1501692 (Refugee)

[2019] AATA 1457

1501692 (Refugee) [2019] AATA 1457 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1501692

COUNTRY OF REFERENCE:                  Ethiopia

MEMBER:Denis Dragovic

DATE:17 Jan 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration and directs that the applicant satisfies Article 1A(2) of the Refugees Convention.

Statement made on 17 January 2019 at 4:27pm

CATCHWORDS

REFUGEE – protection visa – Ethiopia – imputed political opinion – father defiant of regime – family members arrested – terrorism related charges – convicted in absentia – veracity of documents in front of Tribunal – implementation of laws of general application – political change in receiving country – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2

CASES

Applicant A v MIEA (1997) CLR 225

Daher v MIEA (1997) 77 FCR 107

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 and Border Protection 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 5 July 2013 and the delegate refused to grant the visa on 30 January 2015. The applicant provided a copy of his passport to the Department which I have viewed and am satisfied that the applicant is Ethiopian.

3. The applicant is currently residing in Australia on a five year [visa]. His wife, a [Country 1] citizen has moved to Australia. Despite his visa status and possible future ability to access [Country 1] citizenship I find that the applicant does not have a presently existing right and as such find that the applicant does not have the right to enter and reside in a third country.

4. The applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments.

   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 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. Summary of the applicant’s claims: The applicant claims that he comes from a wealthy and well respected family in Ethiopia who ran afoul of powerful interests within the government. He claims that his father has been convicted of [Offence 1], his mother of [Offence 2] and him and his brother of [Offence 1] in absentia. He denies all of the charges. The applicant fears returning to Ethiopia for reason of being arrested and imprisoned.

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

    Evidence and Findings of Fact

22. The applicant was raised in what he described as a wealthy family and schooled through private education. His younger brother went to school with a former [senior official]’s son. The applicant studied [Discipline 1] to help with his family’s business, received good grades and then studied [Discipline 2]. The family business included [Venture 1], [Venture 2] and [Venture 3]. Their clients included the government and businesses. His father was also engaged in [Venture 4] and [Venture 5].

23. The applicant’s grandfather on his father’s side had a lot of land. He was a [occupation] who was then granted land from the church which the EPRDF facilitated in 1991 because of the respect he had from the people. His mother’s side of the family is not wealthy.

24. The applicant has two brothers. He doesn’t know his older brother’s whereabouts while his younger brother is known to be in [Country 2].

25. The last time he spoke to someone in Ethiopia was his father’s lawyers, which he believes was in 2013. Otherwise he doesn’t keep in touch with his friends from Ethiopia.

26. The applicant claims that he received a call from his mother on [in] 2011 informing him of his father’s arrest.

27. The applicant claims that his father had years earlier been designated [an important position] because of the respect he held. He acquired this position in 2005. Because of this role he was asked to be an [office bearer in] the elections. The applicant recalls that his father’s opinion was that the election was unfair. The electoral committee of Ethiopia asked all [office bearers] to give statements and he listed in his statement of reasons why it was not fair giving general observations. After giving his statement EPRDF officials asked him to change the statement. His father refused. The government then, in an attempt to intimidate him, produced an arrest warrant of the applicant’s mother (2005). She wasn’t arrested because the father went to a judge to rescind the warrant. Subsequently, the applicant’s older brother was imprisoned for [duration] before he could stand trial. When he did the judge found the evidence to be misleading and wrong and he was released.

28. The father then sued the [authorities in 2007] and received compensation for what happened to the applicant’s brother. The applicant couldn’t recall in what form or amount the compensation was as he was [age] years of age. After this the applicant claims that the government treated his father poorly, they saw him as a traitor. They offered him an opportunity to become a member of the party but his father refused.

29. The applicant’s father had a friendship with [senior member] of [Political Party 1], [Mr A], who was elected [office bearer] in 2007. His father liked the values of [Political Party 1]. In the 2010 elections his father supported [Mr A]. The party subsequently merged to establish [Political Coalition 2]. [Political Party 3], the leading coalition member within the EPRDF government, was threatened by this merger.

    Value Added Tax confrontation and the charges against the applicant

30. According to the applicant, his father stayed out of the government’s sight until the VAT issues of Feb 2011. The government, he claims, introduced changes to the VAT system not based upon income/revenue but rather categories such as ‘hotels’. The applicant’s father felt that businesses would lose their income as it affected people living on marginal incomes. While it didn’t affect his family his father was [in an influential position] and he stood up for [the people]. As a result the father petitioned regional, local and state governments. Nobody listened. So his father took the matter to the [Court] in [2011]. He challenged it on the basis of its composition and implementation. [In the same year,] the [Court] decided that the tax system was legal but there were flaws which were identified and required to be changed.

