1507734 (Refugee)

[2017] AATA 1048

1507734 (Refugee) [2017] AATA 1048 (13 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1507734

COUNTRY OF REFERENCE:                  Ethiopia

MEMBER:Filip Gelev

DATE:13 June 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 13 June 2017 at 11:16am

CATCHWORDS

Refugee – Protection visa – Ethiopia – Political opinion – Oromo Liberation Front supporter – Detention – Interrogation

LEGISLATION
Migration Act 1958, ss 36, 65, 91R, 91S, 499
Migration Regulations 1994, Schedule 2

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] January 2014 and the delegate refused to grant the visa [in] May 2015.

3. The applicant appeared before the Tribunal on 4 April 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 applicant was represented in relation to the review by his registered migration agent.

   RELEVANT LAW

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

   Refugee criterion

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

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

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

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

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

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

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

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

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

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

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

    Section 499 Ministerial Direction

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in this case is whether Australia has protection obligations in respect of the applicants. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    Country of reference

18. Based on a copy of the applicant’s passport provided to the Department of Immigration and his oral and written evidence, the Tribunal accepts that the applicant is a national of Ethiopia and the Tribunal has assessed his claims against that country for the purposes of ss.36(2)(a) and (aa).

19. On the evidence before it, the Tribunal finds that the applicant does not have the right to enter and reside in any third country (s.36(3)).

    Background and claims

20. The applicant’s background and claims are set out in the application form and a statutory declaration, signed on 6 May 2014.

21. The applicant was born in the town of [Town 1], Oromia region, in central Ethiopia.

22. The applicant is from a Tigrinya-speaking family. His father was Eritrean and the government accused the whole family, including the applicant, of being against the government.

23. He became qualified as a Catholic priest in July 2005 and was appointed to work in an Oromo speaking town in [Ethiopia] ([Town 2]).

24. At the time there were anti-government demonstrations after the disputed May 2005 elections. After the elections the government cracked down on opposition parties. The applicant’s parishioners asked him to intervene on their behalf in relation to the mistreatment of family members.

25. He started preaching about justice, equality, human dignity and democracy.

26. The government became aware of this and of his heritage and of his support for the banned Oromo Liberation Front (OLF).

27. [In] August 2010, when the applicant was visiting his family in [Town 1], [government] soldiers came around 8pm. Two soldiers took away his father and his [relative] who was an actual member of the OLF. The other [soldiers] searched the house until 11pm.

28. The next evening, again at around 8pm, [government] soldiers came to the house and took the applicant to the police station. He was interrogated by [commander]. After [hours] of questioning – and accusing the applicant of being with the OLF – the applicant was taken to a prison cell.

29. He was held in prison for [number] days and given only “one bread and one cup of tea” a day. He was beaten [several] times during this period.

30. On [date][1] or [date][2] August 2010 he was released after he promised to tell the government if he hears any information about the OLF. He also signed a paper – a confession or an undertaking of some kind – that he was not allowed to look at before signing.

    [1] See question 44 of Part C, Form 866.

    [2] See second last paragraph, p. 4 of statutory declaration of 6 May 2014.

31. In September 2010 the applicant informed his superiors in the Catholic Church about these events. They arranged for him to go to [Country 1] for three years. He left for [Country 1] [in] November 2010 and stayed there until [October] 2013.

32. While he was in [Country 1], the applicant travelled to [Country 2] (for a “meeting” from [January] to [February] 2013), to [Country 3] (for an interreligious workshop [from] [date range] August 2011) and to Ethiopia for parish retreats on four [occasions]. After the end of three years in [Country 1], he returned to Ethiopia [in] October 2013.

33. The applicant obtained a [temporary] visa to Australia in June 2013, but he was very busy and could not make it on time to visit Australia while he was still in [Country 1].

34. According to his statutory declaration, on 17 October 2013, when the applicant was in Addis Ababa and was about to travel to his home area, his mother called him to tell him that his father had been arrested. The applicant was very shocked. However, he decided that he may be in danger and immediately bought a plane ticket for Australia as he still had a visa to Australia. It was extremely expensive, but he wanted to get out as soon as possible. He flew out [in] October 2013.

35. [Later in] October 2013 the applicant called his family and they told him that the situation was worse. They did not know the father’s whereabouts. Soldiers had come in search of the applicant. They told the family they had information that the applicant had returned from [Country 1]. They took away the applicant’s [relative].

