1509650 (Refugee)

[2017] AATA 540

1509650 (Refugee) [2017] AATA 540 (17 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1509650

COUNTRY OF REFERENCE:                  Ethiopia

MEMBER:Filip Gelev

DATE:17 March 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 17 March 2017 at 3:55pm

CATCHWORDS

Refugee – Protection visa – Ethiopia – Political opinion – Oromo – Opposed to ruling party – Anti-government protests and other activities – Publicly advocated for Oromo cause – Risk of harm on return

LEGISLATION
Migration Act 1958

, ss 36(2)(a), (aa), (b), (c), 65, 91R(1), 91R(1)(a), 91R(1)(b), 91R(1)(c), 91R(2), 91R(3).
, Schedule 2

Migration Regulations 1994

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] July 2015.

3.    The applicant appeared before the Tribunal on 17 March 2017 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness]. 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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a refugee. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Country of reference

1. 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).

2. 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

1. The applicant was born in Bale in Oromia region of Ethiopia on [date]. He is of Oromo ethnicity (Afaan Oromo) and he is a Christian.

2. In a statutory declaration [in] January 2014 lodged with the application for protection, the applicant said that he is married and has [a child]. At that time his wife was [number] months pregnant. At time of interview with the delegate [in] April 2015 he said that his [child] was born in [year] and [another] child was almost exactly [age].

3. He has [siblings]. At the time of interview with the delegate all of them were in Ethiopia. The applicant lived and studied in [country] from 2008 to 2012.

4. Primary school was taught in Amharic. The applicant struggled and many of the other students made fun of him. He resented the fact that classes were not taught in Afaan Oromo and that the Oromo students could not sign Oromo songs.

5. In [year] the applicant commenced his university studies in Addis Ababa. He participated in Oromo public meetings, in particular meetings arranged by the Macha Tulama Association and Gad Aband. These organisations were later banned by the governing TPLF – TPLF is the main party behind the EPRDF, the governing coalition in Ethiopia which has been in power since 1991 – and many of the leaders were arrested and forced to flee the country. He became aware of the treachery committed by the political elite and how the government was prepared to rely on force to punish political opponents, in particular Oromo intellectuals, businessmen and students.

6. In 2000 the Ethiopian authorities burned the natural forest in Bale, Oromia, to flush out members of the Oromo Liberation Front (OLF). Students who tried to stop the fires were later punished. The applicant had organised a student campaign and he was arrested in March and held in Robe for about a week. He was threatened and questioned about his involvement with the OLF.

7. After his release he campaigned for the release of the thousands of Oromo political prisoners. As a result, he was rearrested in December 2000. He was detained for about a week in [a] Prison, beaten, harassed and interrogated by members of the TPLF.

8. In 2001 the applicant became a member of [a] Bulletin at the university. One of the other people working on the bulletin was [name]. He was killed in a TPLF prison in 2013. Another colleague, [name], has sought exile in [country].

9. In 2001 he began working at [a] University, now known as [University 1] University. In his employment he realised that the government was involved even in matters such as asking the applicant to inflate the grades of a student who belonged to the ruling party; or dismissing the applicant’s complaint against a member of the TPLF who used derogatory language against the applicant.

10. In October 2003 the government decided to change the capital city of Oromia from Finfinnee to Adama. The applicant was at that time again a student at [a] University. The Macha Tulama Association organised a protest on 4 January 2004 against this government decision and the applicant participated. He was arrested and taken to [a] Police Station and subjected to torture.

11. In May 2006 the applicant returned to [University 1] to teach [course]. He was also employed by [a] Program as [a certain] specialist. He [duties deleted] for approximately [number] years. Due to his role he was harassed by the government and told to become an agent (spy) or quit his job at the College. He did not want to work as a spy and quit.

12. Between [years] he completed his [qualification] at [an institute] in [country] and in [month] 2011[1], the applicant travelled to Australia for a conference. He then back to [country] but on his return to Ethiopia a few months later he was stopped and interrogated by security personnel at the airport on suspicion of being involved with the Oromo community in Australia.

    [1] See at p. 2 of the delegate’s decision.

13. When the applicant settled back in Ethiopia he found it hard to get a good job or to get any promotions. He was heavily scrutinised and was scared to be politically active during this time, but he yearned to help his community.

14. The applicant faced difficulties getting permission from his university to travel to Australia, because the applicant was invited by an Oromo man, [name], at [a] University.