31. In support of this narrative presented at the hearing the applicant provided an entire, what appears to be an original, edition of a newspaper which contained an article referring to his father after the hearing was held in 2018. The article was translated (Tribunal folder f.433). The article refers to the applicant’s father by name and aligns with the narrative provided at the hearing.

32. The applicant also provided a copy of the legal case the applicant’s father made against the government regarding the VAT issue dated [in] 2011 (Tribunal folder f.440).

33. The Minister’s delegate questioned the credibility of the VAT claims on the basis that the response appeared disproportionate and that the VAT was originally introduced in 2003. The delegate wrote:

    [T]he applicant’s father was concerned about, an dquestioning the implementation of a new tax, not something which, in my opinion would be regarded as so controversial that it would draw such adverse action from the Ethiopian authorities.

    I am usually reluctant to comment on decisions by the Minister’s delegate but in this instance it is important to note that proportionality of response by a government that has widely been accused of gross human rights abuses is a poor basis upon which to challenge the credibility of evidence. As regards the date of the introduction of the VAT, the applicant’s migration agent submitted evidence subsequent to the delegate’s decision that the VAT has gone through various amendments since its introduction in 2003 including a round of amendments that align with the applicant’s claims in 2010.

34. The applicant claimed that while the court case progressed the government pressured businesses to pay the tax. The applicant’s father refused to pay until his case was finalised and advised others to do the same. The government attempted to pressure him to change his views through delegations of religious leaders and tribal leaders. They even offered him a [number] year tax break. His father refused. After the court’s decision was handed down [in] 2011 his father had a scheduled meeting [a few weeks later] with local businesses. He was supposed to subsequently meet with a government [official few days later] but he was arrested [prior to that] for [Offence 3]. Later his case was upgraded to [Offence 1]. The applicant’s mother’s arrest a few days later [for Offence 2].

35. The applicant’s older brother led the defence of their father. The applicant claims that in response to these efforts the government issued an arrest warrant for the older brother on the same charges dismissed in 2005. When this occurred the first time his father was there to protect the older brother, but the brother knowing that it would be different this time fled. When he couldn’t be located he was added to his father’s case of [Offence 1].

36. The applicant’s mother was arrested [in] 2011. The applicant’s mother was sentenced to jail for [number] years but was released after [number] because she was sick. Since her release she has been in a [health] facility and isn’t allowed any outside contact. The applicant named the facility as [named health facility] in Addis Abbaba. The Ethiopian government’s Ministry of Health website confirms that there is a [similar named health facility] in Addis Ababa.[1]

    [1] [Source deleted]

37. The applicant claimed that his younger brother originally remained behind in Ethiopia under the care of a family friend but then fled to [Country 2] upon the urging of his father’s friend in 2014. In a letter written by Australian Red Cross (Tribunal folder f.377) summarising the engagement the applicant had with their tracing services it states that the applicant’s two brothers’ last known contact with the family were in [2011] for the older brother and 2012 for the younger brother. I note the discrepancy between the evidence provided at the hearing and that of the Red Cross letter with regards to the year in which the younger brother fled Ethiopia. This discrepancy was not put to the applicant. I accept the evidence in the Red Cross letter as a contemporaneous written record would be more accurate but I do not form a negative inference of the applicant for this inconsistency.

38. A copy of an arrest warrant for the applicant was provided ([f.12]) dated [in] 2011, the day after his father was claimed to have been arrested.

39. The applicant was charged ([f.20] and a NAATI accredited translation in Tribunal folder f.379) in absentia. The documents [in] 2012 in the earlier translation but [in] 2014 in the NAATI translation provided by the applicant state that he was charged against’[specified clause under Ethiopian legislation]. I accept the date as translated by the NAATI translation as the original has the date written in the Ethiopian calendar but using Western-Arabic numerals and aligns with [2014]. The relevant clause of the [legislation] reads:

    [Information deleted].[2]

    [2] [Source deleted]

40. The applicant was also charged with a breach of [a separate clause] which reads:

    [Information deleted].[3]

    [3] ibid

41. Specifically the applicant was accused of being involved with [Political Organisation 4], a designated terrorist organization at the time. He was accused of [Accusation 1] and [Accusation 2]. He was also accused of [Accusation 3]. The applicant’s father was accused of [Accusation 4]. The documents claim that the applicant’s father ‘was caught red-handed with [possession of all the tools for the commission of terrorist act]’.

