1508537 (Refugee)

1508537 (Refugee) [2018] AATA 1737 (22 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1508537
COUNTRY OF REFERENCE:                  Eritrea
MEMBER:Peter Vlahos
DATE:22 May 2018
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 22 May 2018 at 6:23am

CATCHWORDS
Refugee – Protection visa – Eritrea – Social group – Former government employee – Male failed to complete national service – Illegal departure – Viewed as a ‘traitor’ – Fear of state government – Relocation issues – Decision under review remitted
LEGISLATION
Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1
MZYLH v Minister for Immigration & Anor [2011] FMCA 888
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
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 and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Eritrea, applied for the visa on 28 February 2014 and the delegate refused to grant the visa on 12 June 2015.
The applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments. The Tribunal did not receive any oral evidence from any witness or interest third parties.
The applicant was represented in relation to the review by his registered migration agent and solicitor. The representative attended the Tribunal hearing.
The hearing was conducted in the English language.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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).
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.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of Nationality and Identity
Based on copies of the passport of the applicant, which were provided to the Department of Immigration and Border Protection (the ‘Department’), their applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Eritrea and assessed his claims against that country in relation to ss.36(2)(a) and 36(2)(aa) Act. On the basis of the above-mentioned evidence, the Tribunal further accepts her identity as claimed.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to material referred to in the delegate’s decision. The applicant provided a copy of the departmental record of decision to the Tribunal with the review application.[1]
The issue in this matter
[1] AAT File no. 1508537 Folio no. [1]-[9]
The issue in this case is whether Australia has protection obligations in respect of the applicant. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background the applicant personal and migration history
The Applicant is [age] year old male from Asmara, Zoba Maekel, Eritrea.
The applicant declares his ethnicity as Tigrinya and his religion as Christian (Pentecostal). He states that he can read, write and speak in Tigrinya and English. His parents [and siblings] live in Eritrea. Prior to his arrival in Australia, he worked in [Country 1] from January 2012 until July 2013 as [Occupation 1].
The applicant first arrived in Australia on 22 June 2013 on Eritrean [passport], the holder of a Class TU Subclass 573 (Higher Education Sector) student visa which remained valid until 16 August 2014. The applicant applied for a Protection (Class XA) visa on 28 February 2014. The applicant has not departed Australia since his initial arrival on 22 June 2013.
Evidence before the Tribunal at the Hearing on 2 May 2018
The applicant’s claims for protection
The applicant’s written claims for protection can be summarised as follows:[2]
[2] Ibid AAT File and see Department of Immigration and Border Protection File [number] Folios [40]-[46]
§He is an Eritrean national. After completing eleven years of formal education he went to Sawa military training sector [in] [year] to take part in the six month military training as part of his 18 month compulsory national [service].
§After four months military training he received his University results and was released from the military to attend [university]. In [year] he completed his [course] but had to complete one year university service before he could graduate, officially graduating in [year].
§The same as every University graduate he still had to serve in the national service program and continued to serve in government organisations as a civil servant. As part of his duty he was assigned to [a unit] as [Occupation 1]. All his movements were limited to the vicinity of Asmara with a two month validity pass paper.
§Although the 1992 National Service proclamation clearly states that all citizens between 18 and 40 are to serve for 18 months, the reality is that the service is indefinite. Also men above the age limit are serving.
§His father served without any income for almost ten years before being released in 2004 due to serious illness, despite having [ a number of] children.
§Since graduating he [the applicant] was forced to work for the government for [amount] Eritrean Nakfa barely enough for transportation. He kept studying, but decided to flee Eritrea despite the risks of being shot and killed crossing the border to Sudan illegally.
§In Eritrea civil servants are forced to complete the curriculum of the People’s Front for Democracy and Justice (PFDJ) in the Nakfa Cadre School. He was chosen to attend the training program in June 2011. His friend came back completely brainwashed and he decided he could not go as he believes in democracy and is opposed to the PFDJ dictatorship.
§He contacted a relative in Sudan who helped him find a smuggler. There were 11 people in the pickup and after five hours drive they crossed the border on foot at night. He then proceeded to Khartoum by car, which was also extremely dangerous.
§Four months later, his parents were fined [amount] Eritrean Nakfa because he had dodged the draft.
§Since arbitrary detention and deportation were a constant risk in Sudan, he used a relative in [Country 1] to get him an employment visa for [Country 1]. He started work there in January 2012 and worked 18 months before coming to Australia.
§He obtained a student visa in June 2013 and arrived on 22 June 2013.[Sentence deleted].
§If he [the applicant] returns to Eritrea he would be imprisoned as a traitor and defector. His friend with a similar background was deported from [another country] and then imprisoned for two years in an underground prison, where torture and ill treatment are commonplace.
The applicant was invited by the Department to attend a Protection visa interview on 20 May 2015. According to the departmental records the applicant did not attend nor did he provide the Department with reasons why he could not attend.[3]
The applicant’s submissions
[3] Ibid AAT File Folio [5]
In summary, the applicant’s lawyer and registered migration agent made the following submissions on the applicant’s behalf. First, the applicant was [age] year-old national of Eritrea. He is ethnically Eritrean of Christian faith. Second, the applicant fears that if he is forced to return to Eritrea, he would be subjected to serious harm amounting to persecution from the Eritrean government for reasons of his ‘actual and imputed political opinion’ against the government, for his ‘membership of a particular social group being a person who had left Eritrea illegally and being ‘a male between 18 and 40 years of age’ who have ‘failed to complete national service’ and are considered ‘traitors’ or ‘deserters’ by the Eritrean government authorities. Third, the applicant invited upon himself consequence for having sought asylum in a foreign country.
The applicant’s fears it was submitted were “strongly corroborated” by “recent” country information, which indicated a “high level of risk that went beyond “real chance” or “real risk”.
The applicant fears the Eritrean government and its agents, and the applicant cannot seek protection from his country’s authorities, nor can he relocate within his country.
The applicant, it was submitted has no right to enter and to remain in any third country and therefore, s. 36(3) of the Act did not prevent him from being a person in respect of whom Australia had protection obligations. Accordingly, Australia had complementary protection obligations in respect of the applicant because there was a real risk that on his return to Eritrea he would be detained and arbitrarily deprived of his life, or subjected to torture, or to cruel, inhumane or degrading treatment or punishment.
The applicant’s solicitor and registered migration agent also provided considerable amounts of current information about the applicant’s country which the Tribunal read and considered in preparation of its decision and found it relevant and of assistance to the Tribunal’s understanding of the applicant’s concerns in request that asylum be provided to him by Australia.
The applicant’s reasons for seeking protection
The applicant was born in Asmara Zoba Maekel Eritrea, in [year]. He is a Christian, and of Tigrinya ethnic background.
The applicant has family currently living in Eritrea which consists of his father and mother and [siblings] of varying ages – the applicant being the eldest child of the family. Some of his siblings are still attending school and one brother is currently doing his national service.
While in Eritrea, the applicant completed all levels of his primary and secondary education within the state-run education system and qualified for further education at [a] University in 2002 for a degree in [an area] [which] he completed in [year].
In 2006, the applicant undertook and completed his compulsory one-year work within the [government].
In [year], he graduated and was assigned by the Eritrean state authorities to work as [Occupation 1] within [a certain unit].
All levels of education, the Tribunal was told was freely provided to Eritreans but that free education although provided free, each citizen [like the applicant] is compelled once they have completed their education to work for a period of time for the state. The applicant stated that he completed three and half years of compulsory work for the Eritrean government as [Occupation 1].
