1502254 (Refugee)

[2017] AATA 984

1502254 (Refugee) [2017] AATA 984 (22 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1502254

COUNTRY OF REFERENCE:                  Ethiopia

MEMBER:Denis Dragovic

DATE:22 May 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2017 at 8:40am

CATCHWORDS
Refugee – Protection visa – Ethiopia – Religion – Muslim – Political opinion – Attended protest and detained – Family members detained – Credibility issues

LEGISLATION

Migration Act 1948, ss. 5(1), 36 (2)(a), (aa), (b), (c), 36(2A), 36(2B), 65, 91R, s.91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91S, 91R(2), 499

Migration Regulations 1994, Schedule 2

CASES
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
Kopalapillai v MIMA (1998) 86 FCR 547
MILGEA v Che Guang Xiang Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994
MIAC v SZQRB [2013] FCAFC 33

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 [in] August 2013 and the delegate refused to grant the visa [in] January 2015.

3.    The applicant appeared before the Tribunal on 6 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

4.    The Tribunal heard from [her] partner, as a witness.

5.    After 46 minutes of the Tribunal hearing the applicant stated that she wanted a new interpreter. I asked her whether she was unhappy with the interpreter to which she affirmed that she was. The representative interjected and stated, ‘Member, I am very confident in this [inaudible] he is our very best [inaudible] twenty years or more. I will talk to her because we want [inaudible] to proceed.’ I responded that ultimately the applicant must be agreeable to the interpreter. The representative suggested that she may have reacted to his earlier interjection over the translation of the interpreter. He spoke with the applicant on the matter and the applicant said that she was happy to proceed.

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

RELEVANT LAW

7. 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

8.    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).

9.    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.

1. 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.

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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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

1. 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’).

2. ‘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.

3. 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

1. 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.

APPLICANT’S MENTAL HEALTH

1. The representative raised concerns over the applicant’s mental health status. A psychiatrist’s report dated [in] April and [May] 2017 was provided to the Tribunal.[1] I have considered them as a matter that may influence the applicant’s ability to provide evidence.

   [1] Folios 63 and 68

2. In summary the psychiatric reports note that the applicant had been admitted to the [a] Psychiatric Unit in [location] involuntarily for assessment and management following the birth of her [child]. It is reported that the applicant did not believe that she had a mental illness and felt aggrieved by her treatment. The [May] letter notes that the applicant had a ‘Brief Psychotic Episode’ which led to her involuntary admission and was assessed as having Major Depressive Disorder prior to her admission. Upon a subsequent assessment by the psychiatrist he found that ‘there was no clear evidence of a mental illness currently affecting’ the applicant. The [April] letter notes that there is a possibility that she is masking and minimising her symptoms. The [April] note concludes, ‘I could not see any evidence of imminent risk to herself or her children on this review…[the applicant] has made it clear that she does not want or feel she requires further input from mental health services.’

3. Based upon this assessment and my interaction with the applicant in the two hearings I find that she was lucid and able to meaningfully participate in the hearing. I also find that based upon this report the applicant would not require further mental health support in the reasonably foreseeable future and as such have not considered the adequacy of those services in Ethiopia were she to return.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. Summary of Applicant’s Claims:  The applicant claims that she was involved in a protest as a part of her wider family’s commitment to supporting an alternative to the government supported voice for the Muslim community. During the protest she claims to have been arrested and immediately imprisoned for a period of [number] months at which point she was tortured. Following this event she claims that her fiancé was arrested, that her house was raided and property taken and that her [siblings] along with her father have disappeared.

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

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

Findings of Fact

Credibility

1. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 -70.)

2. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

3. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal 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).

Question of fact over her participation in protests and whether she was arrested

1. I put to the applicant information under s.424AA that was before the Tribunal that would be a reason for affirming the decision to refuse the applicant a visa.  I explained the information carefully and explained why it was relevant to my decision. I invited her to let me know if she could not understand the information or why it is relevant.  I also offered more time to respond on the information. 

2. The information I put before the applicant was from her interview with the Tribunal during her appeal from a decision by the Department on her [temporary] visa application to come to Australia.[2] At [21] the Tribunal decision records that the applicant stated the following: ‘On oath the visa applicant stated that she did not have any fear of persecution from any state body or individual for a Convention or other ground and that her life was settled in Ethiopia.’ The Tribunal record notes at [9] that the interview was [in] July 2012.

