1512413 (Refugee)

1512413 (Refugee) [2018] AATA 5202 (4 December 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1512413
COUNTRY OF REFERENCE:                  Ethiopia
MEMBER:Denis Dragovic
DATE:4 December 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 04 December 2018 at 7:26am
CATCHWORDS
REFUGEE – Protection visa – Ethiopia – ethnicity – half-Eritrean – child being Amharic ethnicity – particular social group – single female divorced with child – sexual assault victim – political opinion – Arena party – association with Eritrean spy – association with Ginbot 7 – fear of harm by ex-husband – risk of domestic violence – fear of forced child removal – failed asylum seeker – warnings from kebele – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant (the applicant) and her son (the son), who claim to be citizens of Ethiopia, applied for the visas on 31 July 2013 and the delegate refused to grant the visas on 20 August 2015. The Tribunal has sighted photocopies of both applicants’ Ethiopian passports and accepts that they are citizens of Ethiopia.
The applicants appeared before the Tribunal on 27 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya (Ethiopian) and English languages.
The delegate’s decision
In relation to [Mr A], the applicant's former neighbour who had been deported to Eritrea, the delegate found it far-fetched that he, as an Eritrean visiting Ethiopia for the purpose of spying or political activities, would take sensitive images to a photo shop in Addis Ababa to have hard copies printed. The delegate did not believe that a person named [Mr A] visited the applicant at her work [on] a number of occasions and did not accept that he stayed with her and her son in their home without her husband’s prior approval.
In relation to the applicant's fear of harm due to her Eritrean background and membership of the Arena party, the delegate did not accept that the applicant, having been married to a civil servant, [details deleted] had the applicant been involved in opposition politics.
The applicant has also claimed to fear persecution on the basis of being half Eritrean. The delegate concluded that based on the applicant's responses it appears that she had not suffered persecution or discrimination on the basis of being Irob or having an Eritrean parent. She did not accept that the applicant would suffer persecution on the basis of her race.
The applicant has claimed that she is a vulnerable person due to past experience of sexual assault by [soldiers]. This incident occurred in 2007 at a checkpoint when she was questioned about her ID card. The delegate did not accept that groups identified as vulnerable women or women who have been sexually assaulted are a social group within society.
The delegate noted that country information did not support a finding that the applicant would be denied access to basic services which would otherwise threaten her capacity to subsist should her family be unwilling to support her and she was unable to secure employment.
The delegate did not accept that any discrimination the applicant would suffer would be of such a magnitude as to amount to persecution.
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 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence and findings of fact
The applicant is from [City 1], in the region of Tigray, and speaks, reads and writes Tigrinya, Amharic, and Irob. She has [several siblings] who continue to live in Ethiopia. One sister lives in [City 1] and another [distance] away. She isn’t sure where one of her brothers is while the other is in prison.
The applicant’s mother is Ethiopian while her father is Eritrean. After the Ethiopia-Eritrea war her father was deported to Eritrea in 2000. She provided information to the Tribunal about her father’s activities which she has claimed led to his deportation including that he would collect money for the Eritrean government and supported their cause.
The applicant was married [in] September 2010. Her husband arrived in Australia [in] June 2011 as the holder of a student visa [which] was valid until 31 August 2013 to study a [degree] at [a] University. [In] August 2013 her husband departed Australia. The applicant arrived in Australia [in] April 2012 as a dependant on her husband’s student visa and has not departed since. The applicant claims that she and her husband separated [in] June 2013. She lodged an application for a protection visa on 31 July 2013.
The applicant claims that she has been spat on, slapped and verbally abused in the past because of her Eritrean heritage.
She has claimed that she was sexually abused in 2007 at a check point by soldiers.
The applicant has only one child, the second named applicant.
I accept as fact the applicant’s background claims as stated in the above section.
Membership and activities with Arena Tigray
The applicant claims that she fears harm for reason of being a member of the Arena Tigray Party. I put to her that the Arena Tigray Party is a legal political party. She responded that even though it is a legal party, the current ruling party may still arrest someone any day. It is legal in name only she claimed. She said that because it is an opposition party you don’t know if you will ever be arrested. She joined in 2008 and claims to have remained a member until she came to Australia in 2012.