36. According to the same statutory declaration, signed in May 2014, the family still did not know where his father was “after four months”. As the delegate pointed out in the Department’s decision the period from October 2013 to May 2014 was closer to six months.

37. Submissions from the applicant’s representatives, dated 31 March 2017, contain a misguided attempt to resolve this problem. They argued that the delegate had misunderstood the applicant’s reference to “four months” in his statutory declaration:

    The applicant had in fact made a statement … that he recalled having spoken to his mother ‘4 months’ after his father was taken away saying that it had been that long since the date of the conversation that he was arrested.

38. At the Tribunal hearing the applicant said this was incorrect. He had prepared a draft statutory declaration with his lawyers four months after his father disappeared in October 2013. He did not get the chance to finalise and sign the statutory declaration until May 2014. The Tribunal accepts this explanation.

39. The applicant’s representative at the Tribunal hearing said she was not the author of the March 2017 submissions. The Tribunal finds these submissions are incorrect and not based on the applicant’s instructions.

40. The Tribunal notes that it is both unethical and against the Migration Agents’ Code of Conduct to

    make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.

41. The Tribunal expresses its concerns in relation to these submissions, although it considers that in the present case the migration agent was sloppy and did not seek proper instructions in relation to these submissions, rather than engaging in the making of statements which she knew or believed to be inaccurate.

42. According to the submissions of 31 March 2017, the applicant travelled back to Ethiopia in August 2011 to join other priests on the trip to [Country 3]. He travelled back to in late August-September 2011, again in August-September 2012 and August-September 2013 for mandatory parish retreats. [In] October 2013 he returned to Ethiopia believing the “issue had calmed down only to discover his father had been arrested and that no one knew his whereabouts”.

43. At the Tribunal hearing, the applicant said that at present he goes to [an] Orthodox Church, because of the community he has found. [Details deleted].

44. The last time he went into a Catholic Church was at Christmas. He has spoken to the Catholic Bishop and may go back to being a priest if he is granted a visa to remain in Australia. While he is on a Bridging visa he cannot work for the church. Both his parents are Christian Orthodox, but he still considers himself to be a Catholic.

45. He explained to the Tribunal that he is fluent in Oromo (because he grew up in the Oromia region and most people around him spoke it), Amharic (this was the language used in school and church) and Tigrinya (the language he and his family spoke at home).

46. When asked about his father’s current situation, the applicant said that his father is unemployed and very sick, but no longer in detention. When asked whether his father had been detained in 2013, he said every time there is a problem, his father gets arrested, because he is Eritrean. When asked what problem arose in 2013 that caused the authorities to detain his father, the applicant said he thought the authorities were looking for him but only found his father and still they decided to detain his father.

47. In terms of contact with his family, the applicant said that he had regular, but not frequent, contact with them. He last spoke to his parents in January, for Christmas (the Ethiopian Orthodox Christmas is on 7 January). He is afraid to say too much over the phone and this means when they speak on the phone they just exchange pleasantries. When he was studying to be a priest for eight years, he became used to not speaking to his parents much. He was allowed a few minutes a month which was only enough to say hello to the family.

48. The Tribunal asked the applicant why he was born in [Town 1] in the Orimia region, if he was from a Tigrinya speaking family. He said that his father, after marrying his mother, found a [job] in Oromia. The applicant then handed up a letter advising his father that he was getting sacked from his job. The letter was from 1998 (in the Gregorian calendar).

49. The applicant said that his father has not worked since and he is not allowed to work in the private sector. The applicant told the Tribunal that while Eritrea had first become independent from Ethiopia in 1991, the big purge of Eritreans took place in 1998 (after a further war between Ethiopia and Eritrea).

50. The applicant said that prior to 1998 his family did not have any problems due to their Eritrean heritage. He was doing a [course] in Addis Ababa when he heard in 1998 that his father had become unemployed. He said even at that time he personally did not suffer any discrimination, because he was under the protection of the Catholic Church.

51. While he was studying to become a priest they (the students) were not allowed to talk about politics. It was not until he obtained a job in the Oromia Region in July 2005 that he ran into problems.

52. His diocese was in Oromia Region. There were two priests at the [church]: the applicant and [one other]. The other priest was the parish priest, the applicant was [in another role]. He said that at that time he witnessed protests and people being killed by the government. He said that he also went to prisons with families of people who have been imprisoned.

