1501015 (Refugee)

[2017] AATA 1073

1501015 (Refugee) [2017] AATA 1073 (31 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501015

COUNTRY OF REFERENCE:                  Ethiopia

MEMBER:Denis Dragovic

DATE:31 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 31 May 2017 at 2:47pm

CATCHWORDS

Refugee – Protection visa – Ethiopia – Political opinion – EPPF member – Informant – Recruitment of members – Credible witness – Identity of applicant exposed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) CLR 225
Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Ethiopia, applied for the visas [in] August 2013 and the delegate refused to grant the visas [in] January 2015.

3. The first and second named applicants appeared before the Tribunal on 31 March and 10 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A], a community leader and the applicants’ marriage counsellor. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

4. The applicants were represented in relation to the review by their 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.

    Member of the same family unit

20. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse, and children who have not turned 18.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. Summary of applicant’s claims: The applicant was born to a Tigrayan father and Eritrean mother and has lived her entire life in the Tigray region of Ethiopia. Her father passed away in 2005. She claims that she experienced a lot of discrimination and abuse because of her Eritrean heritage. In 2007 she became active with an illegal armed opposition group, EPPF. Her role was as an informant and recruiter of other supporters. She claims that while she was still in Australia one of her recruits was captured and after being tortured provided her name to the Ethiopian authorities and as a result she believes that she is wanted by the authorities. In addition, since arriving to Australia the applicant has been involved with opposition groups based in [City 1]. The applicant is married and has [children].

22. The applicant arrived to Australia [in] July 2012 on a student visa as the partner of her husband who was studying a [course] which began [in] January 2012 and ended [in] July 2013. The protection visa application was made [in] August 2013.

23. The delegate determined the applicants’ identities as Ethiopian, without any information to the contrary I have assessed the applicants’ claims against Ethiopia as their country of reference for Refugee Convention reasons and receiving country for Complementary Protection purposes. I also find that the applicants cannot avail themselves of a right to enter and reside in a third country.

24. The applicant provided the decision to the Tribunal by the delegate of the Minister. In this decision the delegate was unconvinced that the applicant was a member of the EPPF, that she recruited new members nor that the Ethiopian authorities would have any interest in her. The delegate also found that the applicant would not face harm based upon her mother being Eritrean.

25. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Findings of Fact

26. This case largely turns on the credibility of the applicant. As such in approaching the matter I have considered the guidance provided by Justice Beaumont in Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs[1]:

    21. Proof of persecution in the context of an application for refugee status is a matter of some complexity. As Grahl-Madsen has noted (The Status of Refugees in International Law at 145-6), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf. Gaudron J in Chan at 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting state "should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with". This should not, however, lead to "an uncritical acceptance of any and all allegations made by suppliants".

    22. In discussing the burden of proof, the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees takes a similar position (at pp.47-9). Although limits on the use of the handbook in the interpretation of the treaty were indicated by Mason CJ in Chan (at 392), the Chief Justice went on to say (at 392) that he regarded the handbook "more as a practical guide for the use of those who are required to determine whether or not a person is a refugee".

    23. In that context, the handbook states:

    "(2)           Benefit of the doubt

    203.     After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to ‘prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt

    204.     The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."

    [1] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994

27. The applicant claims that when she was young [Eritrean forces] [attacked] a [venue] in [her hometown], where she lived, resulting in [people] dying. Because of this act her community was resentful towards anyone of Eritrean heritage. She claims that every year the community commemorates this event and that if someone sees anyone of Eritrean heritage they abuse and insult them and blame them for that event. She was often blamed. Other than verbal abuse she claims to have been hit [leaving] her with a scar. She claimed that the discrimination continued even when she moved to [a city] in 1995 or ’96. She felt isolated at university where others didn’t want to work with her. Because of that she stopped studying for two years. When she restarted the situation improved but remained problematic because some of the teachers who knew her background remained in place.  I accept that the applicant has experienced social discrimination in [her hometown] as described above including being hit [on] the basis of her mother’s nationality.