She claims to have received numerous warnings from the kebele (the smallest administrative unit of Ethiopia, similar to a neighbourhood). I asked her whether the worst thing that had happened to her because of her political affiliation was that she got warnings from the kebele adding that in her first statutory declaration she didn’t mention any problems with the kebele. She responded that it wasn’t just once that she was warned but many times. She explained that when she tried to distribute leaflets and get others involved then she would get warnings from the ‘secret service’. She added that the omission could have been because she was stressed and worried. I put to her that if she had problems with the government but didn’t mention that she was warned or threatened in her original statutory declaration it raises questions on whether it occurred at all or the overall impact if had on her. She responded that it appears in the decision record which was provided by the applicant to the Tribunal. I read to her what was written in the decision record: ‘Aside from this activity [distributing brochures and talking to people ahead of the 2010 election] and one incident of abuse the applicant stated that she was not a very active member of Arena.’ I acknowledged that harassment by the government is mentioned but that it was claimed to have occurred only once in the lead up to the 2010 election. She said that the reference was to the worst incident. I put to her that it is not what is recorded on the decision record. She said that warnings came often. I put to her that it appears that what she said then was that she had problems during the 2010 election but not before and after. She stated that there were problems at other times but she didn’t mention them because she was very stressed and confused. She fears that because she is a member of Arena she doesn’t have the same rights as other citizens because of her political involvement.
I listened to the recording of the Departmental interview. The delegate asked the question, ‘What persecution have you suffered as a result of your membership of Arena Tigray.’ The applicant responded with a description of campaigning for Arena Tigray in the lead up to the 2010 election. She explained that she was distributing brochures and explaining to people about Arena Tigray and that government people opposed them, abused them and asked them what they were doing. It is not clear from her response whether the abuse during the lead up to the 2010 election happened on some occasions or only once. Giving the applicant the benefit of the doubt and for the reason that it is widely recorded as being a contentious campaign I accept that the harassment described occurred on more than on one occasion during the 2010 campaign.
According to the delegate’s decision the applicant’s husband wrote to the Department enquiring about visa options while noting that he did not know of his wife’s political activities. At the hearing she refuted this and stated that he did know that she was a member but he didn’t know the type of work she was doing. She added that he didn’t know that she was facing threats from the kebele. Her statutory declaration dated 22 April 2014 supports this view as she stated that her husband knew that she was a member and that it sometimes caused conflict between them as he was a supporter of the government. Without hearing from the husband and based on the applicant’s claims that her husband may have had ulterior motives for writing to the Department, I find that the husband’s letter was contrived for purposes other than to enquire about visa options and as such I give it no weight including other information contained within it.
She claimed that her husband didn’t know that she was threatened by members of the kebele. I put to her that a kebele looks after about 500 families, which she agreed, and stated that I find it difficult to understand how her husband would not know that members of the kebele were warning her of her political activities. She said that she feared her husband would stop her from the work. I put to her that the kebele may have told him. I put to her that during the 2010 election there were a lot of activities going on and the kebele is small and it’s hard for me to believe that at no stage did her husband learn of others warning his wife of her political activities. She responded that he would go to work in the morning and come home from work in the evening as he was busy.
I accept that the applicant was a member of the Arena Tigray party, that authorities in the kebele knew of her membership and that she contributed to the party’s efforts during the 2010 election by distributing leaflets.
The applicant’s claims of receiving warnings have evolved over time with none being mentioned in the first statutory declaration, to a description of one type of abuse during the 2010 campaign in the Departmental interview to numerous at the Tribunal hearing that extended beyond the election period. As the applicant’s claims have changed over time I now turn my mind to this matter. I note that she claims that her husband was not informed by the kebele of her transgressions despite the kebele being a small social structure and her transgressions claimed to be numerous and the warnings often. I also note that the party is legal and that she has stated that she was not a very active member. Considering these facts and her evolving claims I find that the applicant did receive warnings which were so minor that they did not rise to the level that her husband was involved or even possibly informed. I also find in line with her Departmental interview that such warnings occurred only during the 2010 election and not at any other period. I do not accept that she received any warnings from what she referred to as the ‘secret service’.