15. After arriving in Australia in October 2013, the applicant was informed that [an official] of [University 1], [who had originally refused to let the applicant travel to Australia], is alleging that the applicant is affiliated with the opposition party the Oromo Liberation Front.

16. In Australia the applicant has been: supporting [an] Association of [State], involved with [a] Network, attended Oromo community events at [City 1] and has been liaising with Oromo Groups in Australia to share his views with like-minded individuals.

17. The applicant provided to the Department evidence of his involvement with [a] Bulletin as a member of [a] Committee”, while [name] was a member of [another] committee.[2] The applicant also provided independent country information that a certain [name] died in prison.

    [2] The spelling of the name is [name].

18. In legal submissions, dated [in] April 2014, the applicant’s representatives referred to a Youtube news bulletin, at [link deleted], Error! Hyperlink reference not valid. which shows that the applicant participated in a pro-Oromo protest in [City 2]. The Tribunal has watched the video and accepts that the applicant was at that protest.

19. On the eve of the Tribunal hearing, the applicant provided a number of letters of support. The Tribunal has reproduced either the entire letters or large excerpts, because they are highly relevant:

    a.Letter dated [in] December 2016 from [Witness], human rights defender based in [City 1]:

    Dear Madam/Sir,

    I am human rights defender who had been engaged in the work mainly related to the advocacy and investigation of human rights abuses against the Oromo people in Ethiopia, Since 1992, I worked as [role] with [agency] and as a [role] with [agencies] and others. Besides this, I did presentations and authored articles on the ongoing human rights abuses against the Ororno people. I attended and presented on the international human rights forums and conferences at [a] Council in [City 3], Human rights protection at the national level in [city], Human Rights defenders summit in [City 4], Working group on Indigenous populations in [City 3], Expert seminar on Education and Indigenous peoples in [City 4], Working group on Indigenous populations & Minority Issues in [City 3].

    The Oromo people are the single largest national group constituting about 50% of the total 100 million people in Ethiopia. Despite their demography and ample resources, their political, economic, social and democratic rights were undermined by successive regimes for over a century. Since the current regime came to power in 1991, serious systematic repression and ^-pervasive human rights abuses against the Oromo people has been reported by international human rights organisations. Oromo intellectuals, students, teachers, journalists, aid agency workers, artists, human rights activists and peasant farmers were subjected to harsh human rights abuses of extrajudicial killings, torture, cruel and inhuman treatments, enforced disappearances and imprisonment without due process of law solely on the basis of their origin. In the last one-year alone, estimated to over 2000 Oromos from different walks of life were killed for staging peaceful demonstrations. The number of shot and injured from live bullets exceeds 1500. Estimated 50,000 were arbitrarily detained from all over Oromia, Torture and rape is a daily routine in the prison cells, Being an independent Ororno in Ethiopia is very sensitive and not tolerated by the Ethiopian government and is tantamount to big crime,

    As mentioned above, I am writing this letter of affidavit in support of [the applicant] whom I have known since 2000 as a student who participated in the Oromo protest and detained.

    I met [the applicant] in person here in Australia in 2013 and since then we both participated in different demonstrations and awareness event to inform the Australian government and public about the heinous crimes committed by the Ethiopian government against the Oromo People. Such demonstrations were carried out in front of the state and federal parliament houses in [City 1] and [City 2] (2014). The public awareness events at [a certain club], [event] are few to mention.

    We have initiated the project of developing a website to keep record of people killed by government security including lrreechaa massacre that occurred on October 02, 2016 in which estimated over 780 people were killed on a single day at the thanksgiving festival.

    [The applicant] is also among the groups who initiated a project about Afaan Oromo [media] translation in an effort to make Afaan Oromo the language of Technology. I also knew he was engaged with [a certain] foundation as a member and election committee.

    We usually spend time discussing about our people fate and what need to be done to help them. He is wholeheartedly concerned and stressed about the plight of his people. He has also been actively engaged in sharing news about Oromo protest on social media consistently. We had also participated on Oromo cultural events (Irreechaa and Oromia at [City 1]). Wherever there is the need to help out Oromo community [the applicant] is always there to provide any kind of support without any hesitation.

    Had [the applicant] not been able to leave the country of his origin, his life would have been under grave risk of persecution even including the possibility of extra-judicial killings and /or other serious violations of his basic right as it is currently happening in Oromia. Attached is an article on "Genocide in the making in Oromia".