   [2] CLF[number] folio 83b

3. Prior to putting the s.424AA information this Tribunal heard from the applicant that she was at a protest following Friday prayers in July 2012 at [Mosque 1] (discussed further below). In her statutory declaration she claimed that she was arrested along with her father following the July 2012 protests and put in prison for [number] months. Specifically, she wrote, ‘I was taken to [a] detention facility where I was incarcerated for [number] months under extreme beatings and torture.’[3]

   [3] CLF[number] folio 91

4. I put to her under the earlier s.424AA statement the contradictory information of her whereabouts in late July and specifically whether she was in prison or on the phone with the Tribunal. I asked her, ‘Can you please explain how you could have been interviewed for this Tribunal at the same time that you were in prison for [number] months?’

5. I also put to the applicant that she made the statement at the [temporary] visa appeal hearing that she had nothing to fear and yet earlier in the protection hearing she explained that when she saw people arrested including her [relative] her expectation was that they would torture him and could kill him, ‘if they arrest someone that is the outcome.’

6. I then explained that this information is relevant to the review because this may lead the tribunal to determine that your claims in relation to this aspect of the application are false. I advised her that subject to her comments, this may lead the Tribunal to find that she does not face a real chance of persecution in the reasonably foreseeable future if required to return. I further put to her that subject to her comments the Tribunal may find that she does not face a real chance of persecution in the reasonably foreseeable future if she was required to return to Ethiopia. 

7. At this stage the applicant requested a break. I allowed the break and offered to her and her representative the opportunity to privately discuss any matters relevant to the hearing including the specific matters raised through 424AA and if they chose to do so they could respond to the specific issues raised through 424AA at that hearing or in a post-hearing submission.

8. After the break that was offered for her to confer with her representative and to respond to the 424AA information she offered that the reason that she didn’t clarify at the [temporary] visa interview the entirety of her circumstances and fears was because the telephone was tapped, implying that it was tapped by Ethiopian authorities, and so she couldn’t explain all of those things. I noted that she had not responded to the other issue raised, namely, how she could be on the phone with the Tribunal for her [temporary] visa appeal while she was also claiming to be in prison. She chose to respond to that question by way of a post-hearing submission.

9. On the same matter of her claim that she was imprisoned I note contradictory information being provided between her original statutory declaration and subsequent submissions. In the protection visa application she wrote:

   On [date] July 2012, some of my family members were worshiping in the local ‘[Mosque 1]’ when they were arrested amongst [other] worshipers by government forces. I was informed that fire was shot and tear gas launched towards innocent Muslims who have attended an election of free supreme Islamic council.

This statement is written such that it infers that she was not present by way of using such terms as ‘was informed’. Furthermore, she notes her family members’ arrests but does not mention that she was arrested.

In a subsequent statutory declaration submitted to the Department [in] September 2014 the applicant does not state the date but claims that she participated in a protest in July 2012 and was arrested and detained for [number] months.[4]

In the Departmental interview, as recorded by the decision record which was submitted to the Tribunal by the applicant, the delegate notes that she said that ‘She took part in one demonstration. This was on [date] July 2012 at [Mosque 1]. She was arrested with her father and fiancé. She and her father were imprisoned for [number] months and released on bail.’[5]

At the Tribunal hearing she claimed that [committee] members who were elected by the Muslim community were arrested in July 2012 and that protests followed the next day. She claims that she was at the protests the day after their arrests.

[4] CLF[number] folio 91

[5] CLF[number] folio 119

1. Early on in the hearing as I was enquiring about the whereabouts of her family members I asked the applicant when was the last time she saw her father to which she responded that they were together until she returned to [Country 1]. I asked her about when she came back to Ethiopia from [Country 1] where was her father? In Ethiopia, she responded. I sought to clarify this response and asked, did you see your father before coming to Australia, to which she responded, yes. I asked whether her father had ever been arrested and imprisoned. The applicant claimed that her father was suspected of being a member of the Ethiopian People’s Revolutionary Front (EPRF) and was arrested for this reason during the Derg administration (in a subsequent statutory declaration the applicant claimed that he was known ‘to have been actively involved with a different political party—Ethiopian People Revolutionary Party-EPRP). She claimed that she can’t remember how long he was in prison. I asked how old she was at that time to which she responded that she was [a teenager]. I asked if her father had been arrested at any other time to which she responded that he was not arrested but he escaped during the protests of July 2012. I asked again to confirm whether her father was arrested during those protests and she responded that she was told that the only time that he was arrested was during the EPRF time. Then she added that she recalled that both she and her father were arrested for [number] months in July 2012. I asked how she could forget considering that I had put it to her twice asking whether her father had been arrested. She responded that there was confusion with the questions as she thought my questions were solely focused on when he was arrested by himself and not when he was arrested with her. I put to her that I did not find this a credible answer. She responded, ‘ok’.