Association with [Mr A]
The applicant claims that her cousin, [Mr A], was deported, along with her father, to Eritrea. They met when she was working [in] Ethiopia in November 2011. He stayed with her for three months while her husband was at that time in Australia. He kept [discussing the] photos and to not tell anyone about them. She claims that the photos appeared not to have any relevance to him. She asked why he was taking pictures of the house of parliament and of authority figures. She claims that he then told her of his role as a spy for the Eritrean government.
I put to her that her story was different to what she wrote in the 22 April 2014 statutory declaration. I read to the applicant what she had written at [28]: ‘He did not tell me anything about his political involvement. It was when I saw the photos that I knew he was involved in political activities against the Ethiopian government.’ She responded that when she saw the pictures she assumed involvement but it was later that he told her.
The applicant provided more information about the pictures stating that they were of the parliament, various roads, individual authorities and the camps. I put to her that they could be photos a journalist would take. She responded that she thought that it was for military purposes. I put to her that possibly they were but possibly not. She said that she assumed at the time that they were.
She said that his friends would come to her house and exchange documents. I put to her that there could be many possibilities for that. She said that she was threatened to be killed by his friends if she went to the authorities. She was also warned not to allow anyone to see the photos.
The applicant said that a cousin learned through friends that [Mr A] was arrested in 2013 and that he had told the authorities about her. She said that, ‘The people who told my cousin did not want to reveal their names because they were scared for their safety,’ adding in a 2018 statutory declaration, ‘I think that my cousin was told about this as a warning that I might be imprisoned too and this is the reason that he told me.’
No one from her family has been served an arrest warrant or a court summons, though she claimed that it was because she left Addis Ababa where she had previously lived with her then husband. She said that her sister, who lives in Tigray region, received visits from government authorities looking for the applicant, beginning three years ago and most recently three months ago. I asked why they would be looking for her if she left Ethiopia through the airport and it would be known that she was abroad. She surmised that maybe they do know where she is but still sought her out.
With regards to the local police visiting her sister I put to her that their visits could be for other reasons, especially if I were to accept that her brother was in prison, another is missing and her father was deported to Eritrea. She reiterated that the main reason was because of her accommodating [Mr A] and because of her work with Arena, though it could be because of her brother’s arrest she added. I put to her that she had accommodated [Mr A] in 2011 yet she claimed police came in 2015. I asked why they would wait four years to look for her. She responded that [Mr A] was arrested in 2013 and they came looking for her two years later. She said that it was a guess that it was three years ago and possibly they were looking for her in Addis Ababa even immediately after his arrest. I noted that they would know that she had left the country so why would they be looking for her at all. She did not respond.
It would appear implausible that someone spying for the Eritrean government would take photos of public structures and people of which [are] available online or on television (the applicant stated in her statutory declaration that she recognised the people in the photos as she had seen them on television) and then, rather than send the unprocessed film, they would print them in Ethiopia and risk being discovered. It is hard to believe that someone spying for another country would simply admit it to the applicant, who he hadn’t seen since childhood, and whose allegiances he could not have known. It is also difficult to understand why the applicant would be pursued in Ethiopia two years after the claimed warnings that [Mr A] had provided the applicant’s name to the authorities, especially considering that the applicant left Ethiopia legally under her own name. That the warnings were received through a cousin, who claims that he was told by another group of people who were scared to reveal their names that they heard [Mr A] mention her name to authorities, makes for a very unreliable chain of evidence. Due to the doubts that arise from these issues I do not accept that [Mr A] was a spy, that he was arrested, reported his association with the applicant to the authorities or that he was deported.
While I give the applicant the benefit of the doubt and accept that authorities visited her sister’s house I do not accept that they asked for her. I make this finding for the reasons that: she left the country legally, meaning the authorities knew she was not present; I found her relationship with [Mr A] not to be of interest to the authorities; and her brother had not been arrested at the time she claimed the visits began. In other words there is no basis upon which she would have been of interest to the authorities.
