she would have otherwise dedicated to domestic tasks, such a role in the EPPF did not require her to abandon or sacrifice her maternal “duties”.

138.   It would not be appropriate for the Tribunal to require from the applicant a particular level of political involvement in Australia in order to satisfy the Tribunal that her claimed political opinion is genuine. The Tribunal accepts that the applicant has health problems and that she does not want to put her family in Ethiopia in danger. However, the Tribunal notes that the applicant has met [Mr A] on more than one occasion and has done a number of follow ups in order to get copies and originals of EPPF letters. Further, [Mr A] allegedly picked up a letter for the applicant from Eritrea, he gave evidence on the applicant’s behalf at the RRT hearing and he has met with the applicant’s representatives at the [refugee welfare agency] offices. He was also said to be in regular contact with the EPPF by email. The Tribunal considers that if the applicant were genuinely interested in the EPPF, and given that she was in contact with [Mr A] infrequently but regularly, she would have engaged with him as a fellow member of the EPPF e.g. asked for updates on the EPPF or offered to help in some way – rather than just pursued him to get support letters and evidence from him.

139.   The Tribunal is mindful that in the course of the hearing it advised the applicant and her representative that if it had persuasive evidence that [Mr A] is with the EPPF, it would remit the case for reconsideration. The Tribunal sought confirmation of membership directly from the EPPF / Arbegnochginbar. Ultimately, the question before the Tribunal is whether the applicant herself is a person in respect of whom Australia has protection obligations, not whether her witness is a member of the EPPF / Arbegnochginbar or somehow associated with the EPPF / Arbegnochginbar. In an email to the applicant’s representative, sent on 21 January 2016, the Tribunal advised that the applicant’s membership of, or association with, the EPPF remains a live issue. It gave the applicant until 28 January 2016 to comment on the absence of a response to the Tribunal’s November email. As noted above, on 9 March 2016, the applicant’s representative confirmed that she was not planning on providing anything further to the Tribunal. Thus, as of the time of the decision, almost 4 months after an email was sent to Arbegnochginbar, no response has been received.

140.   The Tribunal is not satisfied on the evidence before it that [Mr A] is a member of the EPPF / Arbegnochginbar. The Tribunal is prepared to accept that he knows [Mr F] and they are in frequent contact, but in all the circumstances and in the context of all the other evidence, that does not constitute sufficiently probative evidence that the applicant and [Mr A] are members of the EPPF / Arbegnochginbar.

141.   The Tribunal is of the view that the applicant was provided with ample opportunity to organise for [Mr F] (or someone else at the EPPF / Arbegnochginbar) to respond to the Tribunal’s email of 20 November 2015 or to email the Tribunal directly even if the Tribunal’s email was never received. The applicant was put on notice in early December 2015 that the Tribunal had not received a response to its email. The Tribunal cannot draw any negative inferences from the absence of any direct reply from the EPPF/ Arbegnochginbar. At the same time, on the evidence before it, the Tribunal is not prepared to draw the conclusion that [Mr A] is (or was) a senior member of the EPPF/ Arbegnochginbar and the applicant is (was) a member of the EPPF/ Arbegnochginbar. The weight the Tribunal can place on the letters from [Mr A], his oral evidence to the RRT and the evidence from the applicant’s representative that [Mr A] is in regular email contact with [Mr F] is limited, and it is outweighed by the numerous credibility problems with the applicant’s own evidence.

142.   It is possible that the Tribunal’s email was lost, ended up in a “junk” or “spam” folder or that it was read by someone who does not speak English and deleted. However, the Tribunal has received no explanation for the lack of response from the EPPF / Arbegnochginbar. The Tribunal considers that as both the applicant and [Mr A] were advised that the Tribunal sent an email on 20 November 2015 and that it has received no reply, they could have asked the EPPF / Arbegnochginbar to generate its own email to the Tribunal.

143.   There is another reason why the Tribunal can only give the letters limited weight. The 2012 letter states that “at present”, while in another country – presumably Australia – the applicant is participating in activities for the success of the EPPF’s plan. The 2014 letter states the applicant is still “contributing her share as supporter for our Front”. As noted above, the applicant was adamant in her oral evidence that she had engaged in no political activities in Australia, unless one describes her meeting with [Mr A] as political activity.