53. He said that he was preaching both to students from the minor seminary and to parishioners (he and the other priest took turns on a weekly basis preaching on Sundays) about human rights, equality, freedom, all things from the holy Bible. When the Tribunal pointed out he had earlier said that he was not allowed to get involved in politics as a Catholic priest, he said that he could not remain silent when these things were happening and that he was not getting directly involved in politics. He said that the Catholic Church did tell him that what he was doing was dangerous, but the applicant insisted on talking about what he believed in.

54. He was not physically harmed in 2005. The applicant said that an officer in one of the prisons warned him when the applicant was with parishioners visiting their children in prison. This was not the first time he had gone to a prison. He was simply doing his duty. When he received this warning he was shocked that the government knew who he was – knew about his father’s Eritrean background. The applicant had grown up in the region, he was speaking in Oromo, but the officer made it clear that they knew the applicant’s background. He took the officer’s words as a threat. He said he was not arrested in 2005. He continued to preach in Church and to visit prisoners. He told the Tribunal a letter was received at the church saying words to the effect of “this church belongs to the opposition”; he also received threatening phone calls.

55. When asked why in his opinion he was not detained and mistreated 2005, he said that he thought it was probably because the authorities respect the Catholic Church. Even Meles Zenawi, the late Prime Minister of Ethiopia from the governing Party, was a Catholic.

56. When asked whether anything happened between 2005 and 2010, he said no. During this period there were mainly problems in Ethiopia around election time and the elections took place in 2005 and 2010.

57. When asked about his association with the OLF, he said that through his work as a priest, he knew who belonged to the organisation through confessions. Sometimes he would hear about meeting places and OLF activities. He was, however, not allowed to join the OLF or to attend meetings.

58. The applicant was asked about the events that took place in 2010. He described how in 2010 he was at home, while on leave from the church; his diocese, [Town 2], was about [number] km from his home in [Town 1]. [In] August his [relative] and his father were arrested. The next day the applicant was arrested as well. The oral evidence was consistent with the written evidence in the application and the statutory declaration.

59. The applicant said he still had [scars and injuries].

60. He said that when he was arrested he knew quite a lot about the OLF, but he did not disclose anything to the authorities: he referred to the religious vows of a priest, including the seal of the confession.

1. When asked why he was not arrested earlier, he said it may be that in [Town 2] he was under the protection of the Catholic Church, and the parishioners would have been angry. At his parents’ house he had no protection.

2. The Tribunal observed that in his statutory declaration he said the military arrested him, but they took him to a police station. The applicant said that this was correct: soldiers arrested him and took him to a prison, which was attached to a police station. He was in the custody of the military and [the commander], the man who interrogated him, was a military officer.

3. He explained that he was released, because he did not give away any incrimination information. During his detention he was repeatedly beaten, but not tortured. The Tribunal asked him about the apparent inconsistency in relation to the date of his release – [date] or [date] August (see at paragraph 30 above). He explained that there was no inconsistency. In his application he said [in] August 2010 he was forced to sign a document. [In] August 2010 he was released.

4. The applicant was asked why after going to [Country 1] he travelled back to Ethiopia some four times, if he was concerned for his safety (technically he went back five times but the Tribunal acknowledges that the fifth time was at the end of his three year term in [Country 1] and perhaps he had no choice). He replied that while in [Country 1] he still belonged to the Ethiopian parish, not the [Country 1] one. He had to go back and participate in elections and do many of the things that a local Ethiopian priest has to do. This included parish retreats which always happened before new year (the Tribunal is mindful that the year in the Ethiopian calendar starts on 11 September and that explains the dates of the parish retreats, see the applicant’s travel dates at paragraph 32 above).

5. The applicant travelled to Ethiopia twice in 2011, both before and after he went to [Country 3]. He was asked why he had to go to Ethiopia in early August 2011, on the way to [Country 3], instead of going from [Country 1] directly to [Country 3]. He said it was not his decision. It was the Church’s decision. He travelled to Ethiopia first and from there to [Country 3] with [other] Ethiopian priests.

6. The applicant said that his father had been detained [in] October 2013; the applicant’s mother told him about it [in] October 2013. The applicant repeated his earlier claim that his father was always in and out of prison. The Tribunal asked why – if his father was arrested on a regular basis and the applicant had not been stopped at the airport on the way into Ethiopia – he still panicked, decided he must leave the country immediately and bought an expensive ticket to fly to Australia. He said he was worried that he may be arrested. The fact that he was not stopped at the airport meant nothing, the authorities could catch him later anywhere in Ethiopia.

7. The applicant was asked why he did not apply for protection in [Country 2]. He said he was there on a church trip and to fulfil his religious duties. He said that he belongs to [an organisation that originated] in [Country 2]. Going to [Country 2] for him was like visiting one’s mother’s home.