Sur place activities

The applicant said that she was not a member of the opposition group formerly designated as a terrorist organization, Ginbot 7, but had participated in protests and activities in support of them along with other members of the Ethiopian Community Association. She provided photographic evidence, listed dates and places. Her activities included attending general meetings, telling others about meetings, taking part in demonstrations and selling flags. I accept that she undertook the activities that she claimed to have done and participated in public protests in Australia against the regime.
The applicant has also said that she has been involved with [an organisation] by attending fundraisers and events, which I accept.
The applicant has claimed that her [brother] was arrested in September 2017 for supporting Demhit. She claims that he remains in prison. Country evidence shows that Demhit fractured in 2015 and a part of the movement returned to Ethiopia. The remaining part, a much smaller faction comprising of approximately 600 personnel, remained in Eritrea.[1] Nevertheless, giving the applicant the benefit of the doubt I accept that her brother was detained in 2017. I have given further consideration to whether he remains in prison below.
[1] Letter dated 2 November 2017 from the Chair of the Security Council Committee pursuant to resolutions 751 (1992) and 1907 (2009) concerning Somalia and Eritrea addressed to the
We discussed where the applicant would return if she had to return. The applicant spent some years living with her ex-husband in Addis Ababa but she was born and raised in [City 1] where a sister and mother are still living. For this reason, in considering the applicant’s return to Ethiopia I have considered it against the circumstances she would face in [City 1] and its surrounds.
Considerations
Considerations - political claims
The political situation in Ethiopia has changed dramatically in the past year. It is important to reflect on these changes as they impact the reasonably foreseeable future, and consider whether the applicant faces a well-founded fear of persecution in this new political environment. While I have given regard to the latest DFAT report dated 28 September 2017, where the information conflicts with more recent reporting I have given more weight to more current material as the situation has substantially changed, making the DFAT and other human rights reports dated. The representative argued the validity of earlier human rights reports based upon the country’s history of institutional violence against its citizens. While I accept that this argument has merits, ultimately I must determine the circumstances into which the applicant would return based upon her particular profile. The representative’s argument is applicable when considering the ‘deep state’ or independent government actors pursuing an agenda through such means as extrajudicial killings. In relation to the applicant, who is someone with a low political profile, the circumstances she faces upon return I find are shaped by the general political environment rather than the possibility for rogue actors to pursue their agenda.
The Ethiopian People’s Revolutionary Democratic Front (EPRDF) has been the ruling political party in Ethiopia since 1991 through to today. It won a closely contested election in 2010 giving Prime Minister Meles Zenawi a fourth term in office. In 2012 Hailemariam Desalegn took over as Prime Minister from within the EPRDF. In 2015 the EPRDF won again in an overwhelming victory that won them every seat in Parliament. In April 2018 Abiy Ahmed, also from the EPRDF, replaced Desalegn as Prime Minister after the latter voluntarily resigned. Prime Minister Abiy, with support from his cabinet and parliament, subsequently introduced substantial changes including:
·     Firing the head of Ethiopia’s prison service after allegations of widespread torture and subsequently freeing thousands of political prisoners.[2]
·     Arresting the head of Somali region over human rights abuses.[3]
·     Pardoning Andargachew Tsege, a leader of Ginbot 7, which was previously designated a terrorist organisation until the designation was lifted by Abiy,[4] along with reaching a peace agreement with another rebel group, Oromo Liberation Front, which has been waging a 45 year civil war.[5]
·     Lifting the state of emergency and making peace with Eritrea which has led to the first direct flights between Ethiopia and Eritrea.[6]
[2] 'These changes are unprecedented': how Abiy is upending Ethiopian politics, The Guardian, 8 July 2018, accessed 6 September 2018
‘[3] Ethiopia arrests ex-Somali region head over rights abuses’, Al Jazeera, 28 August 2018, access 10 September 2018
[4] Ethiopia pardons abducted Briton on death row, The Guardian, 27 May 2018, accessed 6 September 2018
[5] OLF rebels look to political future, carve out new identity, Ethiopia Observer, 3 September 2018, Ethiopia's new Prime Minister has had a stellar two months, can he keep it up?, CNN, 7 June 2018, accessed 6 September 2018
These changes have in turn led to the return of numerous political leaders who were living in exile including Tamagn Beyene and Junedin Sado.[7] Rebel fighters have followed the return of their leaders, including from neighbouring Eritrea where they have been supported as a part of the low intensity proxy war between the two countries.[8]
[7] Ethiopia’s former minister returns home as reconciliation deepens, Nazret.com, 3 September 2018 accessed on 6 September 2018
[8] Ethiopia's ex-rebel group Ginbot 7 returns from Eritrea base, africanews.com, 3 September 2018, accessed 6 September 2018
The applicant submitted DFAT country advice relating to the circumstances of people such as the applicant with links to Eritrea:
The political-level tensions between Ethiopia and Eritrea may mean that people with links to Eritrea who actively and openly oppose the Ethiopian government may attract a greater level of attention from authorities than other members of Ethiopia society.