2. I note the inconsistency in her various statements. In the application, although not explicitly stated, she infers that she was not present at the protests. At the Departmental interview she claims that she was at the [date] July 2012 protests and that she was arrested on that day. Early in the Tribunal hearing she claimed that her father had escaped arrest at the July 2012 protests and did not mention her own arrest until she corrected the record. Subsequently, she claimed that she was arrested the day after the [committee] members were arrested which would have been at the protests of the [date] July 2012 as per country information below. This inconsistency on its own would not determine the outcome of the application but considering other concerns it diminishes the credibility of the applicant’s claims.

3. Country information on the events of July 2012 present the following timeline[6]:

   ·On [date] July a police operation targeted a gathering at [Mosque 1] and Islamic school compound, in [Addis Ababa].

   ·The same evening, in response to news spreading about the events at [Mosque 1], large numbers of people headed towards [Mosque 1].

   ·Large numbers of those on their way to [Mosque 1] were arrested. The government confirmed that over [number] people had been detained on [date] July.

   ·Between [dates] July, members of the committee of chosen representatives of the Muslim community were arrested

   ·On [date] July thousands of Muslims gathered at [another] Mosque, [in] Addis Ababa, to protest against the events at [Mosque 1] and the arrests of members of the committee

   [6] [Information deleted].

4. While I accept that some time has passed since those events and that the details may have been affected by the passage of time I note that the original protection visa application was submitted [in] August 2013, a year after the events.

5. In the post hearing submission received on the 20 March 2017 the applicant wrote that she was ‘arrested on [date]08/2012 ([date]11/2004 Ethiopian calendar), during the peaceful demonstration I participated at [Mosque 1] with thousands of supporters.’ She claimed that she was on the phone with the Tribunal for her [temporary] visa four days before. She justified the conflicting dates that became apparent during the hearing by stating, ‘I sincerely apology for my honest mistake of referring in English of the month July during my Tribunal Review hearing which I should instead have only used the Ethiopian Calendar month of Nehase (August).’

6. I do not accept this explanation for the reason of the repeated and specific references to July in her protection visa application form, her statutory declaration, at the Departmental interview and at the Tribunal hearing including at one stage confirming with her that she said July 2012.[7]

   [7] ‘July 2012, is that correct?’ to which the applicant responded, ‘Yes’. Audio record of hearing 55.30

7. For the reasons of the applicant speaking to the Tribunal at a time when she claims to have been in prison, for the inconsistency of her claims and the differences with country information I do not accept that the applicant was at a protest in July nor that she was arrested and imprisoned for [number] months.

Other questions of fact

1. The applicant claims that [Mr A] is her [relative]. [Mr A] is reported by independent country information to be one of the [representatives] who were arrested in July 2012.[8] The applicant did not mention [Mr A] in her protection application form nor in the Departmental interview but did in the statutory declaration dated [in] September 2014 as well as at the Tribunal hearing. Based upon my serious concerns of the applicants credibility and not having mentioned him at earlier iterations of her application process I find that the applicant is not [Mr A]’s [relative].

   [8] [Information deleted].

2. The applicant claims that she had a fiancé, [Mr B], who was associated with the protests of July 2012. She claims that [in] August 2013 he was arrested by government forces for protesting at a local mosque against the arrest of the [committee] members. She claims that he was arrested under [another name] but then changed his name to avoid future detection by the government because he was related to [Mr A] as well as being arrested under that name. I asked if he had changed his name officially, to which she responded that he had. In the decision record by the Delegate, provided to the Tribunal, it notes that in the [temporary] visa application the name of her fiancé was written as [a variation of that name]. I find it far-fetched to believe that people fearful of the Ethiopian government would believe that changing their name through official means would divert attention away from his relationship with a high profile religious activist or his prior incarceration. I find that the [Mr B] she claims is her fiancé is not the same man as [the stated name], specifically, that [Mr B] did not change his name and that [Mr B] is not related to [Mr A].

3. The applicant has claimed that she does not know where her family members are, that they were arrested and now are missing following a raid by security forces on their home. I do not find the applicant a credible witness and as such do not accept that her family members have been arrested.

4. I asked the applicant about the whereabouts of her family members and relatives in Ethiopia noting that it is a culture that has close knit large family units. She claimed to know only of one [relative] who is living in [name] province and that she does not have any relatives in Addis Ababa. I put it to her that I found it hard to believe that in the cultural context of Ethiopia she knew of the whereabouts of only one [relative] [but] she did not respond further. Because I have found the applicant not to be a credible witness I do not accept that the applicant does not know the whereabouts of her wider family.