    Therefore, I kindly request the Australian authorities to consider [the applicant]’s appeal positively and safe his life from repressive Ethiopian government.

    b.Undated letter from [Mr A], [role], based n [country]:

    I am writing this letter in support of [the applicant] who is a supporter of the struggle for liberation of Oromia.

    …

    [The applicant] who was among the active student supporter of OLF during his undergraduate study had organized Oromo students' movement against the repressive regime of TELE.

    He was among the Oromo students who took the initiative of creating awareness about the struggle of the Oromo people to other students. He and with other students were engaged in creating awareness to the people in remote areas of Oromia during their summer vacation.

    [The applicant] was also a member of few students who were engaged in preparation of graduation bulletin which was later banned by TPLF since it educates Oromo people about their struggle.

    [The applicant] together with other Oromo students of [a] University took an initiative to organize the Oromo, students and then travelled to Bale and Borena to put off the fire set on by TPLF deliberately to flush out the OLE` fighters in the area, He and other students were later detained with the suspicion of pro OLE supporters.

    He also participated in various protests including the decision to change the Capital city from Addis Ababa (Finfinnee) to Mama which also opposed by the Oromo people in general and OLE in particular,

    He was also attending the Ororno gathering Organized by [a] cultural event which advocated about the Oromo Liberation Front and independence °ramie,

    Ever since his undergraduate days he has been an active supporter of OLE and he has been engaged in advocating for Oromo cause, creating awareness and participated in Oromo protests.

    Based on his activities and involvement with the liberation of Oromo people from century old regression and marginalization, if [the applicant] is forced to return to Ethiopia, the TPLF regime definitely will execute him without due process of the law, the actions the TPLF regime has been taking against thousand Oromos who have been peacefully demanding their people's rights.

    Therefore, we kindly request the Australian government to provide him assistance in granting him asylum.

    c.Letter dated [in] February 2017 from [name], [role] of [a] Foundation:

    This letter is in support to [the applicant] who is an active member of [a] Foundation. [The Foundation] is a non-governmental, non-partisan and non-profit organization, incorporated in [country] and [City 1] Australia. It was founded in 2013 by a broad based collective of human rights advocates, civic society leaders, journalists and community members who are committed to the principles of democracy, human rights, freedom and justice. The [Foundation] provides an independent voice for the Oromo people and other voiceless populations of the Horn of Africa, including the Diaspora community from the region.

    Since Oromo Student protest erupted in April 2014 many students has been killed by government security agency and thousands imprisoned. The human right situation in Oromia deteriorated after 2 Oct 2016 Irreecha Massacre, Now Oromia is under command post

    Currently, Oromo [are] targeted more than ever. Under a political regime where expressions of cultural and political freedom are controlled by TPLF government, where the majority of the population are subject to persecution on a daily basis, been detained without charge or trial, get killed is a norm for Oromo activist, Therefore our organization fear [the applicant] is at serious risk of detention, torture or even worse if he returns to Oromia Ethiopia

    We are prepared to assist [the applicant] in anyway deemed necessary.

1. The Tribunal’s own research shows that [Witness] is a human rights activist as he claims. For example, he has posted [social media] videos [where] he is interviewed in English about the situation of the Oromo in Ethiopia. In the videos he advocates strongly for Oromo [independence].[3]

   [3] “[Information deleted].

2. At the hearing the Tribunal called [Witness] and took evidence from him over the telephone. He confirmed that he had written a letter in support of the applicant. He said that he started writing the letter in December 2016 but only finalised it last month. He confirmed the contents of the letter were true. He told the Tribunal that he had no doubt that the applicant will be detained, tortured and possibly killed if returned to Ethiopia.

3. The Tribunal’s own research also supports the applicant’s claim that [Mr A] is involved with the Oromo cause in [country].[4] At the hearing the applicant acknowledged that he has never been a formal member of the OLF but asked [Mr A] by email to write him a letter of support.

   [4] [Information deleted].

4. The applicant’s representative’s submissions listed [in] March 2017 list a number of events and activities the number has been involved in. The Tribunal discussed these, and other events, with the applicant at the hearing:

   a.A protest rally [in] December 2015.