I note that the ‘political-level’ tensions have dissipated. Ethiopia has met the demands of Eritrea in the Algiers Agreement. As such this information is no longer current.
The representative made a submission on 18 July 2018 in which she argued that country information showed the situation was fluid, including that a prominent opposition leader ‘expressed cautious optimism’, and noted that any progress depends upon what the party allows the Prime Minister. It also noted that 1,000 people had been detained since an extension of the state of emergency, which I note was lifted in June, 2018.[9] The representative argued that ‘a change in prime minister over recent months is insufficient to outweigh Ethiopia’s history in this regard, including longstanding structures and systems.’ While it is true that protests continue, I note that those referenced by the representative are over economic issues. The representative provided a narrative from a 2017/2018 Amnesty International Report and in a subsequent submission dated 26 September argued that the report remained relevant despite political changes due to the government showing a ‘long pattern of human rights abuses.’ I note that the report provided information of events occurring in 2017 and the first two months of 2018. In some instances more recent information was readily available such as the following:
· The report mentions terrorism charges against Merera Gudina, Chairman of the Oromo Federalist Congress (OFC) in 2017, which were dropped but that charges of outrages against the Constitution would proceed. Latest information available is that he was released from prison and charges were dropped in January 2018.[10]
· The arrest of Beqele Gerba, Deputy Chairman of OFC, was in December 2015, and the reference to a subsequent charge of provocation and preparation for outrage against the Constitution was in 13 July 2017. Latest country information shows that Gerba has been pardoned.[11]
[9] ‘Ethiopia lifts state of emergency imposed in February,’ Al Jazeera, 5 June 2018, accessed September 10, 2018
[10] ‘Merera Gudina, Ethiopia opposition leader, freed’, BBC News, 17 January 2018, accessed 10 September 2018
[11] ‘Ethiopia govt drops case of Oromo leader Bekele Gerba, six others Africa’ , africanews.com, 13 February 2018, accessed 10 September 2018
A s.424A letter was sent on 12 September 2018 in which I asked the applicant to respond to further political changes in Ethiopia, specifically:
·     Andargachew Tsege [prominent opposition political leader] being pardoned and released from jail.[12]
·     Fighters from Ginbot 7 returning to Ethiopia from Eritrea.[13]
·     Ginbot 7 being taken off the terrorist organisation list.[14]
·     Numerous high profile opposition leaders who were living in exile returning, including Tamagn Beyene and Junedin Sado.[15]
The applicant responded that the view portrayed by international media does not reflect the situation on the ground in Ethiopia. She specifically noted ethnic tensions and referenced reports of displacement in the Oromo-Somali border region and Gedeo in the Southern Nations, Nationalities and People’s Region and Guji in Oromo region. She also submitted that returning opposition party leaders were kept under close guard and could not move freely. She said that while many prisoners have been released others are still detained.