8. The Tribunal noted that the applicant was referring to his father’s ethnicity as one of the main sources of his problems. The applicant was asked why he was at risk on return to Ethiopia for that reason, none of if his siblings in Ethiopia has been persecuted. He said that he is different from his siblings, because he is a priest and he has to know what happens in the Oromo community. 

9. The applicant was asked why he thought that he was being targeted in 2013 if he had been out of the country for three years – and thus he was not preaching against the government – and he had not been arrested on his trips back to Ethiopia. He said that while in [Country 1] continued to talk about issues such as justice, freedom and equality. He was not directly involved in politics, but he was still talking about such things.

10. The applicant told the Tribunal he has not participated in any protests in Australia. He said this was because his own status was unresolved and because he is afraid for his family. The Tribunal pointed out that he was not afraid to speak his mind in Ethiopia when his family could be targeted as well. The applicant explained that if he is active in Ethiopia the authorities could arrest him, whereas if he is active in Australia, his family may be targeted instead of him.

11. The Tribunal gave the applicant until Friday 21 April 2017 to provide evidence in support of his claims that in 2010 he had to be sent to [Country 1] for his own safety.

12. On 24 April 2017 the Tribunal received a letter, dated [in] April 2017, from the Ethiopian Catholic Church, Apostolic Vicariate of [Town 2], signed by the Most Reverend [named]. The letter confirms a number of the applicant’s claims:

    -    That his father is “Eritrean”

    -    That he is a Catholic priest

    -    That he was detained in August 2010, severely beaten and mistreated

    -    That he was accused of being involved with the Oromo Liberation Front

    -    That the Catholic Church organised his “missionary dispatch” to [Country 1], because he was fearful for his life.

13. The letter is written in beautiful English, signed and stamped. The Tribunal accepts it to be a genuine letter that corroborates the gist of the applicant’s claims.

    Country information

14. A recent report by the Carnegie Endowment for International Peace summarises the political situation in Ethiopia thus (footnotes omitted):[3]

    [T]he state has become increasingly intertwined with the ruling party, and political and economic power has gradually become concentrated in the hands of a small elite. Ethiopia’s regions are governed by ethnoregional parties that are de facto subordinate branches of the EPRDF—which remains dominated by the ethnic Tigray, who make up only 6 percent of Ethiopia’s total population. Party leaders know that if the EPRDF were to open space for civic mobilization, it could mean the end of Tigray rule. The opposition’s unexpected gains in the 2005 election justified these fears. Throughout the 1990s and the early 2000s, Ethiopia had held regular elections, but the hegemony of the ruling EPRDF was never threatened. The opposition remained divided, and the ruling party used coercive means and its incumbency advantage to prevent rival parties from participating on a level playing field.464 When political space temporarily opened up in the lead-up to the 2005 polls and opposition actors unified, the EPRDF’s grip on power proved to be tenuous. As a result, the EPRDF under the leadership of Zenawi embarked on a de facto restoration of the one-party state.

    [3] S. Brechenmacher, “Civil Society Under Assault: Repression and Responses in Russia, Egypt and Ethiopia”, Carnegie Endowment for International Peace, 18 May 2017, at p. 74, CISEDB50AD4351.

15. The most recent DFAT Country Information Report on Ethiopia (1 April 2016) uses unusually categorical language:

    3.36In practice, political freedoms in Ethiopia are very restricted. Opposition groups and independent commentators such as journalists and bloggers who oppose the government’s policies are regularly harassed and detained…

    3.37Prominent members of all opposition groups—including legal opposition groups not classified as terrorist organisations—are regularly monitored, harassed, arrested and either charged under the ATP or held without charge. Periods of detention can vary from a few days to several years. There were reports of a crackdown in the lead-up to the 2015 elections. For example, on 8 July 2014, four prominent members of three opposition parties, the Unity for Democracy and Justice, the Arena Tigray Party and the Blue Party, were arrested and held in the Maekelawi detention facility. At least one of those arrested claimed to have been tortured in detention, and all were reported to have been denied access to lawyers and family members. The four were charged in October 2014 under the ATP. In August 2015, more than 12 months after their arrest (and several months after the 2015 elections) the Federal Court found no evidence that these individuals had links to terrorist acts or organisations.