28. The applicant claims to have been a member of the Ethiopian People’s Patriotic Front (EPPF). She asserts that she became involved in politics in 2007 as she realized that she did not agree with the government’s policies. She became involved through her [relative], [Mr B], who knew that she wasn’t happy with the government’s policies. He told her about the EPPF and gave her some papers to read. He also told her around the same time that [another of her relatives] was a member of this organisation and that he had been killed by the government. He told her that [this relative] was loved by the people of [the town], where he was living, and that he was a local leader and hero of the EPPF and that is why the government killed him. She decided to join because she wanted to continue [that relative]’s journey. She claims that she was not ‘recruited’ before 2007 because they were ‘studying’ her. When [Mr B] would visit he would discuss political matters to assess her views. Then they had to build a level of trust before asking her to join. I accept that the applicant joined the EPPF in 2007 based upon her disagreement with the government and her [relative]’s involvement and possible murder by the government.

29. The applicant claims that [Mr B] would come to her place to discuss issues and exchange information. He would bring her pamphlets that she would discretely distribute at night. She asked him whether she could go to the field and serve alongside the rebels but she was told no, and instead encouraged to finish her studies. They said that she needs to finish studying [and] then that she could go into the field and help as a [health professional]. Until then she claims that she was tasked with providing information about military movements and recruiting new members. I accept this narrative of her engagement with the EPPF.

30. Regarding the information she provided to the EPPF, she claimed that it was mainly military movements. She would convey the information to [Mr B] in codes. For example, when she saw a lot of military personnel moving through her town she would say, ‘there are a lot of sheep coming so be careful’. When the government was losing militarily battles she would say, ‘there are a lot of happy things there may be something behind that.’ If she saw injuries she claimed that she would say ‘today there are a lot of sheep slaughtered’. Or when the government was disseminating propaganda she would say, ‘today there is a lot of wind, huge wind is blowing, don’t be scared.’ She claims that her spying would be communicated back to [Mr B] through a mobile phone. She claims that she passed on information for the whole period from 2007-2012. When something of significance happened she’d call [Mr B] otherwise they would talk once a month and he would visit every two to three months. Other than injuries in hospital she would also convey information on occasions when the government did a sweep of unemployed youth or the government organised community meetings. I asked how she would know about military losses to which she said that she would see them during her practical experience at [Hospital 1]. This information was provided to the Tribunal in the first hearing. In the second hearing I asked her once again to repeat the type of code she would use under different circumstances. Her responses were largely consistent. I accept that the applicant played the role of an informant for the EPPF in her town and that she conveyed the information through the means described above.

31. As a first year [student] she claimed to go to [Hospital 1] for one month. In the second year, she claimed that she spent two months in [Hospital 2] then two months in [Hospital 1]. In the third year she claims that she spent more time in the hospitals switching from [Hospital 1] to [Hospital 2], three months in each rotating between them. I accept that the applicant performed her [practical] experience as described above.

32. The applicant claims that she was also tasked with recruiting personnel. She claims that she recruited two, [Ms C] and [Ms D]. [Ms C] had a hate for the government after the 2005 election when their brother was killed during the riots. The applicant claims that after getting to know her very well she told her about her role in the EPPF and gave her a pamphlet to read. This person was recruited in 2009. [Ms D] was a neighbour whose father was abducted by the government and lived alone. Being her neighbour they got to know each other and as the applicant realized that she hated the government she was recruited in 2010. The applicant claims that [Mr B] knew both. He knew [Ms D] as he took her to the field while [Ms C] was introduced to him before the applicant came to Australia with the intent of her taking over the applicant’s role until she returned.  The applicant claims that after coming to Australia she was in touch with [Ms C] every two weeks. The last time she spoke with [Ms C] prior to the hearing was two weeks ago. She claims that [Ms C] is still in the same role for the EPPF. I accept this narrative of events.

1. The applicant claims that [Ms C] learned what happened to [Ms D] through a person in the government who [Ms C] wanted to use as a source of information. [Ms C] learned that [Ms D] was arrested and killed and while being tortured she exposed [the applicant]. I accept this claim.

2. [In] June 2013 the applicant claims that she called her friend, [Ms C], and mentioned that they were returning home. This is when her friend told her not to return based upon the information she had learned about [Ms D]. The applicant was told by [Ms C] that the government was after her and that she was on a government list. The applicant claims that she was told by [Ms C] about this development in code: ‘One of our friends was entering into a hall and she slipped and fell down and mentioned your name.’ I accept that the applicant learned that the government identified her as a member of the EPPF just prior to returning to Ethiopia and that she learned of this through the means described above.

3. Upon her arrival to Australia the applicant claims to have met other members of the EPPF through the church. She told them that she was a member in Ethiopia and she claims that they accepted her and as such she started to contribute financially. In 2015 EPPF and Ginbot 7 amalgamated (see country information below). The applicant claims to have joined the amalgamated party that same year. I accept these claims.