   At the hearing the applicant said this occurred in [City 1] but it was not one protest rally as such. There was a visit by Ethiopian officials who wanted to lobby the diaspora and meet with Australian officials. The protests were in different places, following the officials wherever they went. For example, the Ethiopian officials had organised a meeting at [a] Town Hall and the protesters went there. The venue was moved to [another place] and the protesters made sure that alternative arrangement was cancelled as well. In the end the meeting did not take place.

   b.A political protest against various political figures in Ethiopia [in] June 2016

   The applicant could not remember exactly where this was but showed the Tribunal a colour photograph of himself at the protest. He said it was somewhere in [City 1] (a copy of the photograph appears at folio 89 of Tribunal file).

   c.An Oromo protest [in] August 2016

   He said that it was to support the protests that were ongoing in Ethiopia. It was in front of [a certain building]. The Tribunal was shown a photo of this rather small protest as well.

   d.Panel discussion on Oromo protests and current crisis at [a university] [in] February 2016 (a copy of a photograph from the event appears at folio 89 of Tribunal file)

   e.A fundraiser for [a] Network [in] March 2016

   The applicant said that it is a TV channel broadcasting from the [country]. At the hearing the applicant said that the [Network] has been banned by the Ethiopian government (after a state of emergency was declared). The fundraiser happened in [City 1]. Country information indicates that the [Network] was banned in 2016 and declared “terrorist media”.[5]

   f.A presentation entitled “[name]” by [Witness] [in] November 2016

   g.An [named] gathering [in] October 2016 at the [location] (a copy of two photographs of the applicant from that event appear at folio 88 of Tribunal file)

   [5] [Information deleted].

5. The applicant told the Tribunal that he has not been approached in Australia either to be threatened or in an attempt to recruit him as a government agent. He could not explain why.

6. The letter from [Witness] states that he, the applicant and another Oromo person living in [City 1] are developing [a certain] project. [Witness] explained in his oral evidence to the Tribunal that the government of Ethiopia claims that 55 Oromo people were killed by security forces in Irreecha on 2 October 2016. According to him, the actual number was over 600. There is also evidence that some time after the first massacre, the government buried about 100 more bodies in the same grave as those killed on 2 October and the total number of people killed was about 780. The applicant told the Tribunal that he is involved in [activity deleted]. He said the IT side of things takes time but also it is very hard to get information from Ethiopia about the victims.

7. The applicant spoke at the hearing about his political aspirations. He said that he wants autonomy, civil and cultural rights for the Oromo people.

Country Information

DFAT

1. The April 2016 DFAT Country Information Report – Ethiopia, includes the following:

   Oromos
   3.5 Oromos make up the largest single ethnic group in Ethiopia, at around 35 per cent of the population. …

   3.6 Despite being the largest ethnic group in Ethiopia, Oromos historically have not enjoyed a level of political influence commensurate with their size. However, since the EPDRF came to power, Oromos have participated directly in the governing coalition through the Oromo People’s Democratic Organization (OPDO). OPDO members are ministers in the federal government and hold a range of public positions of power and influence at the federal level. There has, nonetheless, been tension between a number of Oromo groups and the central government, due in part to perceived oppression and the displacement of Oromos from the land traditionally used by Oromo people but now used for the capital, Addis Ababa (which is entirely surrounded by the Oromia region).

   3.7 In April/May 2014, large-scale protests were held against the government’s announced intention to further expand Addis Ababa into Oromia, including towns and agricultural lands currently under the control of the Oromia regional government. … The protests started out peacefully, but once the security forces moved in violence occurred against unarmed protesters. The violence was not limited to generalised violence against protesters, and there are reports that protest leaders were targeted by authorities. At least 17 protesters were killed, including protest leaders. According to the Oromo Federalist Congress (OFC), a registered opposition political party, between 350 and 500 of its members were arrested in association with the protests. Credible interlocutors in Addis Ababa told DFAT that the violence likely reflected the lack of preparedness by authorities for the scale of the protests, causing them to overreact.

   3.8 Protests against the proposed Master Plan occurred again in Oromia in late 2015, and continued into 2016. According to international NGO Human Rights Watch, more than 140 protesters were killed in clashes with armed government forces (including police and the military) between November 2015 and January 2016, while dozens more have been injured or arrested. In January 2016, the government announced that it was no longer planning to implement the Master Plan.