42. A decision by the court was handed down ([f.37] and a NAATI accredited translation in Tribunal folder f.379) [in] 2014. The applicant is referred to as the [number] defendant based upon the original list of persons charged. The decision reads as follows:

    [Information deleted].

43. There is some discrepancy between this translation and the first translation along with issues of substance within the decision. In the first translation it is not the [number] defendant but rather the [number] defendant, being the applicant, who ‘influenced them to stay and [follow through with the terrorist act]’. The substantial discrepancy is that the final judgement also convicts the [the applicant], for the murder of a person. It is inconsistent with other material as it is the brother, [Mr B] who was convicted of the murder of a person found in [specified location] in the 2005 charges which were subsequently thrown out of court but revived after their father’s arrest.

1. The applicant stopped his studies in December 2011 as he claimed that he was preoccupied by what had happened to his family and having to find a means of his own survival in Australia. In addition the applicant submitted a list of transactions from [a named hostel] where he was staying at the time (Tribunal folder f.208). These show that he began working for his accommodation from [January] 2012. He claims his father was arrested [in] 2011 and his mother [a few days later].

2. I asked the applicant why he hasn’t followed up with his family’s lawyers about the recent release of thousands of people from prison. He responded that most of them were not from [Political Party 1] background. He said that when arrested on terrorist charges the only way to be released was by government pardon while those that were released are those who were only being detained without having had a trial. He added that the people with the financial and educational means to affect change aren’t being released. He claims that he contacted his lawyer but didn’t receive an answer. Country information differs in this regard. The example of Kinfe Mickeal Debebe is similar to that of his father, he was jailed for 25 years under the anti-terror laws and was one of those released by the new government.[4]

   [4] ‘Ethiopia: Ex-political prisoners revel in new-found freedom, Al Jazeera’, 4 July 2018 >

   The information above was in part collated from documents provided to the Department by the applicant covering the charges and convictions of his family members including himself. The documents were sent to him via DHL by his lawyer who provided an equivalent of a statutory declaration verifying the documents ([f.212]).

   Veracity of documents

3. I discussed with the applicant the Ethiopian court documents that he had provided noting that they state that the applicant’s whereabouts could not be traced and yet he left Ethiopia legally from the airport and as such the government would know where he was. He responded that the court proceedings in general are designed to show a free and fair trial and not be necessarily accurate. He also noted that his father was not allowed to have a private lawyer. Their family lawyer had represented him in other cases but the government didn’t allow a private lawyer in his father’s [Offence 1] case and instead assigned a public defendant.

4. I noted to the applicant that the pages of the court documents were printed on different paper suggesting that they were not printed at the same time and at the same place. He didn’t have an answer for the difference.

5. I asked the applicant if I could look through his phone to see if he had contacted Ethiopia recently. In reviewing the phone I found no Ethiopian numbers were called via phone or any aps.

6. The applicant provided considerable documentation from the [courts] of Ethiopia purporting to provide evidence of the convictions of himself and his family members. The delegate submitted the documents to the Department’s Document Examination Unit, which produced a report.

7. The report was prevented from being released under s.438(1) of the Act. The applicant appealed the decision to prevent the release of the information to the Australian Information Commissioner.[5] The lengthy process in deciding on this matter led to the substantial delay in the Tribunal’s case. In summary, the material that the Commissioner deemed should be released included the examiner’s findings both in the summary section and under each document’s detailed consideration, but not the preceding methodology that reveals techniques adopted to reach the conclusion nor the copies of each of the documents marked up with commentary.

   [5] ‘OF’ and Department of Home Affairs (Freedom of information) [2018] AICmr 30 (12 March 2018)

8. As a result the applicant received the summary and detailed consideration via the Department. These were discussed at the hearing.

9. The Ethiopian court documents including the original proceedings covering the charges and the final verdict had the following assessment:

   Due to the lack of security contained within the document, and the lack of reference material for comparison, my opinion on the genuineness of [the] Document is inconclusive. There is no evidence of alteration, addition or removal of information from the document.

10. In four instances, those of the four arrest warrants submitted by the applicant, the assessment by the document examiner was more conclusive:

    It is my opinion that the second hypothesis is the more likely of the two presented. The detection of the impression indicates they were not prepared as reflected by the document dates, but were prepared contemporaneously at an unknown time and date. I consider both documents to be unreliable due to this evidence.