In this period, the applicant determined for himself to seek the means to further his education at a higher level. He also realised that the government employment was not a guarantee for the future. Indeed, the government sector was getting ‘worse’ and lacked any potential for improvement.
Following the applicant’s introduction to the Eritrean state apparatus he was recommended by his superiors in July 2011 to attend indoctrination classes carried out by the state within the ‘Cadre Education Program.
The applicant attended these indoctrination classes but found it difficult to reconcile his own political ideals and beliefs with what was being said to him. The applicant told the Tribunal that he did not want to be an ‘instrument’ of the ‘Eritrean regime’ used to ‘supress the people’.
The applicant stated that indefinite service to the state authorities was not his idea of a bright future for himself. He wished to have no part in directly or indirectly being used by the Eritrean regime to ‘supress’ people into believing and doing whatever was the wish and aim of the regime.
The applicant stated that he did not agree with any form of state-inspired indoctrination for people and he did not want to remain in a country that did this to its people.
The applicant discussed these views with his parents. The applicant stated that his parents sympathised with his concerns and told him to ‘try to get out of Eritrea’ and by doing so ‘save himself’ from being part of a political and one-party government-dominated system which the applicant did not want to work in and did not accept or believe in.
The applicant stated after receiving his family’s blessings for his decision to leave Eritrea, he contacted a relative who organised through people smugglers a transport for him at a given time and place out of Eritrea and into the Sudan.
The applicant stated that people smugglers were paid the sum of US$[amount] for his transport to the Sudan – money which was provided to his father by his uncle who was living in [another country]. The applicant left Eritrea [in] August 2011.
He remained in the Sudan until January 2012 and thereafter through the assistance and intervention of a close family relative living in [Country 1], the applicant received a work visa which enabled him to leave the Sudan and work in [Country 1] as [Occupation 1] for a friend of his relative who owned a company with various business branches throughout Africa. The applicant stated that he was responsible for [various tasks] and worked for the uncle friend’s company for a year and half before deciding to further his studies in Australia.
The Tribunal asked the applicant – how it was possible for him to organise and leave Eritrea on a valid Eritrean passport when generally, it was considered difficult to leave the country with proper travel documentation? The applicant explained to the Tribunal that he had obtained his Eritrean passport by bribery of border officials who for a considerable sum of money provided him with his passport. It was this passport (a copy which has been provided to Department and Tribunal) which enabled the applicant to receive his visa to [Country 1] and later his student visa for study in Australia. The Tribunal accepts the applicant’s explanation on how he obtained his Eritrean passport based on the country information the Tribunal has referenced – government officials in Eritrea are open to accepting bribes from individuals wishing to obtain documents required for travel within Eritrea and for overseas travel despite the regime’s stringent curtailment of the movement of its citizens.
While in [Country 1] the applicant stated he had no guarantee for a long-term stay and with the help of relatives with funds and from his family in Eritrea, he organised his Australian student visa.
The applicant stated that while in Australia he successfully completed a [degree]. His course was for one year – spread over two semesters. Having completed his studies the applicant told the Tribunal that he decided to apply for a Protection visa with work [rights].
The Tribunal was told that the applicant had spoken to his parents and family in Eritrea and had been told that the authorities had made enquiries about his whereabouts and had forced his father to pay a [amount]K Eritrean nakfa fine which was paid out of funds the applicant’s father had saved from the sparse earnings of the family’s small business – selling wood and other materials.
The applicant stated that after his father’s payment of the fine imposed for the applicant’s ‘dereliction of his duties’ to the Eritrean state, in not attending the two months program at state-run cadre school, his father and family have not been harassed or under any surveillance.
However, regardless of the fine having been paid, the applicant told the Tribunal that that was no guarantee to the applicant if in future, if he was to be returned to Eritrea he would not face arbitrary detention and further punishments as a retribution by the Eritrean state authorities for his refusal to do as the state required of him. In other words, the authorities would exact a heavy price (more than the fine the applicant’s father had paid) possibly even placing the applicant’s life in jeopardy. These were real concerns on the mind of the applicant and the Tribunal noted that similar concerns were stated in the submission submitted to the Tribunal by the applicant’s registered migration agent and lawyer.
The applicant told the Tribunal that he has never forgotten his country while here in Australia, and this ongoing concern for his country’s plight has seen the applicant involved in the social, cultural and political activities of his community. The Tribunal was told that since 2015, the applicant has participated at some events held by the Eritrean community in [Australia] highlighting that country’s political, economic and social problems. The applicant also attended a meeting held in honour of an Eritrean opposition leader which visited Australia (in 2015) and a protest rally held [in] November 2017.
The applicant has followed carefully various comments and information posted on social media by Eritrean political exiles and expats but has been very circumspect in what comments and discussions he chooses to make or participate in discussing events in his country because he has family living there and he fears retribution and reprisals being carried on them because of his politics if he expresses an opinion. In particular, the applicant remains constantly concerned that his family would be targeted as it is well known within the Eritrean community in Australia (which is small in number) that members attending public activities and taking a prominent role and making comments about the injustice committed by the regime are monitored and recorded by Eritrean government officials.
Does the applicant have contact with his family members in Eritrea?

The applicant has contact with his family members in Eritrea each month and has been told that the situation in Eritrea was deteriorating. He was told that one of his brothers had fled the country and is in Ethiopia seeking asylum opportunities in Western [countries] and another is also trying to leave Ethiopia. The applicant’s father’s health is failing due to a chronic [health] condition. His mother’s health is fine but she misses the applicant.
What are the concerns in the foreseeable future of the applicant if he was to return to Eritrea?
The applicant stated that the political situation in Eritrea was difficult and was deteriorating on a daily basis and many Eritreans are exploring ways and means to leave for a better life in Western countries. His own experience is only one example.
His prospects if he was to return to Eritrea to live a better and free life (as he wants to live) would not happen because of the oppressive nature of the Eritrean state apparatus and authoritarian regime.
Upon return to Eritrea if the applicant was to return, he would face immediate detention and indefinite servitude to the state and his personal freedom would be severely curtailed if not totally dispensed with as retribution for his neglect of his duties as a participant in the National Service and in the Education Program for state cadres. The applicant stated that for his neglect of the Cadre Education Program he would be considered a ‘traitor’ to the Eritrean state and regime and this would invite its own dire consequences for the applicant.
The applicant was of the opinion that even if he or his family managed to make payment of any to the authorities of any state-imposed fines or taxes for his absence overseas - illegally that payment would provide a guarantee that the applicant would not face arbitrary arrest and indefinite imprisonment. Imprisonment could not be avoided, the Tribunal was told because the applicant object to becoming a prospective member of the Eritrean state’s cadre apparatus and had left the country – these actions invited (according to the applicant) the use of ‘torture’ on him - a form of state retribution which would result in death. This remained a major fear the applicant held.
Other sources of information
A few examples of independent reports show a summary situation in Eritrea.
