1507450 (Refugee) - [2017] AATA 1504

1507450 (Refugee) [2017] AATA 1504 (28 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1507450
COUNTRY OF REFERENCE:                  Ethiopia
MEMBERS:Filip Gelev (Presiding)

Denis Dragovic

Sophia Panagiotidis
DATE:28 June 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 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 28 June 2017 at 10:58am

Administrative Appeals Act 1975, ss 19A, 19B, 19D, 42,
Migration Act 1958, ss 5(1), 36, 65, 91N, 91R, 91S, 424A, 424AA, 499
Migration Regulations 1994, Schedule 2, r 1.12
CASES

Abebe v The Commonwealth (1999) 197 CLR 510
MIEA v Guo (1997) 191 CLR 559
SZBEL v MIMIA (2006) 228 CLR 152

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

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).
The first and second named applicants claim to be citizens of Ethiopia. The third named applicant claims to be a citizen of [Country 1]. They applied for the visas [in] December 2013 and the delegate refused to grant the visas [in] May 2015.
The applicants appeared before the Tribunal on 3 March 2017 to give evidence and present arguments. The first named applicant appeared before the Tribunal at a further hearing on 5 May 2017.
The applicants were represented in relation to the review by their registered migration agent.
The case was heard and decided by a multi-member panel. With effect from 1 July 2015, pursuant to ss.19A, 19B, and 19D of the Administrative Appeals Act 1975 (AAT Act) for reviewable decisions under both Part 5 and Part 7 of the Act. This case was constituted under these provisions. The reason for constituting a multi-member panel in this specific case was explained to the applicant at the second hearing.
RELEVANT LAW
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
Section 36(2)(a) provides that a criterion for a protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 1504
Decision Date: 28 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by the first named applicant, an Ethiopian national, against a decision to refuse him a protection visa. The second and third named applicants, his wife and step-child respectively, were also applicants in the proceedings, their claims being dependent on the first applicant's. The dispute centred on whether the first applicant had a well-founded fear of persecution in Ethiopia due to his political opinion and past experiences with the authorities. The case was heard by a multi-member panel of the Tribunal, with Senior Member Dragovic dissenting from the majority decision.

The primary legal issues before the Tribunal were whether the first applicant held genuine anti-government political opinions, whether he had a history of past persecution in Ethiopia that would lead to a well-founded fear of future persecution, and whether he could obtain effective protection from the Ethiopian state or relocate internally to avoid harm. The Tribunal was also required to consider the genuineness of a court summons allegedly issued against the applicant in 2016, which the applicant claimed indicated ongoing adverse interest from the Ethiopian authorities.

The majority of the Tribunal, comprising Member Gelev and Member Panagiotidis, accepted the first applicant's evidence regarding his detention and mistreatment in 2011 and 2013, finding that he held genuine anti-government views and supported the Blue Party. They gave the applicant the benefit of the doubt regarding the authenticity of the 2016 summons, concluding that it indicated outstanding court proceedings against him. Based on country information detailing the severe repression of political opposition in Ethiopia, the majority found that the applicant faced a real chance of serious harm, including arrest, detention, and ill-treatment, due to his political opinion and past association with the Blue Party. They were satisfied that the Ethiopian state could not offer protection and that internal relocation was not a reasonable option. Senior Member Dragovic, however, dissented, finding the 2016 summons not to be genuine and concluding that the applicant did not face a real risk of serious harm, viewing his past detentions as brief and his future political engagement as unlikely.

By majority decision, the Tribunal remitted the matter for reconsideration, directing that the first named applicant satisfied the criteria for a protection visa under s.36(2)(a) of the Migration Act, and that the other applicants satisfied the criteria under s.36(2)(b)(i) as members of the same family unit.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

According to media reports from late May 2017:[11]An Ethiopian court sentenced an opposition politician to six and a half years in prison on Thursday over a series of anti-government comments on Facebook that it said encouraged terrorist acts, his lawyer said.Yonatan Tesfaye, a former spokesperson for the opposition Semayawi Party, was arrested in 2015 and charged in May last year over remarks he made about anti-government protests on the social media site.Hundreds of people died in anti-government demonstrations in 20015 and 2016 in the Horn of Africa nation.Since then, more than 26,000 people have been detained, including many opposition activists, according to an April parliamentary report. A state of emergency has been partially lifted, but many restrictions are still in place. Yonatan's charges were brought under a 2009 law that prescribes jail terms of 10 to 20 years for anyone convicted of publishing information that could induce readers to commit acts of terrorism.His lawyer Shibiru Belete said Thursday's sentence handed down by a high court in the capital Addis Ababa took into account the 17 months Yonatan has already spent behind bars."That is unless it is reversed by appeal (by prosecutors)," he told Reuters.[11] CXC9040668394: "Ethiopia jails opposition politician for six years over Facebook post", Reuters, 25 May 2017, >Other sources indicated that Mr Tesfaye was arrested in December 2015 and that his comments were not particularly critical of the government e.g. the government used "force against the people instead of peaceful discussion".[12][12] “Ethiopian politician Yonatan Tefaye guilty of terror charge”, BBC News, accessed on 5 June 2017 at >According to Amnesty International, Mr Tesfaye was charged with “incitement, planning, preparation, conspiracy and attempt” to commit a terrorist act and the state prosecutor alleged Mr Tesfaye’s remarks were in pursuit of the political objectives not of the Blue Party but of a completely different political entity, the Oromo Liberation Front (OLF), which is a declared terrorist organisation. According to Amnesty International, Mr Tesfaye has no demonstrated links to the OLF.[13][13] Ethiopia: Release opposition politician held for Facebook posts, Amnesty International, 6 May 2016, accessed on 5 June 2017 at In relation to returnees, 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, arrested and detained.