11. The ‘second hypothesis’ which was not released to the applicant by the Information Commissioner was that ‘both documents dated 2011 and 2014 were produced on the same (unknown) date’. The basis upon which the examiner came to this conclusion goes to the methodology employed to assess the document which the Department had objected to releasing. As such I do not delve further behind the examiner’s decision nor is it relevant to the decision. I have included this portion of the examiner’s findings despite it not being released by the Information Commissioner for the reason that it does not expose the methodologies of the examiner but is relevant to this decision.

12. Due to the concerns raised over the arrest warrants the examiner in their summary wrote, ‘It is my opinion that there are sufficient unanswered questions regarding the production, authorisation and chronology of the documents to place any weight or reliability upon them.’

13. The problem with adopting this conclusion without further consideration by a decision maker is that there isn’t any understanding of how copies of records are accessed in Ethiopia. It is possible that all of the arrest warrants were prepared contemporaneously despite being dated 2011 and 2014 in circumstances where the applicant had, for example, requested someone to go to the [Court] to obtain copies and in turn copies were made signed and stamped by the same people. Without knowing whether this is the case it is difficult to dismiss the documents based upon the ‘second hypothesis’ of the examiner.

14. I requested that this be further investigated by the Australian Embassy in Ethiopia via the Country of Origin Information Services Section of the then Department of Homes Affairs. The response provided was as follows, ‘The Ethiopian [Court] is a manual, paper-based court. The Court Registar (sic) can provide a photocopy of original documents subject to approval by the Court.’[6]

    [6] Country Information Request CI180817171802794 – Court documents – Meri Central Hotel

15. In this situation, considering that the process is paper based and requires the Court Registrar to make copies the fact that four documents were made contemporaneously despite being of different dates is to be expected. The process through which this would happen would begin with the lawyer requesting a list of documents, the Registrar organising for them to be copied, those copies to be presented and then stamped, signed and verified by hand one after another.

16. Further enquiries were made by [an Australian officer] to the Ethiopian [Court] regarding the applicant’s case. Upon enquiry [the Australian officer] was asked by the Court for the reasons for the request for information. It is not clear what reasons were provided but the outcome has been that no information has been provided by the Ethiopian [Court] on this matter to the Australian government. The request was first made in October 2018. Considering that it has been four months since this request and a follow up by [the Australian officer] I give the applicant’s documents minimal additional weight in favour of their credibility for the following reason. If the charges were non-existent the court would have less of a reason to withhold a response confirming that they are false. On the other hand, if the convictions exist the court may have reason not to verify to a foreign government what actions it has taken in response to cases of [Offence 1]. This reasoning is not conclusive as other possibilities exist including that it takes more than four months to receive approval to release information but I find this less likely.

17. Considering the entirety of evidence on the validity of the documents I am not inclined as the Delegate was to dismiss the documentation based upon the examiner’s assessment alone.

18. I requested that [the Australian officer] enquiry about the ownership of [Venture 1]. The response was that ‘[Person C]’ is the owner. This is not the applicant’s father’s name. In this instance either the applicant fabricated his family’s ownership of [Venture 1] or they no longer own it. If the latter it could be that it was taken from them or alternatively sold without any undue pressure. Considering the weight of evidence provided that at some stage they did own it including submissions provided for his original student visa I do not accept the former possibility. Instead, I find that the evidence lends itself to supporting the applicant’s claims albeit it not conclusively as his family could have sold [Venture 1].

    Finding of Fact

19. Overall the applicant’s narrative has not changed through the years of his asylum process and other verifiable information supports his claims including his sudden withdrawal from studies, his need to work for his accommodation and the broader narrative surrounding the VAT tax which was supported by the newspaper article. On the other hand I find it vexing that the applicant has not called anyone in Ethiopia to enquire about his father despite thousands of political prisoners being released including some in very similar situations to the applicant. The applicant’s response to this question is not convincing as he is relying upon third party information, which any son whose father had been unfairly imprisoned I would think would ignore with the hope that his father was released or may in the near future be released. This could suggest that he is estranged from his family, a scenario that would explain his sudden solitude not having called anyone along with his need to independently survive in Australia. In this instance the court documents would have to have been professionally doctored. This is also possible. The examiner’s evaluation of the documents highlights that there are no security features on them and that his assessment is inconclusive. In addition for this scenario to be the case the Ethiopian [Court] would need to have reason to not have responded to requests by the Australian government or be very slow in processing the request.