The United Kingdom’s Home Office has given an Operational Guidance Note on Eritrea,[4] which refers to a range of information, including reports by offices of the United States (“US”), the United Nations High Commissioner for Refugees(“UNHCR”), and Human rights Watch (“HRW”), and which relevantly states in part:
2.2.4The Bertelsmann Stiftung transformation Index Eritrea County Report 2012, states that “The ruling PFDJ and the government forma monolithic power apparatus. There is no separation of powers and not even a convening parliament. The legislative, executive and judicial branches are controlled by the president, who rules by decree. He heads the cabinet of ministers, who have very little autonomy as to setting up policies in their respective portfolios.” (The Bertelsmann Stiftung Transformation Index Eritrea Country Report 2012 published 2013:3 Rule of Law: Separation of Powers). This is supported by the UN Special Rapporteur for Eritrea who states “The basic tenets of the rule of law are not respected in Eritrea owing to a centralised system of government where decision-making powers are concentrated in the hands of the President and his close collaborators. The failure to implement the Constitution adopted in 1997 is another reason for the breakdown of the rule of law., although there are other contradictory factors, such as arbitrariness, lack of transparency and accountability, all of which have a negative impact on the enjoyment of human rights and fundamental freedoms. Systematic human rights violations stem from the absence of due process and a lack of credible institutions through which affected individuals can take their complaints to be examined and have their rights upheld” (UN Human Rights Council: The Report of the UN Special Rapporteur on the situation in Eritrea, Sheila B. Keetharuth, dated 28 May 2013: paragraphs [35] and [38]).
….
2.28 The UN Special Rapporteur notes “The number of people arrested and detained without charge or due process amounts to thousands. National service evaders or escapees, and those suspected of wanting to flee or caught during flight swell detention figures and may reach tens of thousands. Individuals arrested arbitrarily are subjected to physical and psychological torture, cruel, inhuman or degrading treatment”.[5]
….
2.3.4…..UNHCR concluded in its Eligibility Guidelines for assessing Eritrean asylum claims that “Given the omnipresence of the military, a well-established network of Government informants and the countrywide control and reach over the population exercised by the State agents, including through round-ups, house searches and setting roadblocks, an internal flight or relocation alternative to another part of the country cannot be considered as available where the risk of persecution emanates from the State and its agents.”[6] Human Rights watch describes Eritrea as “among the most closed countries in the world.”[7]
(Emphasis added.)
[4] United Kingdom, Home Office, Operational Guidance Note – Eritrea, accessed 16 January 2015.
[5] UN Human Rights Council, The Report of the UN Special Rapporteur on the Situation of human rights in Eritrea, Sheila B. Keetharuth, dated 28 May 2013 see paragraph [51] at page 11.
[6] UNHCR Eligibility guidelines for assessing the International protection needs of asylum seekers from Eritrea, 20/04/2011, Section III., B. Internal flight or relocation.
[7] Human Rights Watch: World Report 2014: Events of 2013: 21 January 2014: Eritrea.
The United States State Department’s Country Reports on Human Rights Practices for 2013[8] relevantly states in part concerning Eritrea:
[8] United States State Department’ Country Reports on Human Rights Practices for 2013, <accessed 15 January 2015>
EXECUTIVE SUMMARY
The government of the State of Eritrea is a highly centralized, authoritarian regime under the control of President Isaias Afwerki. The People’s Front for Democracy and Justice (PFDJ), headed by President Isaias, is the sole political party. There have been no elections since the country’s independence from Ethiopia in 1993. Authorities generally maintained effective control over most security forces. Security forces committed human rights abuses.
Incommunicado detention under life-threatening conditions, which sometimes resulted in death, continued. The government forced persons to participate in its national service program, often for periods of indefinite duration, and in its citizen militia. The government also severely restricted civil liberties, including freedom of speech, press, assembly, association, and religion.
Other abuses included killings; torture and other cruel treatment; arbitrary arrest; politically motivated disappearances; executive interference in the judiciary; detention of political prisoners and detainees; lack of due process and excessive pre-trial detention; infringement of privacy rights; restrictions on internet freedom; restrictions on academic freedom and cultural events; corruption and lack of transparency; and limits on freedom of movement and travel…
The government did not generally prosecute or punish officials who committed abuses, whether in the security services or elsewhere in the government. Impunity was the norm.
SECTION 1. RESPECT FOR THE INTEGRITY OF THE PERSON, INCLUDING FREEDOM FROM:
a. Arbitrary or Unlawful Deprivation of Life
The government committed arbitrary killings and subjected detainees to harsh and life-threatening prison conditions, which resulted in deaths.
….
Deaths resulted from the continued authorized use of lethal force against individuals resisting or attempting to flee military service, or attempting to leave the country clandestinely. In early March security forces killed two men trying to cross the border into Ethiopia.
….
b. Disappearance
An unknown number of persons disappeared during the year and were believed to be in government detention or to have died while in detention. The government did not regularly notify family members or respond to information requests regarding the status of detainees. Disappeared persons included those detained for political and religious beliefs, journalists, individuals suspected of evading national service and militia duties, and persons with no discernible charge.
…
The government continued to detain incommunicado local staff employed by foreign diplomatic missions. The government did not answer requests for information regarding their location or charges against them.
Roundups of those suspected of avoiding participation in the mandatory citizen militia established in 2012 reportedly occurred.
There were no reported developments in cases of disappeared persons from 2012.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The law and the unimplemented constitution prohibit torture, but the UN special rapporteur on human rights in Eritrea reported that “individuals arrested arbitrarily are subjected to physical and psychological torture, cruel, inhuman or degrading treatment.” Lack of transparency and access to information made it impossible to determine the numbers or circumstances of deaths due to torture or poor detention conditions.
Security forces tortured and beat army deserters, national service and militia evaders, persons attempting to flee the country without travel documents, and members of certain religious groups. Released and escaped detainees from previous years who detailed their experiences on diaspora websites and elsewhere described prison conditions that included exposure to extreme heat during confinement in crowded and unventilated metal shipping containers, or in crowded basements without ventilation or sanitation.
Prison and Detention Center Conditions
Prison conditions remained harsh and life threatening. The government did not permit independent monitoring by domestic or international observers.
Physical Conditions: No information was available on the approximate number of detainees or number of detention centres. Severe overcrowding was reportedly common. …
Refusal to perform military or militia service, failure to enlist, fraudulent evasion of military service, and desertion were punishable by lengthy imprisonment. Former detainees and other sources reported detention centre conditions for persons temporarily held for evading national service and militia duties were harsh, equivalent to conditions for national security detainees. Authorities placed political prisoners in solitary confinement more often than other detainees.
Data on the prevalence of death in prison and detention facilities were not available, although persons reportedly died from harsh conditions. One person released in 2012 after several weeks in detention reported the detention facility consisted of a shipping container without ventilation or provision for sanitation. The government did not provide adequate basic or emergency medical care in prisons or detention centres. Food was not adequate, while potable water was sometimes available only for purchase. There were reportedly numerous unofficial detention centres, some located in military camps. Use of psychological torture was common according to former inmates. Some former prisoners reported that authorities appeared to conduct interrogations and beatings in such a way that those not being interrogated or beaten would hear and fear they might suffer the same punishment.
Administration: Because recordkeeping procedures were not transparent, verifying that authorities released prisoners convicted of crimes after serving maximum sentences for charged offenses was impossible. …
Prisoners and detainees did not have consistent access to visitors. Authorities generally did not permit family visits with persons detained, arrested, or convicted for reasons of national security or for evading national service, whereas they permitted visits with those held for other crimes, although irregularly. … Prisoners and detainees could not submit complaints to judicial authorities, and authorities did not adequately investigate or monitor prison or detention centre conditions.