[14][14] DFAT Country Information Report on Ethiopia (1 April 2016) at 5.17.Background and claimsThe first and second named applicants married in [2012]. The third named applicant is the second named applicant’s biological [child] and the first named applicant’s step-[child]. The second and third named applicants arrived in Australia [in] January 2013 after the second named applicant was granted a [temporary] visa.The first named applicant arrived in Australia [in] September 2013 as a dependent on his wife’s visa. Only the first named applicant made his own protection claims. The first and second named applicants are both Ethiopian nationals. The third named applicant was born in [Country 1] in [2009]. His mother was there, because she worked [there] at the time. He is a [Country 1] citizen by birth and he travelled to Australia on a [Country 1] issued passport. The applicant (the Tribunal uses “the applicant” and “the first named applicant” interchangeably) was born in the capital Addis Ababa. He has [siblings] who remain in Addis Ababa.According to the applicant’s statutory declaration of [December] 2013, the applicant's father was [an official] in the Ethiopian [government] (the Tribunal notes that the current Tigrayan dominated Ethiopian People’s Revolutionary Democratic Front or EPRDF government removed the so-called Derg regime which had governed Ethiopia from 1975 until 1991). When the applicant was approximately [age] years old his father was imprisoned by the Tigrayan government after the civil war unseated the Amharic government. The applicant stated that the Tigray government imprisoned people perceived to be associated with the former Amhara government, even “non-political [people]” like his father. He was held for [number] years. His parents divorced when the applicant was about [age] years old. The applicant grew up in extreme poverty as his mother struggled to look after [the] children on her own. In 2005 the applicant and his [brother] were attacked by “government special agents” in Addis Ababa during the elections. They were playing [sport] near their home when two agents approached them and told them to lay down. The applicant and his brother thought they were picked on because of their father. The applicant and his brother fled instead and were shot at. The applicant's brother was struck [and] had to stay in hospital for a month. Even though his father reported this incident to the authorities, no action was taken by them. (The applicant provided to the Department three photos which he says are of his brother; a scar is clearly [visible]. According to the applicant these are bullet scars).[15] In his 2016 statutory declaration he said they were targeted for being Amhara, not “personally targeted”.[15] Folios 136-138 of DIBP file. The applicant said in his 2013 statutory declaration that these experiences began to shape his political views. He became aware of the corrupt and unjust ways that the Ethiopian authorities operate. The applicant was raised as a Christian and the family went to church twice a week. He worked [at] [Church 1] in Addis Ababa since October 2005. (The applicant provided an undated letter signed by [a] Pastor, [Church 1], which states that from October 2005 to August 2013 the applicant was a member of the church and a paid [employee]).[16][16] Folio 118 of DIBP file. Three days a week the applicant was undertaking work for a Christian organisation called [Organisation 1], which is [Denomination 1] ministry operating within [Africa]. The applicant would walk the streets of Addis Ababa, offering spiritual guidance and material assistance to [people]. In February 2011, while working for the organisation in a busy part of Addis Ababa, the applicant was arrested by the police. The statutory declaration states that the applicant had been doing this work for the last four years; it is not clear whether he meant 2009-2013 (when he departed Ethiopia) or 2007-2001 (when he was arrested).The applicant was held for over a week and the police accused him of anti-government activities. The police detained [the people] to whom he had been talking and assaulted the [people] in order to extract false evidence against the applicant. He was emotionally and physically abused in order to extract a confession from him. He was taken to a court in a part of Addis Ababa [and] charged with breaking the anti-terrorist law. The police asked the judge for a further 15 days but the judge gave them only one working day to gather further evidence. As this was on a Saturday, the applicant had to remain in custody over the weekend. During this time he was tortured, the police slapped him and spat in his face. On Tuesday of the following week he was taken to a different judge. The new judge was also only prepared to give the police one day. The applicant was returned to custody and tortured again. On Thursday of the same week the police took the applicant to a different court, in another part of Addis Ababa. They told the judge that it was the applicant who’d refused to go before a [judge]. Finally, on Friday the applicant was released by the first judge for lack of evidence. But the judge told him that he had an 'open' case against him that could lead to his arrest and imprisonment if he were to break the law in the future.In February 2013 the applicant joined the 'Blue Party' as he felt that it was a new political movement that was a progressive alternative to the current Ethiopian government. He did not participate in public events but made regular contributions to the party.The applicant was arrested by the police at [location] on [date] 2013. The Blue Party had [planned an event] for [date] 2013, but the applicant [heard] that the [event] was cancelled. He decided to go to the [location] to see whether the [event] will go ahead or not. While he was there, the police came and arrested him. He was taken to the police station with about [number] other members and beaten and abused by the police. (The statutory declaration does not say that a total of [number] people were arrested at the time; it says that he was taken to a particular police station with about [number] others. However, at interview with the delegate he said that he was arrested together with [approximate number] other people).He was released around [time] pm on the same day. However, the police took down his details while he was detained. As a result, the applicant believes that it was only a matter of time before the police would find out that he had an open case against him.The applicant left Ethiopia in mid-September and came to Australia. Approximately a month after arriving in Australia the applicant's brother in Addis Ababa informed him that the police had come to the applicant's house looking for him. The applicant fears that if he returns to Ethiopia he will be arrested by the authorities and subjected to torture, abuse and imprisonment.In a statutory declaration provided to the Tribunal, dated [February] 2017, the applicant claimed that in Australia he is not in direct contact with anyone from the Blue Party as it is too dangerous to communicate with anyone in Ethiopian about politics. In mid-February 2017 the applicant spoke with his [brother], who told the applicant that a court letter had been received a few months ago. The letter was dated [November] 2016 (or more precisely [date]/2009 in the Ethiopian calendar) and requests the applicant to attend court three days later, [in] November 2016. First Tribunal hearingAt the start of the hearing the first named applicant said that he had recently been hospitalised because of a [health] condition, but he confirmed that he was not claiming to have any protection claims in relation to his health. The Tribunal asked the applicant why he came several months after his wife. He explained that his wife was sponsored by a woman called [Ms A]. [Ms A] provided the financial support necessary for the grant of the second named applicant’s [temporary] visa. The first named applicant remained in Ethiopia until September, for another eight months. He said that he intended to visit his wife and then return to Ethiopia while she was [here]. He applied for a [temporary] visa as a dependent of his [wife]. He emphasised that he considered working for the church [to] be his calling. It was because he was arrested in [2013], and the fact that the authorities were looking for him afterwards, that he decided to remain in Australia and seek protection.The first named applicant said that he was sponsored by his brother-in-law, the second named applicant’s [brother]. He said that [his brother-in-law] was not in a financial position to sponsor his sister, because the financial requirements for the grant of her [temporary] visa are much more onerous than the requirements for the first named applicant (who was a dependent on [the second named applicant]’s [visa]).The applicant has consistently maintained that he is Amhara and he confirmed that at the Tribunal hearing. He told the Tribunal that “visually” one cannot tell what ethnicity a person is, except that many Tigray people make a small vertical cut on the outside of their eyebrows. The Gambella wear a distinctive marks on their forehead. These are the only two ethnic groups that the applicant knows of with distinctive “features”.He said that the Ethiopian national ID cards disclose the card holder’s ethnicity. He said that he had not suffered any discrimination in employment, nor in accessing any services for reasons of his ethnicity. He said that he worked in the church, rather than for the government, and he did not need any government help or assistance (e.g. health care for a serious illness or condition). He worked for the church with people from different ethnicities. He had heard from Amhara people who work in business that they suffer discrimination. He was born in a Christian [Denomination 2] family, but most members of the family are now [Denomination 1] Christians. When he was growing up his [siblings] regularly took him to [Denomination 1] Church. He was baptised [Denomination 2] when he was [age]; then he was baptised into the [Denomination 1] faith when he was a teenager.The applicant is [one of several] siblings. One of his [siblings] lives and works [overseas]. All the other siblings remain in Ethiopia. He told the Tribunal that [details of other siblings deleted]. In Australia he belongs to the [Denomination 1] Church in [Suburb 1] ([name] Church). When asked whether the letter, dated [March] 2015, in support of his case was provided frm the same church[17], he said it was. He insisted that the church is located in [Suburb 1] rather than [Suburb 2] which is what the letter from the church says. Given that [Suburb 1] and [Suburb 2] are neighbouring suburbs, nothing turns on this. [17] At folios 148-149 of DIBP file. He said the author of the letter of support [is] one of the elders in the church. He acknowledged that [the author] expressed support for the applicant’s claims of past harm based on what the applicant told him. The applicant confirmed his claim that his father had been [an official] with the Derg regime, which was overthrown by the EPRDF, and he was imprisoned for about [number] years. He disagreed with the Tribunal’s suggestion that his father may have been imprisoned because he was associated with the overthrown government. He said that people in Ethiopia associate the Derg government with the Amhara ethnic group. The previous government before that of Haile Selassie had also been dominated by Amhara. When the EPRDF came to power they specifically targeted the Amhara. He said he did not think his father would have been targeted if he were not Amhara.His father did not work after his release, but the applicant was not sure why. When he reached a certain age, which the applicant thought was early [age], he was entitled to a pension. He is in his [age] now but the applicant is not sure of his father’s exact age. The applicant was asked to describe what happened to him and his brother in 2005. According to the 2013 statutory declaration (at paragraph 7) the applicant and his brother were targeted because of their father’s involvement with the previous government. According to the 2016 statutory declaration they were not personally targeted. The Tribunal asked which one was more accurate.He said that in 2005 there was organised political opposition and a lot of people supported the opposition. After the elections the government declared victory but the people did not believe this was true. The applicant was in college in 2005. One day, after the elections, some Tigrayan people approached him and his brother. He said there was gunfire in the background, nearby. Although the men were wearing civilian clothes, the applicant and his brother knew immediately that the men were from a security agency, because they had cut eyebrows and they were carrying hand guns. He denied the proposition that arms are widely available in Ethiopia so that the men could have been civilians. The men also spoke Tigray or if they spoke Amhara they would have had a Tigrayan accent.He said the men went straight for the applicant and his brother even though there were other [people] near there. This is why the applicant thinks that the men were targeting him and his brother. The applicant’s brother said “run” and they did. However, the applicant’s brother was shot. The applicant kept running. As far as he knows neighbours took the applicant’s brother to hospital and he was there for about a month. He said that other Amhara people had also been hurt around that time. One neighbour had his arm broken, another one was shot. When asked how he could explain that the men did not capture his brother who was seriously wounded, the applicant said that the city is very crowded, there were people everywhere, there was also a lot of screaming.Another reason why the applicant thinks that his family was targeted was this. His father went to the police to report the matter, but the police refused to take down his complaint. The applicant conceded that the father himself was not accused of doing anything against the government at that time. The authorities did not pursue either the applicant or his brother any further at that time. The applicant was asked whether it is reasonable to assume that if the government were after the applicant and his brother, they would have checked the hospitals. He said that he did not know about that. He said that he voted for the Opposition in 2005, but he said that the government would not have known how he voted.Having previously described his [neighbourhood] as a “mostly Amharic” neighbourhood, he said he did not know whether his neighbourhood was particularly anti-government compared to any other neighbourhood. He said that people in Ethiopia do not talk about politics as the fear of the government is pervasive and everywhere in the country. In any case, most people dislike the government. In relation to [Organisation 1] and [Church 1], the applicant told the Tribunal that they are “Ministry partners”. [Church 1] [details deleted]. The people who started [Organisation 1] in Ethiopia [were] from [a] Church based in [Country 1]. [They] travelled to Ethiopia to [details deleted].They started [Organisation 1] in order to give assistance to [a certain group of people] in Ethiopia. The organisation was trying to cater for the needs of [a certain group of people] – food, shelter and spiritual guidance. He explained that [Church 1] was not looking after [that group of people]. [Details deleted]. [Organisation 1] is completely different; it just helps [the people], the government is not involved.The applicant described in compelling, coherent and persuasive way how he was detained for a period of about [number] days in 2011. He was physically abused in detention and accused of anti-government activities. He was charged with being part of an illegal gathering, that is a gathering of more than 3 people, which is prohibited in Ethiopia. The judge who finally released him accepted that he was just preaching. In relation to the Blue Party the applicant said that he signed a “big book” and became a member in early 2013 after his wife and step-[child] came to Australia. He obtained a membership card but he does not know what happened to it. The applicant confirmed his claim that he first heard about the Blue Party on the Voice of America. When asked how he joined, how he knew where to go in order to join, he said that he read about the Blue Party in a local magazine.The applicant maintained that he did not want to get involved in politics at a senior level, because his calling was to work for the church. However, the situation kept deteriorating and he was hoping that the Blue Party may achieve some positive change in the country. The Tribunal observed that in 2010 the governing EPRDF had total political control in the country and had won all but one seat in Parliament. The applicant had been arrested in the past when he was not engaged in any political activities but merely doing his job. The Tribunal asked the applicant what changes he hoped he could achieve through the Blue Party in light of this political context. He said that the Blue Party was different from other parties, it was a party of young people and supported by young people. The Tribunal put to him that the Voice of America had described it as “a small offshoot of an opposition group that collapsed following the 2005 elections“.