20. While I find it not only bizarre but objectionable that the applicant did not enquire about his father the scope of human nature includes many different personalities and it is not for me to judge individual actions. Based upon the evidence available I find that the applicant’s claims of being convicted are true and I accept them as the basis of my considerations of whether he faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future.

21. Having accepted that he has been convicted I now turn my mind to consider whether the applicant actually committed the crimes he has been accused of. Country information indicates that the judiciary is susceptible to political manipulation when dealing with political cases:

    In cases involving independent journalists, bloggers, opposition supporters and members, or anti-government protesters, there are consistent, credible reports questioning the independence of the judiciary. According to the US State Department, the Ethiopian criminal court system is weak, overburdened and subject to political influence. Defendants have a right to legal representation under the Constitution. In practice, defendants in sensitive cases can be held for long periods without charge, obstructed from accessing legal representation and denied access to the evidence against them. Publicly appointed defenders are typically inexperienced and poorly paid. Hearings of sensitive cases are sometimes closed, notionally to protect national security and the safety of witnesses. This has the effect of reducing the transparency of proceedings.[7]

    [7] Department of Foreign Affairs, ‘DFAT Country Information Report: Ethiopia’, 28 September 2017 at [5.12]

22. Human Rights Watch has documented the politicization of the judiciary by way of an example that there is a requirement for trainee judges to join the ruling EPRDF and dismissing those who don’t follow political messaging.

    The trainees said that part of the training focused on the EPRDF [political ideology], and was conducted by party officials, not legal scholars. “Three times the trainers told us publicly to join the EPRDF. They want every judge to be a member of the party and they want you to do what they say, not what the law says,” said one trainee. The trainee judges said that the lecturer was also a regional government official, and that they were accused of being opposition supporters when they concluded—in an answer to a classroom exercise on the subject—that the former opposition Coalition for Unity and Democracy was not a terrorist organization under the new anti-terror law.[8]

    [8] Human Rights Watch, ‘Development without Freedom, How Aid Underwrites Repression in Ethiopia’, October 2010 accessed 11 January 2019 pp63-64

23. I acknowledge that the documentation from the courts has a strange turn in that the applicant is convicted on a charge that had been brought against his brother. But there can be various reasons some nefarious as the applicant claims, others less so, for example, sloppy recording by the justices of the Ethiopian [Court] where they should have written the [number] defendant they wrote the [number]. As for country information on the politicization of the judiciary, simply because some are politicized does not mean that all are nor does it mean that the applicant’s claims should be given more weight than the court’s findings in his specific case. It is not the role of an Australian Tribunal to stand in the shoes of a foreign court in revisiting the outcome of a case. The applicant himself has vociferously argued the genuineness of the documents. I have accepted them. As such I also accept the findings by the Ethiopian court, namely, that the applicant was found to be guilty of being a member of [Political Organisation 4], a then designated terrorist organization and for having trained [in] firearms and being indoctrinated on how to commit a [terrorist act].

    Consideration – Charges of [Offence 1]

24. Having accepted that the charges of [Offence 1] stand I now consider the circumstances to which he would return. I accept that upon arrival or shortly thereafter the applicant would be found and arrested. He would be imprisoned to serve out the time that the Ethiopian courts have sentenced him. The conditions to which he would be placed into can be understood from the DFAT Ethiopia country report which states:

    Prisons are reportedly severely overcrowded, and access to adequate food, healthcare and sanitation is limited. The US State Department describes prison and pre-trial detention facilities in Ethiopia as being harsh and, in some cases, life-threatening. There have been some new prisons built in recent years, and these facilities are reportedly closer to international standards. However, the government restricts access to prisons by international monitoring bodies, so it is difficult to independently verify claims around treatment. There are reports that prisoner complaints to courts are sometimes not heard or given due consideration, including claims of torture (see Torture, above).[9]

    [9] Department of Foreign Affairs, ‘DFAT Country Information Report: Ethiopia’, 28 September 2017 at [5.15]

25. I accept that conditions into which the applicant will be placed amount to serious harm.

26. I find that the reason for the applicant’s detention is that he has been imputed with a political opinion, namely one that aligns with his father’s, which is a willingness to stand up against the regime. As such I find that a refugee convention reason is the essential and significant reason for the harm he faces.

27. 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’.[10]  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. 

    [10] 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.[11]

    [11] 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 country information which indicates a frequent use of power extra-judicially including for instance the following report from Human Rights Watch:

    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 [12]

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

30. While this report is time bound and the state of emergency has been lifted it describes a situation in which there is impunity for government actors.