4. She claimed that her role in the newly amalgamated organisation was to provide monthly financial contributions and assisting with [various duties]. She claims to have been making financial contributions since 2014 whereas in prior years she was unable to due to financial constraints. She claims to have begun helping with [the duties] only after the amalgamation because prior to that it wasn’t convenient and suitable due to her child. I put to her that it is hard to understand how she was willing to risk her life in Ethiopia while here she couldn’t contribute because it was inconvenient. She responded that back in Ethiopia she was alone, but now it’s different, she has a child. I accept her claimed involvement in the Australian chapters of the two anti-government organisations and her reasoning for her varying levels of commitment.

5. The applicant claims to have participated in meetings in Australia that discussed the ongoing situation in Ethiopia. She claims that the meetings prior to the amalgamation had [number]-[number] people but after the amalgamation they grew to [number]-[number]. I asked if there were spies in the meetings, to which she responded that she didn’t know but she believes that the government has informants in Australia. I accept that the applicant attended meetings and that there were attendee numbers in the vicinity of what she described.

6. The applicant claimed that when she first moved in to live with her husband [he] did not know what role she was playing. She claims that he only learned when they arrived to Australia and that he was very angry with the news as his plan was to study and go back home but because of her he had to stay here. She claimed that she only told him once she knew that she couldn’t go back to Ethiopia. I accept that her husband was not aware of the role she played with the EPPF and that he was only informed after she realized that she could not return.

7. The second named applicant (husband) also provided evidence. He arrived to Australia before his wife [without] Ethiopian government support. In Ethiopia he was [an occupation]. He claimed that he first learned about his wife’s political involvement just as they were planning to return to Ethiopia in 2013. He claims that she told him that she was a covert member of the EPPF, had been active in Ethiopia and that if they went home they would face prosecution. He claimed at the hearing that he was at that time upset and didn’t expect his wife to hide such things from him. He was considering returning without her because of the lies but didn’t because he loved her and they had [children]. He claims that he hadn’t had any profile with the government in the past but now there is a risk for him because of his wife’s involvement.

8. At the resumed hearing the Tribunal heard from [Mr A], a community leader in the Ethiopian diaspora. [Mr A] stated that he is an elder of the community which numbers about 3,500 people. He stated that he is often called upon to mediate matters. He stated that was a mediator for the applicants during the period when they were facing matrimonial trouble. He stated that he was aware of the matter of the primary applicant’s involvement with the EPPF and that she withheld it from her husband. He described to the Tribunal the seriousness with which the applicant’s husband took the matter and his willingness to return to Ethiopia without her. The witness’ account of the issues aligns with those presented to the Tribunal by the applicants and with no reason to doubt the witness’ credibility I accept his statements which add weight to the credibility of the applicant.

   Summary of Key Submissions

9. The applicant provided a copy of an EPPF membership form. According to the translated copy there is no date on the form. It only provides information about the applicant without providing any contact details for verification. For these reasons I give this evidence little weight.[2]

   [2] CLF[number] folio 130

10. A letter purporting to be from the headquarters of Patriotic Ginbot7 stating that the applicant is a member.[3] The letter had contact details of the offices in the United States. The contact details aligned with those available on the website. I contacted the office to confirm that they had provided the letter. The response[4] read as follows:

    Dear Sir

    Thank you for contacting the PG7 office.

    We would like to confirm that [the applicant] is a member of Patriotic Ginbot 7 movement for Unity and Democracy,   with a  membership number [deleted], and the office recognise the  support letter written on her behalf,  dated [date]/01/2017.

    Regards

    As this letter had been verified by the central headquarters of Ginbot7 I accept that she is a member of Ginbot7.

    [3] Folio 69

    [4] Folio 112

11. A letter from the then representative of the EPPF in [City 1] who confirmed that the applicant was a member of the EPPF and that she participated in meetings, [activities]  and the payment of membership fees.[5] I give this letter moderate weight.

    [5] Folio 47

12. A statutory declaration from the founder of Ginbot7 [City 1] branch, [name deleted]. He states that he received the applicant’s name as a member of Ginbot7 from head office, that he has been informed that she is an active member, that he first met her in May 2015 and that she has been participating in meetings that he has organised since 2016.[6] I give this letter moderate weight.