[18] He said that he did not know about this. [18] IRB - Immigration and Refugee Board of Canada: Ethiopia: Semayawi Party (Blue Party), including origin, mandate, leadership. Structure, legal status, and election participation; party membership; treatment of party members and supporters by authorities [ETH104974.E], 17. October 2014, accessed at on 01. March 2017.He told the Tribunal that he did not know whether the Blue Party has any presence in Australia. He has not participated in any Blue Party related activities in Australia. When asked who the current leader is, he provided a name, but explained that the Government has infiltrated the Party and there is infighting. When asked about persecution of members of the Blue Party since he left Ethiopia, he said he knew there was a man, Yonathan, who was imprisoned after publishing things on Facebook against the government. He also knew about another man, an ethnic Amhara, who was a member of the Blue Party and who was killed by the government about a year ago. Recently there were commemorations of his death.He said he liked the Blue Party more than other political parties, because they are not ethnically based.He thought that prior to [date 2013] there had been another Blue Party [event] earlier during that year but he did not participate in it.100. The applicant said that if his wife and step-[child] had stayed in Ethiopia, he would not have joined the Blue Party. The applicant was asked why it would have made any difference to his wife and step-[child] when he is in prison. The applicant said that at least they will not see him if they are in Australia. He said that “the place” makes a big difference. 101. After a break the applicant said that the Blue Party is legal and under the law they are allowed to operate. The Party’s legal status was his “shelter”, he felt safe joining it.102. The applicant was asked how the [Denomination 1] Church was different in its views on social issues compared to other churches, such as the [Denomination 2] Church. The applicant said that Ethiopians are very proud of their association with the [Denomination 2] Church, because it [has] a long history. The [Denomination 1 members] have a “holistic” outlook e.g. building schools and facilities (e.g. toilets) in rural areas.103. The Tribunal suggested that as a dedicated Christian he should stay out of politics – as the Bible says “Render therefore unto Caesar the things which be Caesar's, and unto God the things which be God's.” The applicant replied that Jesus did not condone or approve of unjust or corrupt government. He believed in doing what was just – fighting corruption, standing up for the oppressed, etc. 104. In relation to the events of [2013], he said that he [heard] that the [event] may not be happening. He said he [attended] because he was curious whether it was going to happen or not. He was not worried at all that the authorities may come to [location] and detain him while he was [there].105. He said that he [arrived] around [time] pm. He said that the police arrived only a couple of minutes later. He said that he was [information deleted]. 106. When the police arrived, [they] started putting people in [a vehicle]. 107. The applicant remarked that [information deleted] when the police arrived. He did not get a chance to ask anyone [about the event]. 108. He did not know who the most senior Blue Party person there was. There were no children present, but he saw a couple of women. 109. The applicant was placed in a [vehicle]. When asked how it was possible that [number] people would fit in the back of [such a vehicle], he said the authorities could (forcibly) fit even more people; it is not like Australia. 110. At the police station his name was taken down but only written on a piece of paper; there was no computer system. He did not think that the government will cross-check and realise that there was an open case against him from 2011. 111. He did not go into hiding at the time because he did not think that even after his release the authorities may cross-check his past record and then come looking for him. 112. He confirmed the claim that the authorities had come to look for him in October 2013. The police came and told his brother than it would be better if he went to the police station. He maintained that after his arrest in 2013 the police may have realised that there was still an open case against him from 2011, but it did not follow that up and they also realised that he had recently left the country. 113. The applicant was asked about the November 2016 court subpoena about which he says he did not know until February 2017. The Tribunal asked him whether he was claiming that he had to communicate with his brother secretly so the authorities are not alerted to the fact that he is in Australia, or whether he was saying that because of the state of emergency the government had blocked the internet and he lost contact with his brother for a few months. The applicant said that he thought that his brother had totally forgotten about the court document. It was not until the applicant mentioned to his brother the Tribunal hearing that his brother remembered. 114. When asked more generally about the claim that the internet had been blocked as one of the measures imposed during the state of emergency in Ethiopia, starting in late 2016, he told the Tribunal that he knows the internet is blocked because some of his friends are no longer active on Facebook; he had also seen reports about it from the opposition TV station ESAT. 115. As the applicant had not provided a translation of the court document prior to the hearing, he was given the original court document to read from. He said that the document requests that he attend court on a certain date, but does not say why. He rejected the suggestion that this may be a subpoena to attend court as a witness, because the court document calls him “the defendant” or “the accused”.116. Between October 2013 and November 2016 the family did not receive any documents in relation to him, nor were there any visits from the authorities. There were police seen in the streets in the vicinity of the house but nobody had specifically come looking for him.117. The Tribunal noted that his wife had to provide a document from Ethiopian Airlines to [an organisation] in connection with her [temporary] visa and that airline is fully owned by the government. When asked whether he accepted that the authorities would therefore know that she travelled to Australia and that as her husband he is probably in Australia as well, he said that if he were an investigator he would probably find out, but he does not know what the Ethiopian authorities were doing. He implied that the authorities may not be terribly competent. 118. Pursuant to s.424A and using the procedure under s.424AA of the Act, the Tribunal invited the applicant to comment to or respond to adverse information in relation to the events of [date] 2013. The Tribunal said the particulars of the information were as follows:-The applicant told the Tribunal that he arrived at [location] around [time] pm. He told the delegate at interview that the police took him away “at [time] up to [time] o’clock”, that he was in police custody for maybe [number] hours and that he was in custody until about [time] o’clock. -He told the Tribunal that the police came maybe only 2 minutes after he had arrived at [location].-[Information deleted].-According to [source] the [arrests] took place in the [time of day]-According to [source] [information deleted].