[12] ‘Andargachew Tsige pardoned by Ethiopia’, Al Jazeera, 27 May 2018, accessed 2 October 2018
[13] Abdur Rahman Alfa Shaban, ‘Ethiopia’s ex-revel group Ginbot 7 returns from Eritrea based’ Africanews.com, 3 September 2018, accessed 2 October 2018
[14] Daniel Mumbere, ‘Ethiopia removes ‘terrorist’ label from OLF, ONLF and Gibnot 7 opposition groups’, africanews.com, 5 July 2018, accessed 2 October 2018
[15] ‘Ethiopia: Former minister Junedin Sado returns from exile’, Xinhua, 4 September 2018 accessed 2 October 2018
At the second hearing I reviewed the above mentioned country information and asked for her comments. She claimed that the government’s actions were only to appease the international community and for the purposes of the media. She said that nothing has changed as the new Prime Minister is still a member of the EPRDF. She noted that there continue to be arrests and abuses against peaceful protestors (this claim is backed by a reference to recent events made by the representative at the hearing[16]). She claimed that the reason the returning opposition figures are not in prison is because the government fears even bigger protests were they to arrest them. She claimed that those people who are returning are international figures and have protection based upon their high profile, giving the example of an Olympian who returned. This is correct, but as noted above it is also the case that thousands of political prisoners have been released.
[16] Amnesty International, ‘Ethiopia: Investigate police conduct after deaths of five people protesting ethnic clashes’, 17 September 2018, accessed 21 November 2018
The applicant claimed that her brother remains in prison having being detained in 2017. She claims that his continued detention is evidence that the political changes are not as dramatic as suggested by the media reporting. But the unprecedented level of change in Ethiopia including widely reported and verified evidence of thousands of political prisoners being released and peace with Eritrea (where Demhit was based) being formalised leads me to question whether the brother remains in prison. Giving the applicant the benefit of the doubt I accept that he is in prison. This, though, provides only limited value in assessing the circumstances the applicant would return to. Is he in prison because of being a low level supporter of Demhit or is he there for another reason, for example, because he murdered someone in a feud unrelated to politics but evidence was lacking so an alternative charge was laid against him? Without knowing the circumstances and the applicant not having knowledge of the details I can only give this evidence limited weight when considering the specific circumstances the applicant would return to.
In conclusion, I have carefully weighed the information provided by the applicant and her representative, including considering the provenance of some of the opinions (blogs of writers with no clear expertise given lesser weight) and find that the situation has markedly and sustainably changed for the better. The sources of these changes are not only international media but regional and local outlets. While abuses will undoubtedly continue to occur I must consider what circumstances the applicant will face upon return. In this regard the sacking of the head of prisons, the arrest of the head of Somali region for human rights abuses and the release of thousands of prisoners among other developments referenced above is a substantial shift that I find greatly reduces the likelihood that the state may harm someone with the profile of the applicant.
While it is possible that these political changes are challenged as the Prime Minister of Eritrea has noted,[17] I find the consensus view, based upon the cited articles in this decision and those provided by the representative, to be cautiously optimistic and, as one analyst noted, these changes are required for the survival of the ruling EPRDF coalition and as such will continue despite possible setbacks.[18] Any such setbacks, I find, would not affect the broader momentum for change in such a way that the applicant would be materially affected so that the risk she faces would increase.
[17] ‘Ethiopia and Eritrea have a common enemy’, Foreign Policy, 12 July 2018, accessed 6 September 2018
[18] ‘Ethiopia's Abiy Ahmed and the survival of the ruling EPRDF’, Al Jazeera, 29 May 2018, accessed 6 September 2018; other analysis includes ‘What Ethiopia needs is a new federal arrangement’, Al Jazeera, 15 August 2018, 6 September 2018; ‘Ethiopia hails its charismatic young leader as a peacemaker’, The Guardian,15 July 2018, accessed 10 September 2018
In the case of the applicant, she was a member of a legal political party whose activities could best be described as low level. She was never charged, arrested, detained or imprisoned. In Australia she participated in some protests and attended functions including some in support of Ginbot 7, a group whose leader has now returned to Ethiopia. Overall I would describe her contributions to Ethiopian politics whether in Ethiopia or Australia as peripheral and low level.