Independent Monitoring: During the year the government did not permit international bodies, including the International Committee of the Red Cross (ICRC), to monitor prison conditions, nor was the ICRC given access to Ethiopian or Djiboutian prisoners of war allegedly detained in the country.
d. Arbitrary Arrest or Detention
The law and unimplemented constitution prohibit arbitrary arrest and detention, but arbitrary arrest and detention remained widespread.
In previous years foreign nationals, particularly those with dual citizenship or those identifiably of Eritrean descent, were detained after arriving in Asmara, sometimes at length and usually without charge. There were no reports of such detentions during the year.
Authorities also arrested persons suspected of loyalty to Ethiopia.
Role of the Police and Security Apparatus
Police were responsible for maintaining internal security, and the army was responsible for external security, but the government sometimes used the armed forces, the reserves, demobilized soldiers, or the newly mustered civilian militia to meet domestic and external security requirements. Agents of the National Security Office, which reports to the Office of the President, were responsible for detaining persons suspected of threatening national security. The armed forces have authority to arrest and detain civilians. Police generally did not have a role in cases involving national security.
Impunity for abuse was the norm. There were no known internal or external mechanisms to investigate security force abuse or government actions to reform the security forces.
Arrest Procedures and Treatment of Detainees
The law stipulates that unless there is a “crime in progress” police must conduct an investigation and obtain a warrant prior to making an arrest, but this seldom occurred. In cases involving national security, the process may be waived. Detainees must be brought before a judge within 48 hours of arrest and may not be held more than 28 days without being charged with a crime. Suspects generally were detained for longer periods without being brought before a judge, charged with a crime, or in some cases being told the reason for their detention. Authorities also sometimes changed charges during detention. The government promoted the assumption that detainees without charge were being held due to national security concerns.
The law provides for a bail system, but bail was arbitrary, not always set, and sometimes reportedly involved paying bribes.
Detainees in prisons, including those held on national security grounds and those considered indigent, often did not have access to counsel. Incommunicado detention was widespread. Detainees in police stations not held on national security grounds sometimes received family visits. For those detained on national security or religious grounds, authorities usually permitted family members to deliver food and clothing but not to visit the prisoners.
Arbitrary Arrest: Arbitrary arrest occurred frequently. Security force personnel detained individuals for activities that included suspicion of intent to evade national and militia service, criticizing the government, practicing certain religious beliefs, and unspecified national security threats.
….
Authorities sometimes arrested persons whose papers were not in order and detained them until they were able to provide evidence of their militia status or demobilization from national service. …
There were occasional reports, particularly from rural areas, that security forces detained and arrested the parents or spouses of individuals who evaded national service or fled the country.
…
Pre-trial Detention: The government held numerous detainees without charge or due process. The percentage of the population of prisons and detention centres in pre-trial detention was not available.
e. Denial of Fair Public Trial
The law and unimplemented constitution provide for an independent judiciary, but executive control of the judiciary continued, and the judiciary was not independent or impartial. Judicial corruption remained a problem. …
Trial Procedures
The law and unimplemented constitution provide for the presumption of innocence, for defendants to be informed promptly and in detail of charges, and for fair public trial by a court of law, but many detained persons were not brought to trial. …
Political Prisoners and Detainees
An international nongovernmental organization (NGO) reported that the government held at least ten thousand suspected political prisoners and prisoners of conscious, including opposition politicians, journalists, members of registered and unregistered religious groups, and persons suspected of not completing national service or evading militia practice. In addition the government detained and interrogated 900 to 1,200 individuals after military personnel briefly took over the Ministry of Information building on January 21. Authorities continued to detain at least 180 of these persons as of late in the year.
…
The government did not permit access to detainees by international humanitarian organizations. No new information was available regarding Eritrean diplomats and staff of foreign embassies and international organizations detained in previous years.
Civil Judicial Procedures and Remedies
There are no civil judicial procedures for individuals claiming human rights violations by the government.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The law and the unimplemented constitution prohibit arbitrary interference with privacy, family, home, or correspondence, but the government did not respect these rights.
…
The government monitored mail, e‑mail, text messages, and telephone calls without obtaining warrants, as the law requires. Government informers were widely believed to be present throughout the country. Many citizens believed the government monitored cell phones in particular, since permits are required to use SIM cards.
Membership in the PFDJ, the only legal political party, was not mandatory, but authorities pressured some categories of individuals, particularly those occupying government positions, to join the party. Authorities occasionally convoked citizens to attend political indoctrination meetings as part of mandatory participation in the militia irrespective of PFDJ membership. Authorities denied benefits such as ration coupons to those who did not attend. Some Eritreans in the diaspora claimed that convocations occurred at Eritrean embassies, with the names of those who did not attend reported to government officials, sometimes resulting in denial of benefits such as passport services.
Reportedly authorities occasionally visited refugee camps in Sudan and interrogated and seized “critical personnel” who had fled the country. In some cases they brought them back to Eritrea.
SECTION 2. RESPECT FOR CIVIL LIBERTIES, INCLUDING:SHARE
a. Freedom of Speech and Press
Although the law and unimplemented constitution provide for freedom of speech and press, the government severely restricted these rights.
Freedom of Speech: The government severely restricted the ability of individuals to criticize the government in public or in private.
Press Freedoms: The law bans private broadcast media and foreign ownership of the media and requires that documents be submitted to the government for approval prior to publication. The government controlled all existing media, including one newspaper, three radio stations, and a television station. …
b. Freedom of Peaceful Assembly and Association
Freedom of Assembly
The law and unimplemented constitution provide for freedom of assembly, but the government restricted this right. For some public gatherings, the government sporadically required those assembling to obtain permits. Gatherings of large groups of persons without prior approval, with the exception of events such as weddings, funerals, and religious observances, were subject to investigation unless the gatherings appeared to be social in nature or occurred in the context of meetings of government-affiliated organizations. Gatherings appearing to be political or religious, with the exception of those previously mentioned, were subject to government interference.
Freedom of Association
Although the law and unimplemented constitution provide for freedom of association, the government did not respect this right.
The government did not allow any political parties other than the PFDJ. It also prohibited the formation of associations except those with official sponsorship.
c. Freedom of Religion
See the Department of State’s International Religious Freedom Report at Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons
The law and unimplemented constitution provide for freedom of internal movement, foreign travel, emigration, and repatriation, but the government restricted all these rights. It often denied national service recruits passports and exit visas on grounds they had not completed their military duties.
…
In-country Movement: The government requires citizens to notify local authorities when they change residence. When traveling within the country, particularly in remote regions or near borders, authorities asked citizens to provide justification for travel at checkpoints, which were few in number except in remote regions. Police and security personnel checked the documentation of passers-by in Asmara and along major highways in the aftermath of the January 21 brief takeover of the Ministry of Information. Authorities did the same in October to eliminate possible sources of citizen expressions of discontent over the government’s response to the capsizing of a boat carrying migrants off the coast of Lampedusa, Italy.
Travel restrictions on noncitizens remained in effect. The government required all diplomats, humanitarian workers, UN staff, and foreign tourists to request permission from the government 10 days in advance to travel outside Asmara.
Foreign Travel: The government has the ability to restrict foreign travel, and requirements for obtaining passports and exit visas were inconsistent and non-transparent.
The government requires citizens and some foreign nationals to obtain exit visas to depart the country. Categories of persons most commonly denied exit visas included men under the age of 54, regardless of whether they had completed the military portion of national service, and women younger than 47. Some relaxation of exit visa requirements appeared to take place, including for medical purposes, allowing an unknown number of persons below the age cut-offs to leave the country. Those persons who reportedly had a better chance at obtaining exit permits included individuals who completed and whom authorities demobilized from national service, those exempt from national service, and those registered and participating in the citizen militia.