[19][19] [Information deleted].119. The Tribunal handed up to the applicant’s representative copies of all [independent source information]. The Tribunal advised the applicant that his evidence appears inconsistent with the independent sources in terms of the time of day when the [arrests] occurred. In addition, [information deleted]. 120. The Tribunal explained the information’s relevance: based on this information, the Tribunal may conclude that the applicant was not at [location] on [date] 2013 and he was not detained on this day. The Tribunal may find that the authorities did not have any adverse interest in him in 2013 or at any time since 2013, including now. The Tribunal advised the applicant that the information is also relevant because his overall credibility is an issue and the Tribunal may find that he has been making up evidence in order to get a protection visa. 121. He was advised that as a consequence of relying on the above information, the Tribunal may reject his protection claims on credibility grounds. This information would be the reason or part of the reason to find, that he is not a person in respect of whom Australia has protection obligations, and affirm the decision under review.122. When the Tribunal asked the applicant whether he was seeking further time to respond, he asked for a brief adjournment which was granted. His response was as follows. In relation to [specific incidents] prior to the police coming in to arrest people at [location], he said that as he had already explained he was not [information deleted]. He drew a diagram [information deleted]. He explained that [information deleted] but this would have happened after the applicant was dragged away [and] taken to the police station. Thus he has no knowledge of these subsequent events.123. In relation to the time when these events took place, he said that time keeping is different in Ethiopia. The clock is 6 hours behind. When the police came it was around [time] pm “Western time” and [time] o’clock Ethiopian time. The [independent sources] may have made one of two mistakes. First, a witness or witnesses may have said that the events took place around [time] o’clock (Ethiopian time) and the [source] may have concluded that it was a reference to [time] pm Western time. Secondly, a witness or witnesses may have referred to [time] o’clock, meaning [time] pm Western time, but the [source] may have concluded that it was a reference to [time] o’clock Ethiopian time which is in the evening ([time] pm Western time). 124. The Tribunal observed that the Blue Party is not illegal in Ethiopia and he has not been involved in politics since 2013. He did not do anything illegal in 2011. In 2013 he just happened to be [at the location]. The Tribunal asked why the government would be connecting the events in 2011 and 2013. He said that they do not think logically like the Tribunal member. If they want to persecute you, they persecute you. 125. The Tribunal discussed country information which indicates that ethnicity per se is not enough to lead to someone suffering serious or significant harm in Ethiopia. The Tribunal read out the following from the DFAT Country Information Report (16 April 2016):3.4 Societal discrimination on the basis of ethnicity can occur, but is predominantly in the form of positive discrimination in favour of a particular ethnic group (especially Tigrayans in the government/public service sector) rather than active discrimination against people of a different race or ethnicity.126. The applicant said that he did not accept that proposition. He said that he and his brother were targeted in 2005 whereas Tigrayan people living in the same neighbourhood had not been targeted. He said that the Amhara are targeted e.g. the government would not build roads in the Amhara region. He said that as a church [employee] he travels a lot and he had seen, for example, how the government built a road on one side of the Abay River in Oromo territory, there is a bridge over the river, but the road did not continue on the other side of the river in the Amhara region. He claimed further that the government had shut down the “airport station” at Debre Markos (also spelled Marcos or Marqos) which is in an Amhara region. Finally he said he had heard the government was building condominiums “everywhere” but not in Debre Markos. When asked why not, the government said they did not want to build condos in Debre Markos.127. The representative advised the Tribunal that the court document has not been sent, because the government controls the mail. The applicant is waiting for someone trusted to bring the document to Australia, but he and his brother have not yet found a suitable person.128. The representative submitted that the court document was evidence that the applicant is wanted by the authorities and this is probably because they have realised that he had an open case from 2011. 129. It was further submitted that the applicant cannot know and cannot be expected to know why the government does not realise that he has left the country. The representative explained that even in Australia the police may not know that someone has left the country, unless they specifically approach the Department of Immigration to ask about a person’s whereabouts. 130. It was further submitted that the applicant has done his best to explain why he joined the Blue Party. While things are dangerous in Ethiopia, he took a calculated risk as it is a legal party and he was not a leader. He feels very passionately about the community and he wants to achieve positive change e.g. through donations. 131. In relation to the DFAT Report, the representative noted that since April 2016, when it was published, the situation has deteriorated significantly, a state of emergency has been imposed and tens of thousands of people have been arrested. 132. The applicant is not making a claim that his Amhara ethnicity per se puts him at risk of harm, but it may play a part in creating problems for him if he were to return to Ethiopia.133. The Tribunal gave the applicant until 10 March 2017 to provide a translation of the November 2016 court document. He did so and the Tribunal scheduled a second hearing to discuss with the applicant the format of the summons. Post-hearing correspondence134. By letter dated 7 April 2017, the Tribunal invited the applicants to a second hearing. In the letter, the Tribunal relevantly stated the following:After the hearing of 2 March 2017, you provided to the Tribunal a translation of the summons your brother allegedly received in late 2016. The reason for the further hearing in this matter is that the format of the summons does not seem to be in accordance with the summons issued pursuant to the Criminal Procedure Code of Ethiopia of 1961. The Code can be found at and the relevant form for court summonses appears to be Form IX (Third schedule, at page 99). When one compares the summons you have provided with the Form IX summons, the summons you have provided is addressed to the police rather than the Public Prosecutor, it does not have your address and it does not specify any of the criminal charges against you.There is country information from the IRBC that the Criminal Procedure Code promulgated in the 1960s was still in use in 2015 (see ‘ETH105314.E – Ethiopia: Police summonses, including legislation and ways for delivering summonses; information on the appearance and content of summonses, including whether there are variations between federal and municipal summonses’, Immigration and Refugee Board of Canada, 14 October 2015 at and 2016 (see ‘ETH105730.E Ethiopia: Requirements and procedures for obtaining police reports, such as criminal complaints, from within the country as well as from abroad’, Immigration and Refugee Board of Canada, 3 February 2017 at the further hearing, the Tribunal may discuss other matters with you, including the absence of country information that the Ethiopian authorities