144.   In relation to the applicant’s claims that her children and mother have practically disappeared, the Tribunal notes that until 2015 the applicant claimed that her relatives had been harassed because of her. As late as June 2014 when the applicant wrote a statutory declaration, she said that her son [Mr D] had been arrested and detained for one night. She did not know the reason why, but this had occurred after the raid on the house in 2012 which was conducted, because of the applicant’s political activities. She said her husband had also been arrested in 2012 and he was angry with her as a result, that is, he was not involved in politics. She did not make a claim that any member of the family in Ethiopia had any interest in politics until 2015, when she alleged in her October 2015 statutory declaration that her son [Mr D] had not voted in the May 2015 elections.

145.   The Tribunal considers it is a far-fetched claim that even though the only political involvement any member of the applicant’s family had was her son [Mr D]’s unspecified activities in 2015 and his failure to vote in the May 2015 elections and the authorities had not harmed, harassed or threatened the applicant’s family since 2012, nevertheless all her children and her mother would have moved out of their home for fear of the authorities. In relation to her mother, according to the applicant’s 2012 statutory declaration it was safe for the applicant to call her mother from Australia, because she is very old, that is, she would not be at risk of harm from the authorities.

146.   The Tribunal also finds it improbable that if it is dangerous to discuss politics on the telephone, the applicant’s husband would have asked her in September 2012 whether she had been involved in politics and knowing of the dangers the applicant would have told him that she was involved. In addition, the Tribunal notes that such a question seems to be both dangerous and superfluous given that the authorities had conducted a search and found many a document linking the applicant with the EPPF.

147.   The Tribunal finds that the applicant is not a credible witness and rejects the applicant’s claims. The Tribunal finds that

·The applicant is not “Eritrean” or imputed to be so by others, even though the Tribunal accepts that her ethnicity is Tigrinya. The Tribunal does not accept that she could not get a job or that her own business suffered. The Tribunal does not accept that she has had her glasses broken, that she has been told to go “back” to Eritrea and that anybody in Ethiopia has discriminated against her on the basis of her actual or imputed ethnicity or nationality or because of her membership of her father’s family

·she has never supported the EPPF, Arbegnochginbar or any other political group or organisation in Ethiopia that is opposed to the current government (the applicant may have been imputed with an anti-government political opinion in relation to the regime which governed Ethiopia until 1991, see below at paragraph 148).

·she does not have and a cousin called [Mr C] or any other relative who is, has been, or was involved in politics

·she never gathered information from a cousin who was in the military, from his wife, customers of her husband’s business or anybody else in relation to military plans and military actions of any kind

·she did not write down the names of people who were expressing anti-government views or gather information in any other way to pass on to opposition groups

·she did not have any documents, goods or things in a jar or pot at home which may have caused the authorities to impute her with anti-government views if the authorities found these documents, goods or things

·none of her relatives who remained in Ethiopia after she came to Australia in 2012 have had any problems with the authorities for any reason. They have not been threatened, harassed, imprisoned, cautioned, forced to move house or do anything else

·her son did not refuse to vote in the May 2015 elections in Ethiopia and he was not involved in any other political activities

·the applicant did not have any conversations with relatives or others in Ethiopia during which she “admitted” that she was involved in politics

·the applicant’s relatives have not been harassed, threatened, cautioned, arrested, questioned mistreated by the authorities

·her relatives continue to live in the same homes where they lived before she left Ethiopia

·the applicant’s husband’s business has not suffered as a result of the fact that the applicant is in Australia or as a result of her application for protection or her activities in Australia.

148.   The Tribunal accepts the claims in relation to events that took place under the previous government, around 1987, set out at paragraph 43 above. The Tribunal is prepared to accept that the applicant was on a pilgrimage when she was picked up and unfairly accused of anti-government activities, and that as far as the applicant knows her friend was killed. 

149.   The Tribunal further accepts that she was subjected to horrible violence and repeatedly raped around 1998-1999, as set out in paragraph 44 above. The Tribunal finds that the events in 1987 are no longer relevant to the applicant’s claimed fears. The fact that at that time she may have been perceived as an opponent of that government is irrelevant today.

150.   In relation to the events that took place in 1998-1999 in [location], the Tribunal finds that the harm was perpetrated on her by someone in a position of power, who knew that she would be too terrified to tell anybody, even her own husband, what had happened. The appalling violence inflicted on the applicant more than 15 years ago was an opportunistic common crime, or more precisely a series of crimes. After the applicant was released from detention, the captain who had violated her kept coming to her [business].[33] That was cruel in the extreme, but an indication, that he was not interested in harming her further. Furthermore, some time after this, the applicant decided to move from [location] to Addis Ababa. These events from the late 1990s do not, in the Tribunal’s opinion, create a real chance of persecution now or in the reasonably foreseeable future.