    Country information

    [6] Folio 50b

13. 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 operated in the northern Amhara and Tigray regions of Ethiopia and were supported by Eritrea.[7] According to the Terrorism Research and Analysis Consortium (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’.[8] Scholar, Wondwosen Teshome B. describes the EPPF as:

    Non-ethnic rebel fronts that fight for a regime change in Ethiopia. This group includes the EPPF (Ethiopian People’s Patriotic Front) whose aim is to overthrow the government by armed struggle. As the result, it is branded as “illegal” or “illegitimate” opposition by the Ethiopian government. The EPPF is largely supported by Eritrea, the arch enemy of Ethiopia. At present, the EPPF’s relationship with Eritrea is very controversial issue. For some, its association with Eritrea is a liability, and for others it is an asset. But, the most accepted theory is that Eritrea is using this organization on use-and-throw basis.[9]

    [7] International Crisis Group 2009, Ethiopia: Ethnic Federalism and Its Discontents, 4 September, p.26 available at Accessed 18 March 2017

    [8] Terrorism Research and Analysis Consortium n.d., Ethiopian People’s Patriotic Front (EPPF) < Accessed 18 May 2017

    [9] Wondwosen Teshome B, ‘Ethiopian Opposition Political Parties and Rebel Fronts: Past and Present’, International Journal of Human and Social Sciences 4:1 2009 p65

14. During 2006 and 2007, the EPPF was involved in armed attacks against Ethiopian government infrastructure and personnel.[10] A 2009 report by Jane’s,[11] 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.[12]

    [10] "Regional Dimensions of the Human Rights and Humanitarian Situation in the "Ogaden," Somalia, and Beyond - Testimony of Dr. J. Peter Pham", United States Congress, 03 October 2007, CXE90FC0120251

    [11] 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’. < Country of Origin Research and Information (CORI), CORI Country Report: Ethiopia, January 2010, available at: [accessed 18 May 2017]

15. In 2015, the EPPF underwent a series of mergers with other armed groups and has participated in armed activity against Ethiopian security forces.[13] The EPPF and Ginbot 7 merged in January 2015, and became collectively known as Arbegnoch Ginbot 7 for Unity and Democracy Movement (AGUDM).[14]

    [13] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July < Accessed 18 May 2017;  ‘Ginbot 7 and EPPF Military Wings Merged’ 2015, TesfaNews, 10 January < Accessed 14 October 2015

    [14] ‘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>

16. 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.[15]

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

17. The United Kingdom’s Home Office country information and policy note of December 2016 on Ethiopian opposition groups states:

    Anyone who is a member or perceived to be a member of one of the three opposition groups designated as terrorist organisations (the OLF, ONLF or Ginbot 7) – or other ethnic-based violent groups – may be subject to telecom surveillance; harassment; arrest and imprisonment, where they are at risk of incommunicado detention torture and other abuses, or even extra-judicial killing. This may also extend to supporters of these organisation or those who the government suspects of being supporters.

18. Human Rights Watch report:

    Ethiopia plunged into a human rights crisis in 2016, increasing restrictions on basic rights during a state of emergency and continuing a bloody crackdown against largely peaceful protesters, Human Rights Watch said today in its World Report 2017. The state of emergency permits arbitrary detention, restricts access to social media, and bans communications with foreign groups. Security forces killed hundreds and detained tens of thousands of protesters in Ethiopia's Oromia and Amhara regions during the year. Many of those who were released reported that they were tortured in detention, a longstanding problem in Ethiopia.[16]

    [16] Human Rights Watch, Ethiopia: Year of Brutality, Restrictions, 12 January 2017, available at: 17 May 2017]

19. Regarding the 2016 state of emergency:

    A six-month state of emergency was declared nationally on 9 October…Before it was renewed, the state of emergency was modified, officially reinstating the requirement of search warrants and doing away with detention without trial.[17]

    [17] IRIN, Ethiopia extends emergency as old antagonisms fester, 3 April 2017, available at: 17 May 2017]

20. Human Rights Watched reported on the state of emergency and events surrounding it in Ethiopia:

    On October 9, following the destruction of some government buildings and private property by youths, the government announced a draconian and far-reaching six-month countrywide state of emergency, which prescribes sweeping and vaguely worded restrictions on a broad range of actions and undermines free expression, association, and peaceful assembly…The protests occurred against a background of nearly non-existent political space: in parliament, the ruling coalition has 100 percent of seats, there are restrictions on civil society and independent media, and those who do not actively support the government often face harassment and arbitrary detention… Under the state of emergency, people are banned from watching diaspora television, sharing information on social media, and closing businesses as a gesture of protest, as well as curtailing opposition parties' ability to communicate with media… Ethiopian security personnel, including plainclothes security and intelligence officials, federal police, special police, and military, frequently tortured and otherwise ill-treated political detainees held in official and secret detention centers, to give confessions or provide information.[18]