prosecuted any Blue Party members in connection with the events [in question].135. In submissions received on 4 May 2017, the representative argued that (a) there is no definite proof that the template identified by the Tribunal is used by the Federal Court that summoned him; (b) the country information accessed by the Tribunal states that the police – not that the courts – continue to use these templates; (c) but it is not conclusive information that the courts use these templates from the Criminal Procedure Code; (d) country information indicates that the police sometimes summon people over the phone, that is, there is no procedural uniformity; (e) the summons document referred to by the Tribunal relates to trials whereas the applicant may have been summoned for, for example, a pre-trial matter; the document provided by the applicant is pre-printed and there is no space to include the accused person’s address or the charges against them; (f) the applicants have provided other documents e.g. the second named applicant’s divorce certificate, which does not have any addresses of the applicants. Second Tribunal hearing136. The applicant was invited to a second hearing. The Tribunal explained to the applicant that we have an obligation to discuss the “issue” of the genuineness of the summons he has provided (SZBEL v MIMIA (2006) 228 CLR 152). The Tribunal observed that there is a template in the legislation and it looks different to the summons provided by the applicant. Further, no matter what the exact format or template of the summons is, one would expect to have the person’s address and the charges set out while the summons he has produced does not have his address and does not specify the charges.137. In relation to the claim made by the representative in her submissions of 4 May 2017, that the second named applicant has a court order (divorce) and her address does not appear on the document – the Tribunal pointed out that a divorce order does not have to be served on anybody while a summons does. Therefore, it cannot be said this is a very good analogy.138. The representative explained that the stamp on the divorce order seems to be identical to the stamp on the document provided by the applicant. It is that stamp which supports the claim that the document is genuine. 139. The Tribunal commented in relation to the applicant’s claim that in Ethiopia one cannot expect the universal adoption of an official template or form. The Tribunal suggested that if there has been a form of the summons since the promulgation of the Criminal Procedure Code in the 1960s, one would expect that it would be in use across the country. It would be easy and convenient to use that form – using a computer or a pile of pre-printed summons – rather than for court registries to make up their own forms. He said that he could not be expected to know how this works. 140. The applicant insisted that the courts in Ethiopia do not follow proper procedures, despite their claims to the contrary.141. The applicant confirmed that he had not received the original summons from his brother. 142. The applicant said that he had spoken with his brother after the first hearing. His brother told him that the document had been served on him at the house.143. The Tribunal returned to the question discussed at the first hearing of the frequency of contact between the applicant and his brother and the time when the applicant became aware of the summons. The applicant insisted that his brother had not told him about the summons until the applicant mentioned that he had a Tribunal hearing in Australia. The applicant said that prior to that he had last spoken to his brother before November 2016 (when the summons was served on his brother). 144. When it was put to him that this was surprising, because the summons is an important document, he insisted that his brother made no contact with him, including by SMS. He said that he was busy in Australia with kids and church and does not speak to his brother frequently.145. The applicant claimed that his brother has not told the applicant about anything else having been received by the court or the authorities such as a warrant for his arrest after the applicant failed to appear at court in November 2016. 146. When asked about the departure procedure at the airport and whether he remembers having his passport scanned, the applicant thought that indeed his passport had been scanned.147. The Tribunal suggested to the applicant that the country information indicates that members and especially leaders of the Blue Party get harassed and detained, but also released relatively quickly in the same way as the applicant himself claims to have been detained and released after only a few hours later. There has not been a large trial against the Blue Party and members of the Blue Party have not been sentenced to long terms of imprisonment. The government arrests and releases people a few hours or a few days later. The Tribunal asked why, in light of this pattern of behaviour by the authorities, they would have summoned the applicant to court years after he left the country.148. The applicant reiterated what he had claimed previously. He had an open case from 2011 (he was accused of holding an illegal meeting at the time). This was why in his opinion the authorities proceeded to a court case. 149. At the end of the hearing, the representative pointed out that according to the country information some members of the Blue Party have been charged with criminal offences (see at bottom of p. 3 of submissions of 4 May 2017) rather than detained briefly and released without a charge. 150. The representative submitted that even if the applicant is detained for a brief period of time, he may suffer serious or significant harm in detention e.g. torture or beatings. Findings and reasons by Presiding Member Gelev and Member Panagiotidis151. The Tribunal accepts the applicant’s evidence in relation to the events in February 2011, that is, while undertaking work for a Christian organisation the applicant was arrested, accused of anti-government activities, charged with “holding an illegal meeting”, severely mistreated in detention, and brought to court on three occasions. The Tribunal also accepts that he was released without further action being taken at that time.152. Because of the Tribunal’s findings below that the applicant is a person in respect of whom Australia has protection obligations, it is not necessary to deal with the applicant’s claims in relation to his father.153. The Tribunal accepts that the applicant supports the Blue Party and that the receipts he provided as proof of payment to that Party are genuine, and that he intended to attend a Blue Party [event in] 2013.154. The Tribunal has some concerns in relation to the validity of the court summons allegedly issued in respect of the applicant in November 2016 and served on his brother as it does not specify the offences with which the applicant has allegedly been charged and the applicant’s address does not appear on the document. The Tribunal had difficulty believing that the applicant’s brother would have failed to mention this summons to the applicant for some months. 155. Nevertheless, the Tribunal gives the applicant the benefit of the doubt in relation to this document. It accepts that the document may not be in the same format Form IX, Third schedule to the Criminal Procedure Code of Ethiopia of 1961, because the applicant was not summoned to appear at court. 