   3.9 DFAT assesses that the violence against the protesters was not targeted at Oromos on the basis of their ethnicity, but reflected the government’s sensitivity to some forms of political opposition. People from all ethnic groups in Ethiopia are at risk of violence or detention if they actively and openly oppose the EPRDF. DFAT assesses that the risk faced by Oromos is broadly consistent with that faced by people of other ethnicities who undertake similar activities. While the government actively targets Oromos with links—real or perceived—to the OLF, there is no credible evidence that this extends to people being targeted solely because of their Oromo ethnicity in the absence of any political element.
   …

   Political Opinion (Actual or Imputed)

   …
   3.36 In 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. While Ethiopia’s ATP is similar in wording to legislation in some western countries such as the UK and Australia, its implementation is significantly more restrictive of political freedoms. These restrictions, combined with the government’s effective security and intelligence infrastructure, have been partly responsible for the relative security in Ethiopia during a period of instability and violence in the region.
   However, the government has been criticised for perceived breaches of human rights. These alleged breaches include restrictions on freedom of expression, freedom of association and the activities of civil society organisations and journalists, as well as more serious allegations of extrajudicial killings, torture, arbitrary detention, harassment and abuse, particularly against political opponents and independent journalists and bloggers. There are reports of public servants who are not EPRDF members having their career progression curtailed. Government security forces reportedly regularly detain and torture—and sometimes commit extrajudicial killings of—vocal opponents of government policies. Armed opposition groups, including the ONLF and the OLF, have also been accused of carrying out abuses and violent attacks
   on government forces and civilians.

   3.37 Prominent 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.

   3.38 In 2014, and again in late 2015 and early 2016, unrest in Oromia—triggered by opposition to the federal government’s proposed major extension of the boundaries of Addis Ababa under the new city Master Plan—led to shootings, beatings and widespread arrests and detentions. Those affected included senior leaders of the OFC, a registered political party.
   …

   3.40 The active suppression of opposition parties and activists has limited their strength and
   effectiveness. Some opposition groups run their operations from outside Ethiopia. The election results reflect this suppression, with the ruling EPRDF winning 100 per cent of the seats in the Ethiopian parliament at the 2015 elections. The African Union was the only international observation mission permitted to observe the election, and there were complaints from opposition parties such as the Medrek coalition and the Blue Party about access to polling stations, harassment of voters and restrictions on campaign activities. Local media reports suggested that up to 500 opposition-party members had been arrested and detained in the lead-up to the elections. The African Union, the European Union and the US all commented publicly that the elections were generally peaceful, but stopped short of calling them ‘free and fair’, given concerns over the constraints faced by opposition parties and supporters.

   3.41 DFAT 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.
   …
   Treatment of Returnees
   …
   5.17 There are a smaller number of people returned to Ethiopia after making asylum claims in western countries. The bulk of those returned from western countries are voluntary returnees; the Ethiopian government is reportedly reluctant to accept involuntary returnees. There has been some (limited) monitoring of voluntary returnees by the government, and DFAT is not aware of any problems having been faced by returnees on the basis of their being failed asylum-seekers. Nonetheless, DFAT assesses that people who are returned to Ethiopia and who are perceived as being political activists opposed to the government face a high risk of being monitored, harassed, arrested and detained, particularly if they continue to engage in political activities upon their return and if they are associated with groups that have an armed militant component. This is consistent with an April 2015 report on the conditions for returned
   political activists by Norwegian organisation LandInfo, which found that ‘those who will be under the Ethiopian authorities’ suspicion are … people they apprehend as a threat and who may mobilize and are prepared to use military force for change’. DFAT also assesses that people who openly criticise the Ethiopian government while they are outside Ethiopia face a high risk that the Ethiopian authorities will be aware of these activities and may take action against these people upon their return. DFAT notes that Ethiopian authorities have tried, convicted and sentenced a number of political and human rights activists and journalists in absentia.

2. More recently the situation has deteriorated further. In October 2016 the government declared a state of emergency. In the following month, authorities arrested at least 11,000 people. A majority of the arrests were made in the Oromo and Amhara regions.[6]

   [6] “Ethiopia state of emergency arrests top 11,000”, Al Jazeera, 13 November 2016, accessed at on 16 March 2017.