The applicant explained that she was never interviewed by media during her protests in Australia. She also confirmed that she was not active on [social media]. She said that she was concerned for her family back home and didn’t want them to be affected by her activities so she hasn’t been involved in interviews or [social media]. I put to her that by that same logic she won’t face a problem by being involved in protests in Australia as she was clearly conscious of the risks. She said that is why she doesn’t do media but does go to protests though she is not sure if the government knows about it or not.
In the new political environment, which I accept will ebb and flow in the reasonably foreseeable future, the risk to her has greatly reduced. I find that her association with Ginbot 7 no longer places her at risk because the organisation is no longer designated as a terrorist group and its prominent leader, Andargachew Tsege, has been pardoned along with the broader changes occurring in Ethiopia as outlined above. For similar reasons, her participation in [an organisation’s] fundraisers does not put her at risk nor does her engagement with [her community] in [Australia].
I do not accept that in the new political climate previous membership of a legal opposition party, including being known to be a member by kebele leaders, places the applicant at any risk especially considering that even under the previous circumstances the applicant faced harassment only during the contentious 2010 election and in a form that I find did not amount to serious or significant harm.
I have also considered her association with her brother who was arrested and accused of supporting Demhit. Considering Ethiopia is now accepting the terms of the Algiers Agreement, flights[19] and shipping[20] have resumed and the Prime Ministers of the two countries have met, any interest the Ethiopian government may have had in the applicant for being the sister of someone who was associated with a small rump rebel force supported by Eritrea, I find would not be pursued by the authorities in the reasonably foreseeable future considering the rapid rapprochement that is occurring.
[19] ‘Ethiopian Airlines Resumes Flights to Asmara’, AllAfrica, 14 July 2018 accessed 6 September 2018
[20] ‘Ship docks, road upgrade planned as Eritrea, Ethiopia ties strengthen’, Reuters, 5 September 2018 accessed 6 September 2018
I have also considered her father’s deportation to Eritrea, a circumstance that occurred in 2000. I note that no claims were raised of any harassment the applicant faced solely as a result of her father’s deportation despite continuing to live for seven years in the home area where she would have been known as the daughter of her father. I also note the considerable changes in the relationship between Eritrea and Ethiopia from the year 2000 when the war ended and now when the peace agreement is being implemented and borders are re-opening as discussed above. As such I find that her father’s deportation would of itself not put her at risk of facing a real chance of serious harm or a real risk of significant harm.
I have also considered whether the applicant would continue to participate politically and what risk this would pose to her. I note that her political contributions were peripheral and low level. In the past she joined a legal opposition group. Her actions in Australia were similarly of a low level nature. The applicant claimed that she would participate in protests against the Algiers Agreement and in support of the rights of the Irob people. (The representative submitted information that Irob protests have been approved by the Woreda (district level) with the only opposition being from the Tigrayan People’s Liberation Front about the date.) I also found that she would resume support for the legal opposition party, Arena Tigray, and I accept that she could choose to be active on [social media]. Collectively, across all modalities, I find that her involvement will be ‘low level’.

In the current political climate and into the reasonably foreseeable future, taking into consideration the country information discussed at the hearing and referenced in this decision, I find that low level political activity undertaken by the applicant would not amount to a real chance of serious harm or a real risk of significant harm.
In considering the applicant’s cumulative political profile into the reasonably foreseeable future, I find that the applicant’s previous profile, including that of her family, together with any participation in future political activity would not lead to her facing a real chance of serious harm or a real risk of significant harm.
Considerations – the applicant’s ethnicity
I have accepted that the applicant has been slapped, spat on and verbally abused for reasons of her part-Eritrean ethnicity. I asked about the current situation, in particular that there are peace discussions with Eritrea. She said that it may look like they are trying to resolve issues such as the release of political prisoners but there is no guarantee that they will not be arrested again; she added that Ethiopia is in a bad situation when it comes to the tribal situation and that it affects all people.
I read to her from the DFAT Report on Ethiopia the following:
Overall, however, DFAT assesses that Ethiopians with Eritrean heritage do not face a significantly greater risk of official or societal discrimination or violence than other groups in Ethiopia based on their ethnicity.[21]
She responded that at the moment the risk was tribal issues and people were getting killed.