    …

    3.41DFAT assesses that people who are openly critical of the government face a high risk of harassment, arrest and detention in Ethiopia. This is particularly the case for leaders of opposition parties and organisers of protests against the government or its policies. Members and supporters of all opposition parties, legal and illegal, face this high risk of harassment and detention. There are also reports that family members and neighbours of members and supporters (or perceived supporters) of opposition groups may be harassed, arrested and detained by authorities.

16. The US Department of State annual Report on Human Rights Practices 2016, depicts a grim picture[4]

    The most significant human rights problems were security forces’ use of excessive force and arbitrary arrest in response to the protests, politically motivated prosecutions, and continued restrictions on activities of civil society and NGOs.

    Other human rights problems included arbitrary killings; disappearances; torture and other cruel, inhuman or degrading treatment or punishment; harsh and life-threatening prison conditions; arbitrary arrest, detention without charge, and lengthy pretrial detention; a weak, overburdened judiciary subject to political influence; infringement on citizens’ privacy rights, including illegal searches; a lack of participatory consultations and information during the implementation of the government’s “villagization” program; restrictions on civil liberties including freedom of speech and press, internet freedom, academic freedom and of cultural events, and freedom of assembly, association, and movement; interference in religious affairs…

    Impunity was a problem. The government generally did not take steps to prosecute or otherwise punish officials who committed abuses other than corruption.

    [4] US Department of State, "Country Report on Human Rights Practices 2016 – Ethiopia", 03 March 2017, OGD95BE926895.

17. The UK Home Office reported the following:[5]

    Non-armed opposition groups

    2.3.10 Prominent opposition party members and activists have been subject to arbitrary arrest and detention, particularly at times of political tension, e.g. prior to elections and during widespread protests such as those against the expansion of Addis Ababa (see Treatment of opposition groups and the country policy and information note on Ethiopia: Oromos and the Oromo protests).

    2.3.11 Prominent members of all opposition groups, not just those classified as terrorist organisations, are also regularly monitored, harassed, and either charged under the Anti-Terrorism proclamation or held without charge. Such people have reportedly been tortured and even been subject to extrajudicial killings (see Arbitrary arrest, detention and abuse).

    [5] “Country Information and Policy Note Ethiopia: Opposition to the government, UK Home Office, December 2016, accessed at on 5 June 2017.

18. Since October 2016 there has been a state of emergency declared in Ethiopia. In December 2016 the UK Home Office issued “Country Information and Guidance Note, Ethiopia: Oromos and the ‘Oromo Protests’”. Relevantly it stated:[6]

    [6] "Country Information and Guidance Note – Ethiopia: Oromos and the 'Oromo Protests'", UK Home Office, 05 December 2016, OGD7C848D102.

    2.2.5 Following plans announced by the government to substantially expand Addis Adaba (aka ‘the Addis Adaba Masterplan’), which would have reportedly incorporated around 30 towns and villages in the Oromia region and displaced thousands of farmers from their land without adequate compensation, there were protests across the Oromia region in April-May 2014 and from November 2015 into 2016.

    2.2.6 Whilst initially and primarily a protest (or series of protests) against the perceived injustice of – and the lack of consultation on – the Masterplan, the protests also triggered and raised long-standing grievances of the Oromo people.

    2.2.7 In response, the government deployed the police, paramilitary police and the army to quell the protests. The security forces reportedly often used force to do so and, on occasions, live ammunition when firing into crowds resulting in the deaths of some protestors. There are also reports of an unknown number of arbitrary arrests, some of which resulted in people being beaten and tortured, and prolonged detention.

    2.2.8 In October 2016 a state of emergency was introduced and which has led to the number of protests to subside. This was followed in November 2016 by a government cabinet reshuffle which has given high profile ministerial appointments to those from the ethno-national groups most associated with the protests (see government response to the 2014 protests and government response to the 2015/16 protests).

    2.2.10 However, whilst the protests, in particular those in 2015/16, appear to be largely spontaneous – they lacked proper organisation and organisers – the authorities are reported to have targeted those persons perceived to be the instigators and/or those in a position of influence to mobilise others. Those particularly likely to be arrested for involvement in the protests include:

    a. University students

    b. Teachers

    c. Farmers

    d. Political leaders and government officials

    e. Persons previously suspected of criticising or opposing the government

19. According to media reports from late May 2017:[7]

    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.