3. The US Department of State (US DOS) report on human rights practices in Ethiopia for 2016 states the following:[7]

   [7] US Department of State 2016, Country Reports on Human Rights Practices 2016 – Ethiopia, 3 March 2017, executive summary

   Security forces used excessive force against protesters throughout the year, killing hundreds and injuring many more. The protests were mainly in Oromia and Amhara regions. At year’s end more than 10,000 persons were believed still to be detained. This included persons detained under the government-declared state of emergency, effective October 8. Many were never brought before a court, provided access to legal counsel, or formally charged with a crime. On June 10, the government-established Ethiopian Human Rights Commission (EHRC) reported and presented to parliament a summary of its report. The EHRC counted 173 deaths in Oromia…

   On August 13, the international NGO Human Rights Watch (HRW) reported an estimate that security forces killed more than 500 protesters. In October the prime minister stated the deaths in Oromia Region alone “could be more than 500.” The UN High Commissioner for Human Rights requested access to Oromia and Amhara regions, which the government refused. Following dozens of deaths at a religious festival in Bishoftu on October 2, groups committed property damage. On November 9, international NGO Amnesty International reported more than 800 persons were killed since November 2015.

   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. (bold added)

   …

   On August 6 and 7, security forces reportedly killed approximately 100 persons in response to demonstrations in major cities and towns across the Oromia and Amhara regions. Political opposition groups reported government forces killed more than 90 protesters in Oromia.[8]

   [8] US Department of State 2016, Country Reports on Human Rights Practices 2016 – Ethiopia, 3 March 2017, Section 1. Respect for the Integrity of the Person, Including Freedom from: a. Arbitrary Deprivation of Life and other Unlawful or Politically Motivated Killings,

   …

   Political Prisoners and Detainees

   The number of political prisoners and detainees at years’ end was not known. The government detained journalists and political opposition members.

Police arrested Bekele Gerba, deputy chairman of recognized political party the Oromo Federalist Congress (OFC), and 21 others in November and December 2015. On April 22, the attorney general charged them under the ATP. Authorities reportedly mistreated Bekele and others, including denying adequate medical care and access to visitors, including legal counsel. Their trial continued at year’s end.[9]

[9] US Department of State 2016, Country Reports on Human Rights Practices 2016 – Ethiopia, 3 March 2017, Section 1. Respect for the Integrity of the Person, Including Freedom from: e. Denial of Fair Public Trial,

…

Authorities arrested, detained, and harassed persons for criticizing the government. NGOs reported cases of torture of individuals critical of the government. The government attempted to impede criticism through intimidation, including continued detention of journalists and those who express critical opinions online and opposition activists, and monitoring of and interference in activities of political opposition groups. Some feared authorities would retaliate against them for discussing security force abuses. Authorities arrested and detained persons who made statements publicly or privately deemed critical of the government under a provision of the law pertaining to inciting the public through false rumors.[10]

…

Political Parties and Political Participation: The government, controlled by the EPRDF, unduly restricted political parties and members of certain ethnic groups, particularly the Amhara and Oromo, who stated they lacked genuine political representation at the federal level. The state of emergency regulations restricted political parties’ ability to operate. For example, the regulations prohibit any political party “from briefing local or foreign journalists in a manner that is anticonstitutional and undermining sovereignty and security.”

Authorities arrested and prosecuted political opposition members including under allegations of terrorism (see section 1.e., Political Prisoners). Government officials alleged many members of legitimate Oromo opposition parties were secretly OLF members and, more broadly, that members of many opposition parties had ties to Ginbot 7.

The OFC reported that authorities have kept OFC general secretary Bekele Nega under house arrest since December 30, 2015. Security personnel reportedly told him not to leave his house in Addis Ababa, use his phone, or give any interviews to media. Authorities also arrested other OFC leaders and members including Merera Gudina and Bekele Gerba (see section 1.e., Denial of Fair Public Trial, Political Prisoners and Detainees).[11]

[10] US Department of State 2016, Country Reports on Human Rights Practices 2016 – Ethiopia, 3 March 2017, Section 2. Respect for Civil Liberties, Including: a. Freedom of Speech and Press,

[11] US Department of State 2016, Country Reports on Human Rights Practices 2016 – Ethiopia, 3 March 2017, Section 3. Freedom to Participate in the Political Process,

1. The applicant’s representative provided lengthy submissions with references to numerous recent country information from credible sources, including Human Rights Watch, Amnesty International, Dutch Council for Refugees, ABC, and others. The country information is unequivocal – the Ethiopian government engages in the violent suppression of all political dissent. Oromos have been targeted since 2015 when protests started against the expansion of Addis Ababa’s administrative boundaries and the situation worsened when a state of emergency was declared in October 2016.