156. The Tribunal respectfully adopts the following general statement – from an unrelated case – about the assessment of evidence (Member Bagaric, case number V0214392, 6 September 2004):The probative value of the evidence produced by the applicant in support of his claim that he will be persecuted …was not high. Most of the evidence came from a self-serving source (the applicant) and was littered with hearsay statements in support of his case. Nevertheless the direct evidence given by the applicant was on oath… There is no contrary evidence. This is not an atypical situation in a forum where the rules of evidence do not apply. The objective of providing a mechanism of review that is fair, just, economical, informal and quick militate further against the capacity to investigate thoroughly the applicant’s claims. Against this background (where the applicant’s claims are not self-contradictory and are not patently contrary to country information and there are no obvious credibility issues) the rational approach to take is to accept the claims – no matter how strongly they may conflict with one’s `hunches’. It is cardinal that determinations of this nature are determined on a forensic basis as opposed to intuition. With some reluctance, I accept the core material claims made by the applicant. … I do not accept that the warrant for his arrest is genuine. … This suggests that the applicant exaggerated his claim, but logically this does not undermine the whole substratum of his case. It is understandable that asylum seekers at times are prone to exaggerate and that this may lead to an inclination to fabricate evidence.157. With considerable hesitation, the Tribunal accepts that the applicant was at [location] and he was taken away, mistreated in detention and released a few hours later. 158. The Tribunal’s own Guidelines on the Assessment of Credibility (July 2015) state this:11. In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true. 159. One of the fundamental principles of protection claims assessment is that applicants ought to be given the benefit of the doubt. The UNHCR Handbook states:[20][20] UNHCR Handbook, paragraph 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. […] 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.”160. The principle recognises that an applicant’s life and/or integrity may be put at grave risk if international protection is wrongfully declined.[21][21] “Beyond Proof: Credibility Assessment in EU Asylum System”, UNHCR, May 2013, accessed at on 23 June 2017.161. Decision makers from time to time use the so-called domino effect in relation to credibility assessment, that is, they reject one aspect of an applicant’s case and proceed from there to conclude that because one fact (whether material or not to the issues in the case) which is being asserted by the applicant is not true, therefore none of the applicant’s claims are true. The Tribunal has adopted the reverse logic in the present case. Because it has accepted that the 2016 summons is a genuine document, it has concluded that the summons must be related to events in 2013. Therefore, the Tribunal accepts the applicant’s response to the adverse information put to him under s.424A and gives the applicant the benefit of the doubt in relation to the alleged detention [in] 2013. 162. It is well established that evidence that the applicant had been persecuted in the past would give powerful support to the conclusion that the claimed fear is well-founded: Abebe v The Commonwealth (1999) 197 CLR 510 per Gleeson CJ and McHugh J at [82]. 163. The Tribunal further finds that the applicant holds anti-government views and this is why he supported the Blue Party.164. The Tribunal gives the applicant the benefit of the doubt and accepts that there are outstanding court proceedings against him and that because the applicant is in Australia he has failed to appear in court. 165. The available country information from reputable sources including DFAT, the US Department of States, the UK Home Office, Amnesty International and various international media indicates that political opposition activity in Ethiopia is severely repressed. 166. Opposition activists are arrested and anti-terrorism laws are used against them. Members of opposition parties are arrested, detained for long periods of time, tortured, disappeared, ill-treated and often killed. Even though the Blue Party is legal, the authorities have shown that they are prepared to fabricate charges against a Blue Party activist , a fictitious link to a prohibited organisation in order to achieve a conviction under anti-terrorism laws. 167. While the Blue Party is a legal opposition party, the country information, in particular in relation to Yonatan Tesefaye demonstrates that members of the Blue Party face a real chance of persecution for expressing even mild criticism of the government. 168. It cannot be said that [in] 2013 the applicant was merely at the wrong place at the wrong time. The authorities targeted the [Blue Party], rounded up, detained and mistreated people who were [there].169. DFAT’s assessment, set out above is that people who are openly critical of the government face a high risk of harassment, arrest and detention in Ethiopia and members and supporters of all opposition parties, legal and illegal, face a high risk of harassment and detention. 170. The Tribunal finds that although the applicant was detained for a relatively short period of time in 2011 and an ever shorter period in 2013, he suffered serious harm in the form of significant physical ill-treatment on both occasions.171. The applicant spoke convincingly at the first Tribunal hearing about his support for the Blue Party. The Tribunal finds that the applicant remains a supporter of the Blue Party and an opponent of the current government of Ethiopia. 172. Having accepted the genuineness of the applicant’s political opinion, the fact that he has previously been persecuted, and the existence of a court case against him in relation to the applicant’s association with the Blue Party, the Tribunal accepts there to be a real chance that the applicant will be of adverse interest to the authorities for reasons of his actual and imputed political opinion. While the applicant has not been politically active in Australia, he has a “history” with the Ethiopian authorities and he has been in Australia – a country with a small but vocal anti-government diaspora[22] – for almost four years. [22] See e.g. B. Hall, “There is no hope for her to survive: Ethiopian woman fears deportation”, The Age, 30 July 2015, accessed at on 23 June 2017.173. There is a real chance the authorities will arrest the applicant, interrogate him about the long period of time he spent in Australia and his support for the Blue Party, detain him for his failure to appear in court in November 2016, and subject him to significant physical harassment or ill-treatment, detain him, try him on “tumped up” charges, convict him in a sham trial and sentence him to long term imprisonment.174. Any of these acts, mentioned in the paragraph immediately above, individually and therefore collectively, would constitute serious harm for the purpose of s. 91R(1)(b) of the Act. The Tribunal further finds that the essential and significant reason for the harm will be the applicant’s political opinion as per s. 91R(1)(a) and that the conduct feared by the applicant is systematic and discriminatory as per s. 91R(1)(c). 175. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention and therefore, the applicant satisfies the criterion set out in s.36(2)(a).State protection176. In relation to state protection, the Tribunal finds that as the harm the applicant faces is at the hands of the Ethiopian government and security forces, he will be unable to obtain protection by those authorities from the harm he faces.Internal relocation177. In relation to internal relocation, the Tribunal is satisfied that the real chance of persecution exists in the country as a whole and that safe relocation within the country is therefore not reasonably open to the applicant.178. 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).179. The Tribunal is not satisfied that the other applicants (the first named applicant’s wife and [child]) are persons in respect of whom Australia has protection obligations for the purposes of s.36(2)(a) or (aa). 