    [7] CXC9040668394: "Ethiopia jails opposition politician for six years over Facebook post", Reuters, 25 May 2017, >

    Other sources indicate 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".[8]

    [8] “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 OLF, which is a declared terrorist organisation. According to Amnesty International, Mr Tesfaye has no demonstrated links to the OLF.[9]

    [9] Ethiopia: Release opposition politician held for Facebook posts, Amnesty International, 6 May 2016, accessed on 5 June 2017 at

20. Relations between Eritrea and Ethiopia remain tense. In March 2017 the Ethiopian government accused Eritrea of sponsoring a rebel group which allegedly tried to blow up a dam in Ethiopia. The Eritrean government said the suggestion that it sponsored terrorism was “preposterous and peddled for some sinister reason”. According to Newsweek:[10]

    Ethiopia and Eritrea have a history of tense relations. Eritrea only seceded from Ethiopia in 1991 after a 30-year independence war, and the two countries have regularly clashed on the boundaries of their borders. Tens of thousands of soldiers on both sides were killed in a border war focused on the town of Badme between 1998 and 2000.

    Ethiopia has also accused Eritrea of sponsoring anti-government protests, led by the Oromo and Amhara ethnic groups, which have been occurring regularly since November 2015. Eritrea has denied the allegation.

    [10] CXC9040663701: "Ethiopia and Eritrea Trade Accusations Over Grand Dam ‘Attack’", Newsweek, 02 March 2017, fear of persecution

21. The applicant has claimed that he has a well-founded fear of persecution for a number of reasons. The Tribunal accepts that he does have a well-founded fear of persecution for his political opinion.

22. The applicant responded in a logical and clear manner to the Tribunal’s questions and concerns. The letter from the Catholic Church, provided to the Tribunal after the hearing, was entirely consistent with the applicant’s claims and has high probative value.

23. Overall, the applicant’s evidence was internally consistent and coherent, and it was presented without embellishments and exaggerations, with one exception. The Tribunal is not satisfied that the applicant’s father was arrested around the time when the applicant returned to Ethiopia in October 2013 and that at that time the applicant was of any immediate interest to the authorities. The Tribunal considers that if this were the case, the applicant would have been stopped at the airport on his way from [Country 1] into Ethiopia or on his way out to Australia.

24. The available country information from reputable sources including DFAT, the US Department of States, the UK Home Office, Amnesty International, Human Rights Watch and various international media referred to in the applicant’s representatives’ submissions indicates that political opposition activity in Ethiopia is severely repressed.

25. 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.

26. The Tribunal accepts that the applicant holds anti-government political views and, more importantly, that he is imputed with holding such views.

27. The Tribunal is mindful that the applicant travelled from [Country 1] back to Ethiopia on a number of occasions and he was able to enter the country and leave again without any hindrance.

28. However, the question before the Tribunal is whether the applicant faces a real chance of persecution now or in the reasonably foreseeable future. The applicant has been detained in the past and accused of links to the OLF. The Catholic Church sent him to [Country 1] – and the applicant travelled back to Ethiopia – on official church business; in addition, [Country 1] is not a country with a known Ethiopian diaspora and with opposition activists, whereas Australia has a small but vocal community of anti-government activists.

29. If the applicant were to return to Ethiopia now or in the reasonably foreseeable future, his circumstances would be very different compared to his situation in the period 2010-2013:

    -    He has been living in Australia since 2013 and he will have no way to account for his time here as he is no longer working for the Catholic Church. The authorities may well suspect that he has sought asylum in Australia and that he has engaged in politics

    -    The applicant is not only no longer a member of the Catholic clergy but he goes to [a] church

    -    In the 2015 parliamentary elections there were no opposition politicians elected to parliament and the government had no need to engage in a serious crack down similar to what occurred in 2005. The scale and intensity of anti-government protests in 2015-2016, by Oromo people in particular, seems to have taken the government by surprise and ultimately led the government to declare a state of emergency

    -    The country information cited above demonstrates that since introducing a state of emergency in October 2016 the government has once again focused excessively on fighting the real or imaginary threat posed by the OLF. Political activists from legal opposition parties are accused of belonging to the OLF (see at paragraph 81 above) and Eritrea is accused of supporting the OLF (see at paragraph 82 above).

1. There is a real chance that the applicant will be stopped at the airport and interrogated because he was perceived as an OLF sympathiser and supporter, possibly a member, in the last. He has been absent from Ethiopia for several years and he has been in Australia. He will be returning to Ethiopia at a time when the OLF is once again seen as a serious threat.

2. There is a real chance the authorities will arrest the applicant 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.

3. 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).

4. 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 protection

5. 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 relocation

6. 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.

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

   DECISION

8. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Filip Gelev
   Member