[33] See applicant’s statutory declaration of 2014, at paragraph 14.

151.   The Tribunal does not accept that the applicant has any interest in politics and that she would either be politically active on return to Ethiopia or that she would have been politically active, but for the fact that she might be harmed as a result of being active.

152.   The Tribunal finds that the applicant does not have a well-founded fear of persecution for reasons of her actual or imputed political opinion, actual or imputed ethnicity or nationality as a Tigrinyan / Eritrean / part Eritrean or the daughter of a Tigrinyan / Eritrean, or her membership of the particular social group of her father’s family or her cousin [Mr C]’s family.

153.   As noted above, the Ethiopian government designated the group Ginbot 7 as a terrorist entity in 2011[34] and in 2015 the EPPF formed a coalition with Ginbot 7 and four other armed opposition groups.[35] The Ethiopian government has made public statements accusing Eritrea of supporting armed groups that aim to destabilise Ethiopia.[36]

[34] United States Department of State 2013, Human Rights Report for 2012 – Ethiopia, 19 April, Section 2a < Accessed 7 June 2013 <OG0DB543860>; Freedom House 2013, Freedom in the World – Ethiopia, 9 May < Accessed 7 June 2013 <CX307497>

[35] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 12 October 2015 <CXBD6A0DE14660>; ‘Ginbot 7 and EPPF Military Wings Merged’ 2015, TesfaNews, 10 January < Accessed 14 October 2015 <CXBD6A0DE14667>; Mpuga, D 2015, ‘Ethiopian Opposition Group Threatens Armed Resistance’, Voice of America, 25 July < Accessed 13 October 2015 <CXBD6A0DE14665>

[36] ‘Ethiopia says 800 ‘Eritrea-backed’ fighters surrender’ 2015, Al Jazeera, 17 September < Accessed 13 October 2015 <CXBD6A0DE14655>

154.   Reports were found from 2007 of individuals claiming to have been mistreated by government authorities after being accused of having EPPF membership – a claim the individuals dispute.[37] Four teachers were arrested and accused of being EPPF members. The teachers claim that they were actually arrested because they were active members of a trade union called the Ethiopian Teachers’ Association, but while they were in custody they were ‘tortured’ and ‘coerced’ into signing false confessions of having links with the EPPF.[38] One of the teachers told Amnesty International that he was ‘beaten severely many times in an attempt to make him admit to EPPF membership’.[39] Another of the teachers arrested told Amnesty International that authorities told him ‘he would not be released if he did not admit to being an EPPF member’.[40]

[37] International Federation for Human Rights 2007, Ongoing arbitrary detention of five leaders of the Ethiopian Teachers’ Association - ETH 001 / 1007 / OBS 133, 23 October < Accessed 12 October 2015 <CXE90FC0120250>; Amnesty International 2007, Further Information on UA 4/07, 2 July < Accessed 13 October 2015 <CIS1ACBC92900>

[38] Amnesty International 2007, Further Information on UA 4/07, 2 July < Accessed 13 October 2015 <CIS1ACBC92900>; International Federation for Human Rights 2007, Ongoing arbitrary detention of five leaders of the Ethiopian Teachers’ Association - ETH 001 / 1007 / OBS 133, 23 October < Accessed 12 October 2015 <CXE90FC0120250>

[39] Amnesty International 2007, Further Information on UA 4/07, 2 July < Accessed 13 October 2015 <CIS1ACBC92900>

[40] Amnesty International 2007, Further Information on UA 4/07, 2 July < Accessed 13 October 2015 <CIS1ACBC92900>

155.   In October 2012, Human Rights Watch reported that in his inauguration speech, Prime Minister Hailemariam Desalegn pledged to continue former Prime Minister Zenawi’s policies. According to HRW, the policies involve ‘crushing political opposition, the evisceration of independent media and civil society, and the use of arbitrary detention, torture, and other repressive measures to suppress dissent’.[41]

[41] Human Rights Watch 2012, Ethiopia: Business as Usual, 3 October, UNHCR Refworld < Accessed 10 April 2013

156.   The US Department of State in 2014 reported that:

Ethiopia and other nations in East Africa continued to accuse Eritrea of sponsoring armed groups destabilizing the region. The Eritrean government, for its part, continued to deny the accusations and, in return, levied charges that Ethiopia-supported groups continued to pursue the violent overthrow of the Eritrean regime.[42]