To prevent emigration, the government generally did not grant exit visas to entire families or both parents of children simultaneously. Some parents avoided seeking exit permits for children approaching the age of eligibility for national service due to concern that they would be denied permission to travel, although other adolescents were granted exit permits. Diaspora members who visited the country reported being required to pay a 2 percent tax on foreign earned income before being given exit visas.
Emigration and Repatriation: In general citizens had the right to return, but citizens residing abroad had to show proof that they paid the 2 percent tax on foreign earned income to be eligible for some government services, including passport renewals. Persons known to have broken laws abroad, contracted serious contagious diseases, or been declared ineligible for political asylum by other governments had their visas and visa requests to enter the country considered with greater scrutiny than others did.
Citizenship: The government considered persons of Eritrean descent to be citizens and did not recognize their possible citizenship in other nations, even if they were born outside the country.
The government did not grant consular access to detained dual citizens. In 1994 the government revoked citizenship of members of Jehovah’s Witnesses due to their refusal to take part in the referendum on independence or participate in the military portion of national service. Members of Jehovah’s Witnesses who did not perform military service were not able to obtain identification cards and thus were not eligible for government-sector jobs or for ration coupons to buy basic essentials at government-subsidized prices.
…
SECTION 3. RESPECT FOR POLITICAL RIGHTS: THE RIGHT OF CITIZENS TO CHANGE THEIR GOVERNMENT
The law and unimplemented constitution provide citizens the right to change their government peacefully, but citizens were not able to exercise this right.
Elections and Political Participation
Recent Elections: The government came to power in a 1993 popular referendum, in which voters chose to have an independent country managed by a transitional government. This government did not permit the formation of a democratic system. The government twice scheduled elections in accordance with the constitution but cancelled them without explanation. An official declaration in 2003 asserted that, “in accordance with the prevailing wish of the people, it is not the time to establish political parties, and discussion of the establishment has been postponed.” Government officials also stated that implementation of the constitution was not possible until the border demarcation with Ethiopia was final.
Political Parties: The country is a one-party state. Power rested with the PFDJ and its institutions. At times the government coerced persons to join the PFDJ.
…
SECTION 4. CORRUPTION AND LACK OF TRANSPARENCY IN GOVERNMENT
Although the law provides criminal penalties for corruption by officials, official corruption was a problem and occurred with impunity.
Corruption: Persons seeking executive or judicial services sometimes reported that they obtained services more easily after paying a “gift” or bribe through a system of patronage and cronyism. Petty corruption within the executive branch was based largely on family connections and used to facilitate access to social benefits. Some persons who benefited from preferential treatment due to perceived loyalty to the government subsequently were denied services such as housing when their political loyalties appeared to change. Judicial corruption was also a problem, and authorities generally did not prosecute acts such as property expropriation when military or security officials or those seen as being in favour with the government were responsible.
…
There were reports of police corruption. Police occasionally used their influence to assist friends and family in facilitating their release from prison. Police reportedly demanded bribes to release detainees.
Reports indicated corruption existed in the government’s issuance of identification and travel documents, including in the passport office. Individuals requesting exit visas or passports sometimes had to pay bribes.
There were no government agencies or effective mechanisms to address allegations of official abuse, and impunity was a problem.
…
SECTION 5. GOVERNMENTAL ATTITUDE REGARDING INTERNATIONAL AND NONGOVERNMENTAL INVESTIGATION OF ALLEGED VIOLATIONS OF HUMAN RIGHTS
The government closed all international NGO offices in previous years. Civil society organizations were few and, other than those with official affiliations, lacked capacity.
UN and Other International Bodies: The government continued to restrict UN operations in the country. By requiring UN organizations to obtain permission for travel outside the capital, the government effectively controlled their access to rural areas, complicating routine monitoring of projects. UN agencies present in the country operated extensively throughout rural areas during the year … The focus of UN efforts was partnership toward achieving Millennium Development Goals. The government did not generally cooperate with the Monitoring Group on Somalia and Eritrea or the special rapporteur on the situation of human rights in Eritrea, but it did meet with the monitoring group on three occasions during the year and with the special rapporteur once.
The government permitted the ICRC to operate, although it limited ICRC operations to repatriation, providing shelter to families displaced by the conflict with Ethiopia, and providing assistance to internally displaced persons. It did not permit the ICRC to visit prisons or detention centers.
SECTION 6. DISCRIMINATION, SOCIETAL ABUSES, AND TRAFFICKING IN PERSONS
…
Children
…
Child Soldiers: The law prohibits the recruitment of children under 18 into the armed forces. Younger children sometimes attended Sawa National Training and Education Center, and those who refused to attend with their cohort risked arrest. Students at Sawa were typically age 18 or older, although informal reports indicated some individuals there were as young as 16. Information was not available on whether persons who reached the last year of secondary school before they turned 18 were required to participate in military training at Sawa….
(Emphasis added.)

Amnesty International’s Annual Report 2013[9] states in part concerning Eritrea:
[9] Amnesty International’s Annual Report 2013, accessed 15 January 2015.
Eritrea
Head of State & Government: Isaias Afewerki
Background
Prisoners of conscience and political prisoners
Freedom of religion or belief
Torture and other ill-treatment
Military conscription
Refugees and asylum-seekers
Trafficking in human beings
National service conscription was compulsory and frequently extended indefinitely. Military training for children remained compulsory. Conscripts were used as forced labour. Thousands of prisoners of conscience and political prisoners continued to be arbitrarily detained in appalling conditions. Torture and other ill-treatment were common. No opposition parties, independent media or civil society organizations were permitted. Only four religions were sanctioned by the state; all others were banned and their followers arrested and detained. Eritreans continued to flee the country in large numbers.
BACKGROUND
The humanitarian situation in the country was reported to be serious and the economy remained stagnant. However, the mining sector continued to develop, with foreign governments and private companies interested in Eritrea’s significant deposits of gold, potash and copper, despite a risk of complicity in human rights violations through the use of forced labour at mining sites.
…
In July, the UN Human Rights Council appointed a Special Rapporteur on Eritrea, in response to “the continued widespread and systematic violations of human rights… by the Eritrean authorities.” The Eritrean government dismissed the appointment as politically motivated.
In July, the UN Monitoring Group on Somalia and Eritrea reported that Eritrea’s support for al-Shabab in Somalia had declined, but that Eritrea continued to harbor armed opposition groups from neighboring countries, especially Ethiopia. The report also found that Eritrean officials were involved in trafficking of weapons and human beings.
Around the middle of the year, reports indicated that the government was distributing guns to the civilian population, for unknown reasons.
PRISONERS OF CONSCIENCE AND POLITICAL PRISONERS
Thousands of prisoners of conscience and political prisoners remained in arbitrary detention in appalling conditions. They included politicians, journalists and religious practitioners. They also included people caught trying to evade national service, flee the country or move around the country without a permit. Some prisoners of conscience had been detained without charge for over a decade.
High profile prisoners were not permitted visitors and in most cases their families did not know their location or health status. The government continued to refuse to confirm or deny reports that a number of prisoners had died in detention.
….