5. The applicant claimed at the hearing that prior to coming to Australia she was an employee for [a company] that [activity deleted] and provided a letter in support of this claim. She provided the Tribunal with a registration document showing the establishment of her own private [business]. I accept these claims based upon third party evidence.

6. The witness, the applicant’s fiancé, claims that he met the applicant in 2013. He is from [Oromio], and of the same ethnicity as the applicant. The witness left Ethiopia in 1991 when he was separated from his family through random violence in the area where he was living. He claimed that the applicant would face harm because the government is cracking down on dissent as they seek control. I asked if he believed that she would face specific harm targeting her or general harm, to which he responded that because of existing religious issues within the country and her arrest for [number] months she would be targeted. I asked him if he was aware of her communicating with her family in Ethiopia to which he responded that he was not.

7. Because of my finding on her credibility and the witness not knowing the applicant prior to her arrival to Australia I only accept that the applicant is Amharan, that she may become a single mother of [number] children were she to return to Ethiopia without her fiancé and that she is a Muslim.

Consideration of claims

Being Amhara

1. I put to the applicant country information from DFAT:

   DFAT assesses that, in most cases, official discrimination (e.g. systematic state-sanctioned discrimination, denial of public services, higher detention rates) on the basis of race and/or ethnicity is rare in Ethiopia. This assessment is in line with the constitutional prohibitions on discrimination, and in part reflects the need for the government to maintain its legitimacy through inclusiveness, given the large numberof diverse ethnic groups within the country.

2. The applicant responded that the Amhara ethnic group was facing threats in certain regions, specifically Ghondar. As the applicant is not from Ghondar and country information suggests that discrimination is rare I find that the applicant does not face a real chance or a real risk of harm based upon her ethnicity.

Being a woman and single mother in Ethiopia

1. The applicant has [number] children from an Australian father. One child is Australian the other a [country] citizen. In considering the chance of harm befalling the applicant were she to return to Ethiopia I have considered the situation in which [her] children would return with her. As such I have considered both the level of discrimination against women including single mothers and whether she would have the capacity to earn an income to support her family.

2. Country information on the circumstances of woman in Ethiopia includes:

   ·In practice, women in Ethiopia face some official and societal discrimination and societal violence, although some progress is being made, particularly in regard to direct official discrimination.[9]

   ·In an interview conducted with CORI in December 2015 Dr Sehin Teferra reported that the situation varies depending on the woman’s capabilities and circumstances, “As everywhere in the world, the situation of single women/mothers without family largely depends on their capabilities and circumstances. A vast majority of educated and uneducated women are in paid employment and provide for themselves and their children. For unskilled women, sex work and domestic work are common fall-back options. Urban-based women have more options than rural-based women but I don't think ethnic and religious identities are factors in the strategies of single women/mothers.”[10]

   ·It is, however, unlikely that a single woman/mother cannot find a relative to help her.[11]

   [9] DFAT, DFAT Country I 3.49

   [10] CORI Interview with Dr Sehin Teferra conducted via written correspondence in response to written questions. 02 December 2015 available in United Kingdom Country of Origin Research and Information, CORI Research Analysis: Ethiopia, 11 December 2015 Ref: Eth1215

   [11] CORI Interview with Professor Jon Abbink conducted via written correspondence in response to written questions. 02 December 2015 in United Kingdom Country of Origin Research and Information, CORI Research Analysis: Ethiopia, 11 December 2015 Ref: Eth1215

3. Having accepted that prior to coming to Australia the applicant was an employee for [a company], had established her own private [business] I put to the applicant that she appeared to be capable to find work when she needed to and even able to start her own business and as such that I have no doubt that she would be able to find work were she to return. She responded that if she were to return there is nothing for her to build upon as her furniture and property has been taken away and she doesn’t have her parents.

4. Having not accepted that her family are missing and as such that her property was taken I find that the applicant has the capacity to find work as she has in the past and that as per country information she would have family networks from whom she could find help to raise her children or provide temporary financial support and accommodation until she finds work. As such I find that the applicant does not face a real chance or a real risk of harm, such as being forced into sex work, for being a single mother in Ethiopia.

5. I accept that there is some level of official and societal discrimination and societal violence against women in general. I do not accept that it amounts to serious or significant harm for the applicant.

Imputed association with Muslim anti-government campaigners

1. I have accepted that the applicant is a Muslim and as such now proceed to consider the extent of harm that she may face for this reason.