180. However, the Tribunal is satisfied that the other applicants 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.Dissenting reasons by Senior Member Dragovic181. In considering whether the applicant will face persecution upon return to Ethiopia the first question that the Tribunal must consider is whether the applicant faces any harm stemming from his past activities. The second is a forward looking one, namely, were he to return to Ethiopia would the applicant, free from fear, continue to participate in activities which brought him to the attention of authorities in the past such as being an active member of the Blue Party or serving God through [a Denomination 1] church. The correlated question is whether the risk that any such activity would attract amounts to a real chance of serious harm or a real risk of significant harm.182. The applicant has claimed that there was a summons received by his brother. I diverge here from my colleagues and do not accept that the summons is genuine. I find it lacking plausibility that the applicant's brother would receive a summons but fail to mention this to his brother for a period of three months. This is particularly difficult to accept considering that at this time there was a state of emergency and it is reasonable to assume that the applicant's brother would have known the very serious consequences of a summons. Furthermore, that the summons appears on the radar in November 2016, three years after any engagement by the applicant with the authorities, adds further doubts in my mind about the applicant's claims that the summons is genuine. As such I do not accept that there is a genuine summons pending.183. Without the summons there is no evidence that would suggest that the applicant is of any interest to the Ethiopian authorities for his past activities. I do not accept that the applicant faces any harm stemming from his past engagement with authorities including his detention at [location] and prior encounters.184. I now turn my mind to consider the second question, one of a forward looking nature. We have accepted that the applicant joined the Blue Party in February 2013 while his wife was [in] Australia. He claimed and we accepted that he did not participate in any activities of the Blue Party other than one [in] which he claimed to have been detained. We have also accepted that the applicant has not participated in political activities while free from fear in Australia for a period of over three years. The Tribunal has noted that it has considerable hesitation in accepting that the applicant was even at [location] as claimed. Without any other activity while in Ethiopia or in Australia I find that the applicant, free from fear, would not participate in political activities in the reasonably foreseeable future either in Australia or in Ethiopia. For this reason I find that the applicant under this iteration of his claim does not face a real chance or a real risk of harm.185. Unlike the Tribunal’s view on the applicant’s claims of being at [location], the applicant was found to be ‘compelling, coherent and persuasive’ in his discussions about his commitment to his Church. I note the High Court’s guidance in MIEA v Guo, ‘Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’[23] The applicant has provided information about his detention by authorities during 2011. He explained how despite repeated attempts by police to have him convicted the judiciary remained steadfast and released him without conviction but leaving what he described as an open charge, what I suspect amounts to a warning. [23] MIEA v Guo (1997) 191 CLR 559 at 574186. While we have accepted that this occurred there is no evidence nor claims by the applicant that it was a state sponsored agenda against [Denomination 1] church activities. The applicant himself noted that he was arrested for being a part of an illegal gathering of more than three people but that the judge released him because he was found to be preaching—an act that is not illegal. 187. Country information notes that there is a state of emergency in Ethiopia which was declared nationally on 9 October 2016 but ‘Before it was renewed, the state of emergency was modified, officially reinstating the requirement of search warrants and doing away with detention without trial.’[24] [24] IRIN, Ethiopia extends emergency as old antagonisms fester, 3 April 2017, available at: 17 May 2017]188. While I accept that it is possible that the laws will change again and that detention without trial may be legal or that police will act extra-judicially I also note that the applicant’s own experience shows an independent and fair judiciary despite an indiscriminate and violent police force. It is the role of the Tribunal to weigh these two competing forces and reach a conclusion as to whether he faces serious or significant harm. In doing so I find that the applicant faces a remote chance of serious harm and similarly a remote risk of significant harm was he to return and take up a similar job serving the poor on the streets of Ethiopian cities. 189. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa). DECISION190. 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.Filip GelevMemberDenis DragovicSenior MemberSophia PanagiotidisMember accessed on 27 February 2017.

Evidence

Evidence Before The Court

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 (wife) and child.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether Australia has protection obligations in respect of the first named applicant. For the following reasons, the Tribunal, by a majority, has concluded that the matter should be remitted for reconsideration. Section 42 of the AAT Act provides a mechanism by which disagreements are resolved. Under s.42(1) where the Tribunal is constituted for the purposes of a proceeding by 3 members, a disagreement between the members is to be settled according to the opinion of the majority of the members. The findings and the ultimate decision in this case is by majority, namely Member Gelev and Member Panagiotidis. Senior Member Dragovic disagrees with some of the majority’s factual findings, in particular the findings in relation to a document provided by the applicant (see below at paragraph 155) and with the majority’s conclusions that Australia has protection obligations. The Tribunal findings at paragraph 155 are only by majority. Senior Member Dragovic’s dissenting reasons are set out at paragraphs 181-189.Country of reference Based on the applicants’ passports, copies of which were provided to the Department, and the applicants’ evidence, the Tribunal finds that the first and second named applicant are Ethiopian nationals and the Tribunal has assessed their claims against that country for the purposes of s.36(2)(a). The third named applicant is a [Country 1] national, but a member of the same family unit of the first named applicant. On the evidence before it, the Tribunal finds that the first and second named applicants do not have the right to enter and reside in any third country. The third named applicant was born in [Country 1] and travelled to Australia on a [Country 1] passport. At the hearing the Tribunal observed that Ethiopian law does not allow dual nationality[1] and asked whether [the third named applicant]’s mother and biological father had renounced [the third named applicant’s] Ethiopian nationality. The second named applicant said that [the third named applicant] is entitled to Ethiopian citizenship, but it is up to [the child] when [he/she] is older to choose to remain a [Country 1] citizen or to take up Ethiopian citizenship. [1] Ethiopian Nationality Law Proclamation No. 378/2003, accessed at on 27 February 2017. See also IRB - Immigration and Refugee Board of Canada: Ethiopia: Requirements and procedures for an individual born in Ethiopia to Ethiopian parents to reclaim citizenship, including if the individual holds citizenship in another country [ETH104896.E], 18. Juni 2014 (verfügbar auf ecoi.net)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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