TORTURE AND OTHER ILL-TREATMENT
Torture and other ill-treatment of prisoners were widespread. Prisoners were beaten, tied in painful positions and left in extreme weather conditions, and held in solitary confinement for long periods. Conditions in detention amounted to cruel, inhuman or degrading treatment. Many detainees were held in metal shipping containers or underground cells, often in desert locations, where they were exposed to extremes of heat and cold. Detainees received inadequate food and water. They were frequently denied – or provided with only inadequate – medical care.
…
A number of deaths in custody were reported.
…
MILITARY CONSCRIPTION
National service remained compulsory for all adult men and women. All schoolchildren were required to complete their final year of secondary education at Sawa military training camp, a policy which affected children as young as 15. At Sawa, children suffered poor conditions and harsh punishments for infractions.
The initial national service period of 18 months was frequently extended indefinitely, on minimal salaries that were inadequate to meet families’ essential needs. Conscripts continued to be used widely as forced labour in state projects, including agricultural production, or in private companies owned by military or ruling party elites. They faced harsh penalties for evasion, including arbitrary detention and ill-treatment.
The Australian Department of Foreign Affairs and Trade (“DFAT”) notes that Australia maintains sanctions against the government of Eritrea:[10]
Australia fully implements the United Nations Security Council (UNSC) sanctions regime in relation to Eritrea.
The UNSC adopted resolution 1907 (2009) on 23 December 2009 imposing the sanctions regime in response to the ongoing border dispute between Djibouti and Eritrea, and Eritrea’s support to armed groups destabilising and undermining peace and reconciliation in Somalia, which the UNSC determined constituted a threat to international peace and security. The sanctions regime has been amended and renewed by several subsequent UNSC resolutions.
Any Australian business involved in the mining sector in Eritrea should exercise due diligence to ensure funds derived from their involvement are not contributing to breaches by Eritrea of the arms embargo in relation to Somalia.
The page summarises the current sanctions measures imposed by the UNSC and implemented by Australia in relation to Eritrea.
[10] At accessed 16 January 2015.
DFAT’s current travel advice for Eritrea is, for Eritrea overall, “Reconsider your need to travel”, and for border areas “do not travel due to ongoing instability between Eritrea and the neighbouring countries of Ethiopia, Sudan, and Djibouti.”[11]
[11] DFAT, travel advice for Eritrea, accessed 3 April 2018
DFAT makes the following observations concerning political opinion and national service conscripts:[12]
[12] Department of Foreign Affairs and Trade Country Information Report – Eritrea 8 February 2017 pp.13 -14, 20, 22, 26, 28 and 29
3.15 The government requires all physically- and mentally-capable men and women between the ages of 18-70 to perform a full-time national service obligation, which may include a military, development or civil service component. Eritreans are allocated to their national service role based on examination results rather than by choice. All Eritreans are required to undergo some military training, regardless of their national service role. DFAT understands that those serving as priests or imams in recognised religions may be exempt from national service obligations.
3.16 A 1995 Proclamation on National Service required the conscription of all 18-year old Eritreans, (complementing previous laws); while (as noted in ‘Education’) since 2002 both boys and girls completing their 12th and final year of school have been required to do so at the residential Sawa national military training centre, which includes six months of military training. Conscripts who pass the final examination at Sawa are permitted to continue their education while remaining formally in national service, while those who fail are required to serve in either the military or the civil service for at least 12 months.
3.17 Men are generally unable to obtain an exemption from national service; however, pregnant women and mothers are reportedly not required to serve. Article 119 of the 2015 Penal Code (Interference with Military Service) provides for terms of imprisonment of one to three years for anyone evading or attempting to evade compulsory military service, or for assisting another to do so. Should the act take place during a time of emergency, general mobilisation or war, the term of imprisonment is between seven to ten years. The UN Commission of Inquiry reported in 2015 that authorities had regularly conducted mass and indiscriminate round-ups to seize draft evaders and deserters, which had often involved excessive use of force, occasionally leading to death, and the forced entrance into and search of private homes. The US State Department’s 2015 Human Rights Report corroborated this allegation.
3.18 Conditions for national service conscripts vary considerably. While those involved in civil service and development activities face conditions and treatment comparable with the remainder of the population, it has been widely reported by international human rights organisations that conditions and treatment during military training and service are very harsh. The UN Commission of Inquiry reported in 2015 (corroborated by the US State Department) that conscripts were systematically subjected to intentional punishment and ill-treatment aimed at inflicting severe pain, which in many cases constituted torture.
3.19 It has been widely reported that many conscripts have been compelled to serve indefinitely. The UN Commission of Inquiry reported in 2015 that it had interviewed individuals who had served in the army for 17 years before deciding to flee Eritrea. Conscripts have also had limited and arbitrarily granted leave allowances which have in many cases severely disrupted their family lives. Conscripts have also reportedly been paid salaries insufficient to cover their families’ basic needs. The government announced in early 2016 that it would considerably increase salaries for those on national service. DFAT understands that this change has been implemented, but its impact has been minimal due to withdrawal restrictions on personal bank accounts.
3.20 In its response to recommendations made in the Universal Periodic Review’s Working Group in August 2014, Eritrea rejected calls from a large number of countries to take measures to either abolish or modify its national service programs, end the indefinite nature of the service, end compulsory military training, and establish provisions for conscientious objections to military service. The Minister for Information confirmed in February 2016 that there were no plans to limit military service programs, citing the ongoing threat posed by Ethiopia.
.....
3.22 DFAT assesses that almost all Eritreans are compelled to undergo some form of national service, including military service. While conditions for national service conscripts vary considerably, those whose service is primarily military-focused are most likely to be subjected to harsh conditions and treatment, which may include physical punishment. DFAT assesses that the lack of choice by which conscripts are allocated to national service fields, the compulsion to perform military service and lack of access to alternative forms of service for conscientious objectors, the possibility of indefinite service, the limited and arbitrarily granted leave allowances, and insufficient salaries, all represent a form of discrimination, and are a major contributing factor to the large migration outflows from Eritrea.
Enforced and Involuntary Disappearances
…..
4.4The UN Commission of Inquiry reported in 2015 that scores of people had been subjected to enforced disappearance since independence in 1991, for known and unknown reasons. The report found that information on the whereabouts of and/or charges against those detained was rarely provided officially. Detainees were usually not brought before a court and thus placed outside the protection of the law. Prison authorities generally informed relatives enquiring after detainees that they had no information on the person arrested, and warned them to cease their enquiries or risk facing a similar fate. In certain cases, relatives may subsequently receive unofficial information from released inmates or from bribed guards, but in most cases they were prevented from visiting their detained relatives. The UN Commission of Inquiry report concluded that enforced disappearance was a widespread and systematically employed practice in Eritrea.
Torture
4.12 The UN Commission of Inquiry reported in June 2015 that Eritrean officials had used a variety of forms of ill-treatment intended to inflict severe physical and psychological pain during interrogations or as a means of punishing detainees. These included extreme forms of restraint, beatings or rape. The purpose of these acts was to extract confessions and information, and to punish, intimidate and coerce detainees and conscripts. The UN Commission of Inquiry concluded that there was a deliberate policy to inflict torture in a routine manner during investigations and interrogations, as well as during national service, and perpetrators of torture enjoyed general impunity. In its preliminary response to the UN Commission of Inquiry report, the Eritrean government denied the allegations, noted the legal protections against torture, and stated that it was working on awareness programs and on upgrading the capacity and professionalism of its security personnel. Amnesty International, Freedom House and Human Rights Watch have also reported that torture was commonplace in Eritrea, and that many of the methods used caused long-lasting psychological and physical damage to the victims, or resulted in their death.