2. Country information notes that, ‘The prevalence of arrests of Muslim protesters appears to be higher than for people of other faiths in Ethiopia. These arrests are primarily a result of groups of people protesting against the government’s policies on religious matters, and arrests usually target the leaders of these protests.’[12]

   [12] DFAT 3.34

3. I put to the applicant that there is no evidence before me to suggest that as a Muslim she would face any additional harm above and beyond other Ethiopians and asked her to comment. She agreed and noted that it is not because of her being Muslim but rather because of her participation in political activities that would lead to her arrest.

4. Having found that the applicant has not participated in protests in Ethiopia and there being no evidence presented that the applicant has participated in any political activity in Australia I find that the applicant does not face a real chance or a real risk of harm for being Muslim and/or having a political opinion imputed upon her for that reason.

Fear of return for reasons of being a failed asylum seeker

1. Country information on the matter of returnees notes the following:

   ·     ‘DFAT is not aware of any problems having been faced by returnees on the basis of their being failed asylum-seekers. Nonetheless, DFAT assesses that people who are returned to Ethiopia and who are perceived as being political activists opposed to the government face a high risk of being monitored, harassed, arrested and detained, particularly if they continue to engage in political activities upon their return and if they are associated with groups that have an armed militant component.’[13]

   ·     A 2017 report in the Lusaka Times notes how the Ethiopian government lobbied on behalf of 147 citizens sentenced to 15 years in prison for consenting to being smuggled into Zambia. The Ethiopians had paid people smugglers to travel to South Africa to find work and join other family members but were caught along the journey by Zambian authorities. Ethiopian authorities together with IOM facilitated their return following a pardon by the Zambian President.[14]

   ·     Funding through the European Union is helping to facilitate the return of thousands of ‘illegal Ethiopian migrants’ who had travelled to Europe. The article reports, ‘To staunch flows along the so-called central Mediterranean route, the EU is offering trade deals and investment to African countries. In exchange for financial support African partners are to impose tighter border controls and to take back illegal migrants.’[15]

   [13] Department of Foreign Affairs, DFAT Country Report: Ethiopia, 1 April 2016 at [5.17]

   [14] CXC9040661250: "IOM Helps Ethiopian Migrants Detained in Zambia Return Home", Lusaka Times, 01 February 2017 available at

   [15] CX6A26A6E13029: "EU supports fresh start for returnees in Ethiopia", Deutsche Welle, 02 November 2016, available at

2. The above listed country information suggests an environment that has seen thousands of Ethiopian returnees from Western nations in recent years. Their return is being facilitated by agreements that lead to limited re-integration support. Both current and earlier reports note, though, that political activists, journalists and those associated with groups that have an armed military component face risks upon their return.[16]

   [16] See for example, Amnesty International 2006, Ethiopia: Prisoners of conscience on trial for treason: opposition party leaders, human rights defenders and journalists, 2 May, p. 12.

3. Considering that I have not accepted that the applicant has attended any protests and as such would not be considered a political activist I find that she would not face a real chance of harm or a real risk of significant harm in the reasonably foreseeable future was she to return to Ethiopia.

The totality of circumstances faced by the applicant

1. In MILGEA v Che Guang Xiang the Court required that to establish a real chance it is necessary to look at the totality of circumstances.[17] As such I turn my mind to considering the cumulative impact upon the applicant’s profile in relation to Refugee Convention grounds. The applicant is of Amhara ethnicity, Muslim and a woman who potentially will be a single mother were she to return to Ethiopia. In addition, she would be considered a failed asylum seeker. Having found that individually these issues do not raise the chance the applicant faces serious harm to a real chance I now turn my mind to them cumulatively. Even were a single potential persecutor to identify all issues I find that the applicant would not face a real chance of harm for the cumulatively issues listed above.

   [17] Unreported, Federal Court of Australia, Jenkinson, Spender and Lee JJ, 12 August 1994 at 17

2. I have also considered the Department’s Complementary Protection Guidelines as required by Ministerial Direction No. 56. In MIAC v SZQRB [2013] FCAFC 33, the Full Court of the Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test in the assessment of ‘well-founded fear’. Having considered the claims and evidence of the applicant as detailed above, and concluded that the applicant does not have a real chance of serious harm for these reasons, individually or cumulatively, I find that under the circumstances considered the risks are remote or non-existent and do not amount to a real risk of significant harm as exhaustively defined in s.36(2A) were the applicant to return to Ethiopia.

3. 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. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

1. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. 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

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

Denis Dragovic
Senior Member