1. I also note that the situation in Ethiopia has changed substantially from when the applicant was first charged and subsequently convicted. In February 2018 Abiy Ahmed Ali took over as Prime Minister from within the ruling EPRDF which has been in power since 1991. Since taking power Abiy has made substantial changes including:

   ·Firing the head of Ethiopia’s prison service after allegations of widespread torture and subsequently freeing thousands of political prisoners.[13]

   ·Arresting the head of Somali region over human rights abuses.[14]

   ·Pardoning [Mr D], a leader of [Political Organisation 4], which was previously designated a terrorist organisation until the designation was lifted by Presidnet Abiy,[15] along with reaching a peace agreement with another rebel group, Oromo Liberation Front, which has been waging a 45 year civil war.[16]

   ·Lifting the state of emergency and making peace with Eritrea which has led to the first direct flights between Ethiopia and Eritrea.[17]

   ·Andargachew Tsege [prominent opposition political leader] being pardoned and released from jail.[18]

   ·Fighters from [Political Organisation 4] returning to Ethiopia from Eritrea.[19]

   ·[Political Organisation 4] being taken off the terrorist organisation list.[20]

   ·Numerous high profile opposition leaders who were living in exile returning, including Tamagn Beyene and Junedin Sado.[21]

   [13] 'These changes are unprecedented': how Abiy is upending Ethiopian politics, The Guardian, 8 July 2018, accessed 6 September 2018

   ‘[14] Ethiopia arrests ex-Somali region head over rights abuses’, Al Jazeera, 28 August 2018, access 10 September 2018

   [15] [Source deleted].

   [16] OLF rebels look to political future, carve out new identity, Ethiopia Observer, 3 September 2018, Ethiopia's new Prime Minister has had a stellar two months, can he keep it up?, CNN, 7 June 2018, accessed 6 September 2018

   [18] ‘Andargachew Tsige pardoned by Ethiopia’, Al Jazeera, 27 May 2018, accessed 2 October 2018

   [19] [Source deleted]

   [20] [Source deleted]

   [21] ‘Ethiopia: Former minister Junedin Sado returns from exile’, Xinhua, 4 September 2018 accessed 2 October 2018

2. While these changes indicate a substantial shift in the political landscape in Ethiopia, one that has been sustained for nearly twelve months the situation of the applicant remains precarious. These changes are opening the way for political change and had the applicant not been convicted I would give greater weight to these changes and turn my mind to the question of whether the political climate has changed sufficiently to reduce the risk to one less than a real risk.

3. But considering the applicant has been convicted and there is no suggestion of a Truth and Reconciliation style process in which past convictions are being reviewed and reconsidered I find that he faces a real chance of being imprisoned. While other political prisoners have been released it would be speculative to base an opinion upon such circumstances and find that he too would be released. I find that the applicant, regardless of a changed political leadership and the redesignation of [Political Organisation 4] as no longer being a terrorist organization, would enter into an environment in which the state security apparatus would fulfil its obligations which in this instance include imprisoning the applicant upon the previous orders of the [Court] for [Offence 1]. In such circumstances he may via appeals be released but this is speculative and the period of time he would remain in prison could be substantial.

4. I find that the conditions that he faces amount to serious harm. I also find that the state is the persecutor and as such he cannot seek state protection, he cannot relocate as the entire state of Ethiopia is under the control of the government and the laws under which he is being convicted are not laws of general application.

5. As such I accept that the applicant meets the Refugee Convention definition of a refugee as defined in Article 1A(2):

   owing to wellfounded 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

6. Even if an applicant satisfies Article 1A(2) of the Convention definition, he or she may be excluded from protection by Article 1F, which states that the provisions of the Convention shall not apply to any person with respect to whom there are serious reasons for considering that they have committed certain specified kinds of crime. However the Migration and Refugee Division of this Tribunal, considering an application under Part 7 of the Act, has no power to consider Article 1F issues: s.411(1)(c) and (d), Daher v MIEA (1997) 77 FCR 107.

7. The Tribunal notes that the material before it may give rise to issues relating to Article 1F of the Convention. The Migration and Refugee Division of this Tribunal has no power to consider Article 1F issues. As the Tribunal is satisfied that the applicant satisfies Article 1A(2) of the Convention, the matter will be remitted to the Department for reconsideration, including consideration as to whether the applicant is excluded from Convention protection by Article 1F.

   DECISION

8. The Tribunal remits the matter for reconsideration and directs that the applicant satisfies Article 1A(2) of the Refugees Convention.

   Denis Dragovic
   Senior Member