4.13DFAT assesses that officials in Eritrea commonly use a variety of forms of ill-treatment of detainees during interrogations, or as a form of punishment, which may amount to torture. Groups at a high risk of tortured may include political prisoners, practitioners of unauthorised religions, and deserters from national service. DFAT further assesses that those committing the torture are likely to enjoy general impunity.
Treatment of Returnees
Exit and Entry Procedures
5.21 Proclamation 24 of 1992 regulates the issuing of travel documents, exit and entry procedures from Eritrea, and the control of residence permits for foreigners residing in Eritrea. A valid passport, exit visa and an international health certificate are required in order to leave Eritrea legally. Legal departure points from Eritrea are restricted to one of the allocated border control points, which include Asmara airport, Massawa sea port and several border crossings into Sudan (as noted in ‘Security Situation’, as of the publication date, all border crossing points with Sudan were closed). The Department of Immigration and Nationality issues exit visas. Branch offices of the Department can issue exit visas without approval from the national office.
5.22 The fulfilment of national service (or legal exemption from it) is a precondition for the issuance of an exit visa. Applicants usually have to submit an identity card, a referral letter from the local administration, a proof of the reason for the trip, a completed application form, a supporting letter from an employer, and either proof of completion of national service or proof of exemption on medical grounds from national service. To obtain an exit visa on medical grounds, medical documentation confirming the need for medical treatment abroad and issued by a committee of doctors must also be submitted.
5.23 EASO reported in May 2015 that, in practice, the conditions for the issuance of exit visas were unclear, and subject to unannounced changes and to arbitrary decisions by authorities. The US State Department’s 2015 Human Rights Report stated that categories of persons most commonly denied exit visas included men under the age of 54, regardless of whether they had completed the military portion of national service, and women younger than 30, unless they had children.
5.24 Proclamation 24 of 1992 states that violations of the exit rules or attempts to cross the border illegally (or to help others to do so) are punishable by prison sentences of up to five years and/or fines of up to the equivalent of AUD865. EASO reported in May 2015 that punishment for those caught attempting to leave the country illegally was generally imposed on an arbitrary and extrajudicial basis, and may include detained without charge for an unspecified period of time, being fined, being recruited (or returned) into a military unit, or not being punished at all.
Conditions for Returnees
5.27 DFAT observes that international observers generally agree that those who have left Eritrea without having completed national service will be required to regularise their relationship with Eritrean authorities through paying the 2 per cent RRT and signing a letter of repentance before being permitted to return. However, it is uncertain what punishment, if any, these people may face on return. EASO reported in May 2015 that punishment was imposed arbitrarily on an extra-judicial basis, and may range from reassignment to additional duties to long periods of detention, to no punishment at all.
5.30 DFAT assesses that the act of leaving Eritrea illegally is in itself not likely to put a returnee at risk of serious harm. The sheer numbers of diaspora members returning to visit Eritrea, including many likely to have left illegally and/or been granted asylum abroad, demonstrates a general confidence among this group that they will be not subjected to ill-treatment while in Eritrea. DFAT assesses that those without having completed national service may face a risk of punishment on return, which may include imprisonment or being re-assigned to duty.
FINDINGS AND REASONS
Credibility
The Tribunal has had the opportunity to test the credibility of the applicant at a hearing. His evidence was detailed, responsive to the Tribunal’s probative questioning, intelligent, and consistent with his other evidence and with what is known of his country, Eritrea.
The Tribunal finds by reference to the material available about Eritrea, and its culture of official corruption, that any doubts surrounding the applicant’s initial fleeing from Eritrea on legitimately obtained travel documents are consistent with the applicant having paid for his passport and exist visa, including the payment of whatever additional money may have been needed for an official to grant these to an individual who wished not to only travel abroad but not wanting to play any part within the state bureaucracy he had been chosen to participate in following the completion of his university studies.
The Tribunal finds and accepts the recommendations made on behalf of the applicant by Eritrean Australians [in] their letter of support dated [in] February 2014 and in particular their concerns that the applicant was “a highly talented you Eritrean who will face imprisonment or even death if he returns to Eritrea”[13] due to the applicant having worked for the Eritrean government.
[13] Department of Immigration and Border Protection [File] Folio [64].
The Tribunal attaches little weight to the conclusions of the delegate in his decision where he concludes that the applicant faced no persecution for having evaded or not completed his national service as required by the Eritrean state because his breach involved a law of general application. The Tribunal attaches weight rather to the applicant’s oral evidence and to its consistency internally and with other information about the situation in Eritrea.
The Tribunal finds, by reference to the applicant’s evidence and to its consistency internally and with other information about the situation in Eritrea, that the applicant is a truthful witness and is substantially reliable as a witness of the things known to him directly.
Assessment of the Applicant’s claims for protection
The Tribunal makes the following observations and findings by reference to all the information available to it concerning the situation in Eritrea, including the reports and sources cited above, as well as the applicant’s evidence.
a.The situation in Eritrea
The Tribunal finds, by reference to various independent sources of information, including those cited above, that Eritrea is a state governed in dictatorial and oppressive manner by a single party government. Opposition is prohibited, and the entire country is a disastrous and oppressive situation for anyone opposed to the single party government, or suspected of opposition, including opposition to the compulsory regime of national service which, in reality, provides indefinite forced labour.

The government controls the police, the armed forces and security forces across the country. Internal relocation is restricted, monitored and controlled. The requirement of reporting to the authorities if one relocates makes it impossible to escape from the government by moving to another part of the country.
Permission to leave the country may be available to older persons (men over 54 years) or those seeking medical treatment abroad, but is refused to anyone who may be seeking to evade the compulsory military service which supplies a forced labour force for the government. In general, exit from the country is controlled and requires permission, although this can sometimes, erratically and inconsistently, be gained by bribery of corrupt government officials.
The sources referenced by the Tribunal present a state of affairs in Eritrea of almost total violation of human dignity, and an almost total absence of the rule of law, which has been replaced by corruption, arbitrary violence, indefinite detention, torture and harsh treatment of opponents and dissents, especially in prisons, where torture and savage ill treatment are the norm, and such abuses are not punished. Extremes of heat and cold, lack of sanitation are the norm in over crowed constructed out of shipping containers.
The Tribunal notes that there is a culture of impunity, and no chance of rescue from abuse of authority, much less for redress.
b. The applicant
The Tribunal accepts the evidence of the applicant and finds that his evidence of his history, outlined herein [see paragraphs 25 to 51] is truthful, and is substantially reliable. In particular, it finds, by reference to all the evidence, that:
§He completed all levels of his primary and secondary education with the Eritrean state-run education system and qualified for higher education which he completed in [year] at [a] University graduating for a degree in [an area].
§He undertook and completed his compulsory one-year work within the [government].
§He graduated in [year] and was assigned by the state to work as [Occupation 1] within the [government] sector.
§He was determined to find the means to further his education at a higher level and to add to his future prospects but was constrained in doing so by the dictates of the Eritrean ‘state’. The state was responsible for his current and future employment and he did not accept this. He did not want to become a tool of oppression of the Eritrean people for the PFDJ (People’s Front for Democracy and Justice).
§He was recommended by the state authorities in 2011, to attend the “Cadre Education Program” which made it compulsory for him to attend indoctrination classes which were taught under the strict supervision of the Eritrean state.