    Consideration of claim to fear persecution based upon being a member of the EPPF and the merged AGUDM

    [18] Human Rights Watch, World Report 2017 - Ethiopia, 12 January 2017, available at: 17 May 2017]

21. I have accepted above that the applicant was a member of EPPF while in Ethiopia, that she played a role in informing the EPPF on developments in her town and that she recruited new members. I now turn my mind to determining whether the applicant is likely to come to the authorities’ attention because of these activities and whether it is likely to give rise to suspicion that she is involved with or supports the current amalgamated group designated as terrorists by the Ethiopian government, AGUDM.

22. The matter turns on whether [Ms C]’s information was accurate and has been actioned by the government as opposed to what appears to be the applicant’s claims that [Mr B] remains operational despite having being known by [Ms D] as EPPF. There is no independent country information which can be used to determine the accuracy of either. On balance the evidence provided by the applicant suggests that [Mr B]’s fate is unknown at present. In that case the possibility exists that his role has been uncovered. Noting the earlier guidance of Justice Beaumont on credibility and considering that the applicant has been a consistent and credible witness and giving her the benefit of the doubt this would suggest that [Ms C]’s claims are accurate and as such the applicant is known and wanted by the government.

23. I now turn my mind to consider whether the harm the applicant faces amounts to serious harm. Section 91R(2) of the then Act provides that the following are instances of serious harm: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

24. Based upon the country information referenced above I accept that the harm the applicant faces include either or all of a threat to the person’s life or liberty, significant physical harassment of the person and significant physical ill-treatment of the person were she to return to Ethiopia. As such I accept that the harm the applicant faces amounts to serious harm.

25. I also accept that political opinion, being one of the Refugee Convention reasons, is the essential and significant reason that the applicant faces the real chance of serious harm.  I now turn my mind to considering potential qualifications to the applicant’s claims for protection. 

26. As the perpetrator of the harm is the state and the Ethiopian Government has control of all areas of the country, I do not accept relocation as a viable option, nor the option of state protection.

27. Furthermore, I have considered whether the laws that justify the serious harm being brought against the applicant can be considered laws of general application.  In this regard, Brennan CJ has noted that for applicants to claim protection based on fear of persecution by laws of the state then the laws ‘must be discriminatory’ and ‘for the reasons of one of [the prescribed] categories’.[19]  Whether the discriminatory treatment constitutes persecution depends on whether the treatment is appropriate and adapted to achieving some legitimate objective of the country concerned. A legitimate objective will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the state and its citizens.  As such, a law or its purported enforcement will be persecutory if its real object is not the protection of the state but the oppression of the members of a race, religion, nationality, membership of a particular social group or political opinion. 

    [19] Applicant A v MIEA (1997) CLR 225 at 233

28. Country information states:

    While Ethiopia’s ATP [Anti-Terrorism Proclamation] is similar in wording to legislation in some western countries such as the UK and Australia, its implementation is significantly more restrictive of political freedoms. These restrictions, combined with the government’s effective security and intelligence infrastructure, have been partly responsible for the relative security in Ethiopia during a period of instability and violence in the region.[20]

    [20] Department of Foreign Affairs, Australia, Country Information Report: Ethiopia, 1 April 2016 at [3.36]

29. Based upon the above country information I am satisfied that the ATP seeks to achieve a legitimate objective of the country concerned, namely security in an unstable and violent region, but I do not accept that the treatment or in other words its implementation is appropriate. I make this conclusion based upon the country information listed above which notes ‘Ethiopian security personnel, including plainclothes security and intelligence officials, federal police, special police, and military, frequently tortured and otherwise ill-treated political detainees held in official and secret detention centers, to give confessions or provide information.’

1. As such I find that the applicant has a well-founded fear of persecution for the Refugee Convention reason of political opinion.

2. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore the first named applicant satisfies the criterion set out in s.36(2)(a).

3. The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). However, the Tribunal is satisfied that the husband and [children] are members of the same family unit as the first named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

4. The Tribunal remits the matter for reconsideration with the following directions:

   (i)that the first named applicant satisfies s.36(2)(a) of the Migration Act; and

   (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

   Denis Dragovic
   Senior Member