1. There is credible country information that the Ethiopian government is quite effective in its surveillance efforts abroad:[12]

   Thousands of Ethiopians have fled threats to their lives and security, and many have found asylum in Europe. Now Ethiopian spy agencies are trying to silence any independent criticism of government policy by extending their reach abroad, with the aid of advanced surveillance tools designed and sold by several European companies. These tools give intelligence officials access to files, emails and activity on a target's computer. They can log keystrokes and passwords and remotely turn on a device's webcam and microphone—effectively turning a computer into a listening device.

   [12] F. Horne, “How Ethiopia Spies on Its Diaspora in Europe”, Human Rights Watch, 1 April 2014, accessed at on 17 March 2017.

Well-founded fear of persecution

1. Overall the Tribunal found the applicant to be a credible witness in relation to his evidence about his support of the Oromo cause and his activities in Australia.

2. The applicant’s account and the fear of harm he expressed are consistent with available country information, including that referred to in the most recent, 2016 DFAT report cited above. The report and other country information back the applicant’s claims that support for the opposition can lead to arrest, detention, physical ill-treatment, torture and death.

3. The Tribunal accepts that the applicant is Oromo by ethnicity, that he is opposed to the ruling EPRDF, that he has been engaged in anti-government protests and other activities in Australia and that the only reason he might refrain from further activities in Ethiopia, on return, would be because of his fear of serious harm.

4. The Tribunal finds that the applicant’s activities in Australia are genuine, that he is motivated by his political opinion and ethnicity. The Tribunal has not disregarded these activities pursuant to s.91R(3).

5. The Tribunal accepts that the applicant has attended protests, gatherings, seminars and other events where he has publicly either personally or by association advocated for the promotion of the Oromo cause or against the government of Ethiopia.

6. The Tribunal respectfully disagrees with the delegate’s assessment that the applicant is not at risk of harm because it is not “highly likely” that the Ethiopian authorities will find out about his activities. First, since the delegate’s decision the applicant has engaged in many other activities. Secondly, the Tribunal considers that the correct legal test is the “real chance” test rather than a “high likelihood” test.

7. The Tribunal accepts DFAT’s advice in the most recent Country Information Report that “people who openly criticise the Ethiopian government while they are outside Ethiopia face a high risk that the Ethiopian authorities will be aware of these activities and may take action against these people upon their return.” This is consistent with other country information, such as the HRW article (at paragraph 51 above).

8. The available country information indicates that political opposition activity in Ethiopia is severely repressed. Opposition leaders and activists are arrested and anti-terrorism laws or the state of emergency legislation is used against them. Members of opposition parties are arrested, detained, tortured, disappeared, ill-treated and killed.

9. The Tribunal also notes the information that there are irregular crack-downs on opposition activities in Ethiopia which can involve arrests of members of opposition parties, particularly around election times.

10. In these circumstances the Tribunal is satisfied there is a real chance on return the applicant will be arrested by the Ethiopian authorities because of his political and pro-Oromo activities in Australia.

11. The Tribunal finds that if the applicant returns to Ethiopia now or in the reasonably foreseeable future, there is a real chance that he will be stopped at the airport and interrogated, subjected to significant physical mistreatment and torture, and potentially a long term of imprisonment or arbitrary detention. He may also be tried, convicted and imprisoned of anti-terrorism offences. He may be disappeared and killed. The Tribunal finds that such treatment would constitute serious harm amounting to persecution for the purposes of s.91R(1)(b).

12. The Tribunal finds that the essential and significant reasons that the applicant risk persecution in Ethiopia are the Convention reasons of actual and imputed political opinion and his Oromo ethnicity for the purposes of s.91R(1)(a).

13. Finally, the Tribunal is satisfied find that the persecution would involve systematic and discriminatory conduct for the purposes of s.91R(1)(c).

State protection

1. As the harm the applicant faces is at the hands of the government and security forces, the applicant will be unable to obtain protection by those authorities from the harm he faces.

Internal relocation

1. The Tribunal is satisfied that the real chance of Convention persecution exists in the country as a whole and that safe relocation within Ethiopia is therefore not reasonably open to the applicant.

2. 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. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

DECISION

1. 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