§He attended classes for a of short period of time and decided that there was no future for him to remain in Eritrea and become part of the state’s apparatus. He did not believe in and he objected to the state’s ideas and ideology.
§He (with the support of his family) decided to leave Eritrea for Sudan. His father through relatives overseas was provided with funds which allowed him to ‘buy’ his passport and ‘exit visa’ for the Sudan from a corrupt border official.
§His absence from Eritrea without official state permission caused his father to be fined [amount]K Eritrean nakfa which his father paid but he is not guaranteed safety if he was to return to Eritrea in the reasonably foreseeable future. He would be immediately detained by the authorities and possibly tortured because they would consider him a deserter and dissident.
§He left Eritrea for Sudan [in] August 2011.
§He remained in the Sudan until January 2012 and with the help of a relative in [Country 1] organised for a work visa to [Country 1]. While in [Country 1] he worked for a year [working] for a group of companies which were owned by a friend of his uncle. While in [Country 1], he prepared for and was granted a student visa and left for studies in Australia in 2013.
§He completed a [degree] and became a member of [a professional association].
§While he has been here in Australia, he has participated at some events held by the Eritrean community [highlighting] that country’s political, economic and social problems. He also attended meetings held in honour of an Eritrean opposition leader in 2015 and also participated at a protest rally held [in] November 2017.
§The applicant is afraid that if he returns to Eritrea he will be arrested and tortured, and fears that this time he will be killed as retribution for having refused to participate as he designated to do so in regime’s Cadre Development Program.
c. State Protection
The Tribunal finds, by reference to the evidence before it, including the many reports of the culture of violence used by the government of Eritrea over many years, and the other material mentioned above, that the government and authorities of the applicant’s country of nationality are not able and willing to provide the level of protection which its citizens are entitled to expect according to international standards. (See Minister for Immigration and Multicultural Affairs v Respondents S152/2003[2004] HCA 18; (2004) 222 CLR 1 at [27]- [29].) They are indeed frequently agents of persecution of members, supporters and families of the opposition to the ruling party.
The Tribunal concludes from these circumstances that the applicant’s unwillingness to rely on the protection from the authorities of his country of nationality is therefore justified for the purposes of Article 1A(2) of the Convention.
d. Whether the applicant has a real chance of persecution if he returns to his country of nationality?
Whether a real chance of persecution for political opinion
The Tribunal finds, by reference to its findings above and to the applicant’s evidence that the applicant is committed to opposing any compulsory regimentation and political indoctrination of persons by the Eritrean regime and is more generally committed to opposition of the government, shown by his refusal to participate in the regime’s cadre development program and leaving Eritrea. He has not relented in his opposition even while in Australia. It finds further, that the payment of considerable fine by his father to the government imposed on the applicant in absentia because of the applicant’s desertion provides (based on country information) no guarantee he would not be a person definitely wanted by the government.
The Tribunal finds by reference to all the material before it, including the reports mentioned above, that the government is notorious for its power and determination to arrest and punish all opponents, and that therefore there is a real chance – indeed almost a certainty – that the applicant will again be arrested on arrival in Eritrea, or (if he is fortunate enough to elude arrest at the airport, or port of entry) if he returns to his former home area.
Apart from his past actual or suspected present or future political opposition to the government, and even if for no other reason, by returning to Eritrea after an absence for a significant period of time, the applicant will attract attention. There would be immediate consultation by the authorities of his past record. It would be difficult to for him once in Eritrea to seek the assistance of any connections so powerful as to give him the ability to flee, or defend himself or obtain immunity from harm. His past actions would weigh him down heavily in the eyes of the Eritrean state.
The Tribunal therefore finds that the applicant’s return to Eritrea, both alone and in combination with the other factors mentioned above (the applicant’s past work as a member of the state apparatus and his involvement in the cadre development program and his subsequent bribe of officials and flight from his country and his involvement with dissent groups while in Australia), means a real chance of him coming under suspicion and suffering severe punishment as opposed to the government, including interrogation under further torture.
The Tribunal therefore finds that if the applicant returns to Eritrea, then either immediately on return at the point of entry, or if he returns to his home area, he has a real chance of suffering serious harm amounting to persecution for reason of his political opinion of opposition to the government and its policy of forced labour under the guise of national service.
e. Could the applicant reasonably relocate and live safely in another part of his country?
Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable chance of the occurrence of the feared persecution. The principles discussed by the court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, per Black CJ at 440-1, require the Tribunal to determine whether he or she can, reasonably in all the circumstances, live safely and free from a chance of such harm by resettling and living in another part of his country.
In MZYLH v Minister for Immigration & Anor [2011] FMCA 888 (17 November 2011),[14] the court said at [137]-[138]:
“137.The Tribunal is required to consider the practical realities facing a person in determining whether it is reasonable to expect them to relocate. Those practical realities are not limited to matters related to persecution for a Convention reason:
A well-founded fear of persecution for a Convention reason having been shown, a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable.
138.The issue is not whether the Applicant might be denied treatment for his mental illness for a Convention reason but whether he could relocate within Pakistan and maintain himself given the state of his health. As Branson J in NAIZ, the approach set down in Randhawa requires the Tribunal to consider the practical realities facing the Applicant to consider how, in a practical sense, he could reasonably be expected to relocate.”
[14] In that case there was evidence that the applicant was suffering from severe depression and severe post-traumatic stress disorder.
Any consideration of the re-settlement of the applicant is therefore concerned with his particular situation.
Relocation not safe
The Tribunal finds by reference to the material before it concerning the situation in Eritrea that there is no safety anywhere in the country for a person sought by the government, and no prospect of internal relocation.[15]
[15] See in particular the UK Operational Guidance Note cited above, at 2.3.4 and the UNHCR Eligibility Guidelines there quoted.
The Tribunal finds that the authorities are powerful throughout the country, but the applicant has no contacts, powerful allies or ability to hide in Eritrea. His return after a considerable time abroad means there is a real chance he will immediately suffer adverse attention, with no opportunity to avoid harm. Even if this does not happen, his father having to pay a fine – for the applicant’s absentia means that there is already deep suspicion against him. If he attempts to relocate, the information about the authority of the government and the prospects of relocation in the reports mentioned above lead the Tribunal to find that he will come to the attention of the authorities wherever he may go in his country, and indeed travel to a different part of his country will also increase his profile with the government.
The Tribunal therefore finds, by reference to all the material before it, that it is not possible for the applicant to relocate to any part of his country with safety from persecution.
Relocation not reasonable
The Tribunal finds also, by reference to the applicant’s, lack of powerful friends, and the already targeting of his family by the authority demanding the payment of a fine for his absence, that it is not reasonable for the applicant to attempt to relocate anywhere in Eritrea.
Conclusion on relocation
The Tribunal therefore finds that it is not reasonable and possible for the applicant to relocate to a part of his country where he would not have a real chance of suffering persecution, and therefore that he has well-founded fear of persecution in relation to his country of nationality as a whole.
CONCLUSION
It follows from the findings above, and the Tribunal finds, that the applicant has well-founded fear of persecution for reason political opinion (opposition to the government). He is therefore a refugee within the meaning of Article 1A(2) of the Convention and a person in respect of whom Australia owes protection obligations. It therefore follows and the Tribunal finds that he meets the requirements of section 36(2)(a) for a protection visa.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act 1958, because the applicant is a non‑citizen in Australia in respect of whom the Tribunal is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
Peter Vlahos
Member

[2018] AATA 1737

22 May 2018

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