[42] US Department of State 2014, Country Reports on Terrorism 2013, 14 April, Chapter 2 < Accessed 8 September 2014

157.   The US Department of State further stated that:

In July, the UNSC called on Eritrea to begin cooperating with the Somalia and Eritrea Monitoring Group (SEMG), so that the body could determine the veracity of regional claims about Eritrean assistance to regional destabilizers. Refusal of the Government of Eritrea to hold substantive discussions with the SEMG, on grounds that the sanctions regime aimed simply to “humiliate” Eritrea and that the international community had turned a blind eye to Ethiopian misdeeds, prevented international investigations of charges against Eritrea. In December, Eritrean officials met with the SEMG in Paris in what the latter termed a productive meeting; subsequent confidence-building sessions have been scheduled for 2014.[43]

[43] US Department of State 2014, Country Reports on Terrorism 2013, 14 April, Chapter 2 < Accessed 8 September 2014

158.   In light of the country information cited above, the Tribunal accepts that persons considered a threat to the government may be targeted, detained and harassed, and that members and supporters of opposition parties, including the EPPF, have often been intimidated and harassed by government forces, including through imprisonment, torture and even death

159.   However, the Tribunal has rejected the applicant’s claims to have been involved in politics, to have had any association with the EPPF, Arbegnochginbar or any group or individual in whom the Ethiopian government may take an adverse interest.

160.   The applicant has one daughter in Australia and one son in [Country 1]. Prior to this last trip to Australia the applicant visited Australia twice and returned without any hindrance or questioning. There is no evidence before the Tribunal that the length of the applicant’s stay in Australia – on this occasion spent a lot longer in Australia compared to her two previous trips – will cause the authorities to impute the applicant with an anti-political opinion. The Tribunal agrees with the representative’s submissions that if the authorities wish to interrogate the applicant on her return, they can do so; and if they consider that she is an opponent of the government, they might punish her severely. However, the Tribunal is not persuaded on the evidence before it that the authorities will be interested in questioning the applicant on her return or when she applies for a new Ethiopian passport in order to return.

161.   The Tribunal considers that there is less than a real chance that the applicant will be questioned or interrogated by the authorities about the reasons why she did not return to Ethiopia earlier, about her status in Australia, about her application for protection or about her political views. In making this finding the Tribunal rejects the applicant’s claim that the Ethiopian community in Australia or people in Ethiopia know that she has applied for protection in Australia. The Tribunal is not satisfied that the applicant’s detention in the late 1990s or the late 1980s would be known to the authorities.

162.   There is also no cogent evidence before the Tribunal that the Ethiopian authorities will have an adverse interest in the applicant – [an age] year old woman who says she is of ill health and who has no history of involvement in politics – because she might have applied for protection in Australia. In reaching this view, the Tribunal has had regard to the applicant’s representative’s submissions and RRT decision 03598 [2009] RRTA 987.[44]

[44] See representative’s submissions of 14 December 2012, DIBP file folios 67-68.

163.   While the Tribunal accepts that the applicant’s son is in [Country 1] and one of her brothers is in [Country 2], it does not accept on the evidence before it that the applicant will be imputed with anti-government views or that she will be of adverse interest to the authorities because of her relation to them.

164.   The Tribunal notes that [Mr A] may in fact be a refugee in Australia. The Tribunal is not satisfied that the Ethiopian authorities will know that the applicant has had any association with [Mr A] in Australia. Therefore, the applicant will not face a real chance of persecution for reasons of her having had some contact with him in Australia.

165.   Therefore, the Tribunal finds that the applicant is not at risk of harm for reasons of her membership of a particular social group consisting of returnees to Ethiopia or failed asylum seekers alone or together with any combination of the following circumstances: the applicant’s long stay in Australia, the fact that she needs to obtain a new Ethiopian passport to return to Ethiopia, the fact that she overstayed her visa, her contact with [Mr A], her contact with and visits to the [refugee welfare agency].

166. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention for any Convention reason. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

167. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

168.   For the reasons set out above, the Tribunal is not satisfied that the applicant would be of any adverse interest to the authorities in Ethiopia. There are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk that she will suffer significant harm for any reason.   

169. She is not a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

171.   The Tribunal affirms the decision not to grant the applicant a Protection visa.

Filip Gelev
Member