[21] Department of Foreign Affairs, DFAT Country Information Report: Ethiopia, 28 September 2017 at [3.21]
I accept that she has in the past experienced racism. I find that she will continue to experience racism in the future akin to what she has experienced in the past. I do not accept that the severity amounts to serious or significant harm even were it to increase in frequency, which I find to be highly unlikely considering the rapidly improving relations between Eritrea and Ethiopia.
The applicant has also voiced concern over the Algiers Agreement, the peace agreement between Ethiopia and Eritrea which has demarcated the land boundary. She referred to her Irob community being divided between Ethiopia and Eritrea. I note that she does not live in the area of Badme, a town which is at the centre of the peace agreement and may shift from Ethiopia to Eritrea.[22] We discussed the location of Badme relative to her home town and that the border near her home town will not shift. She further submitted that her objection to this change is reflected in the broader Irob people’s objections and that this will add to her being perceived as a dissident (which I have considered above). Considering that the shifting boundary is a substantial distance away from her home area, I do not accept that the application of the Algiers Agreement will amount to serious or significant harm was she to return to her family home or to live with relatives. While I recognise her affinity with her tribe and her sense of injustice that the Irob may be separated across national borders, I do not accept that this will amount to serious or significant harm for the applicant.
[22] Eritrea - Ethiopia Boundary Commission: DECISION Regarding Delimitation of the Border between
The applicant claimed that she and her son would face harm for reasons of her husband and the father of her child being of Amharic ethnicity. She claimed that people in her home area would learn about this and that people who had lost loves ones through the actions of the regime would take out their anger against them. I put to her that she lived in the Tigray region and the EPRDF was a Tigrayan led movement. Why would anyone from that area condemn her and her son for having had ties to the regime? She said that there is hatred in other parts of Ethiopia against ethnicities associated with the regime.
While there have been tribal clashes in recent months in Ethiopia none have involved her people or were near her region. Nor has the applicant provided evidence of there being a history of tribal clashes in her region or involving the Irob despite the Tribunal specifically asking for it and providing time for the provision of such information (see s.424A letter dated 12 September). No evidence was found by the Tribunal.[23] Even were the applicants to travel outside of the Tigray region temporarily I do not accept that simply having a husband or a father who is Amharic would lead to there being a real chance of serious harm or a real risk of significant harm. As such I find that the applicants do not face a real chance of serious harm or a real risk of significant harm from inter-ethnic clashes or other racial based causes.
Consideration – single female, divorcee, woman without male protection, with a child
[23] Searches were made through Google, Refworld, CISNET
The applicant fears being a single female with a child without a family member to provide protection. She claims that when she is on her own she will face possible arrest and sexual abuse. I asked her how long her mother was the sole provider of her family after her father’s deportation in 2000 and in particular noted how she survived with [the] children. The applicant responded by simply stating that her mother had a lot of problems.
I asked her whether she and her son could live with her mother. She said that she could not because it is near the border where sexual abuse occurs. She said that there is no peace there and lots of soldiers live there. She said that the sexual abuse she experienced has left a big scar on her and that there is no guarantee that it won’t happen again. I asked about living with her sister in [City 1]. She said that the single sister rents a small place with a family and that there was no room. I put to her that she could do the same. She returned again to the claim saying that said couldn’t live in the area because there was no peace and because of tribal issues. I asked if she could live with her other sister who has a family but she said that her husband would not allow it. I put to her that Ethiopian culture is such that families are obliged to look after each other. She responded that they would accommodate her and her son but only for a few days. I acknowledge the distinction in circumstances between the sisters; one is single and never married, and the other is a divorcee with one child. Country information provided by the representative notes the limited information available on the standing of Ethiopian divorcees in their community. The reference provided states that ‘community disapproval is stronger for divorced women than the other forms of female heads. This study found that in the Woreda, a divorced woman is a threat to the society. It is believed among the community that she does not have good character and may negatively influence married women.’ The applicant said that she would be unable to find accommodation. I accept that if the applicant returned to her home area to live with her mother or alongside her sister that she would face social stigma but just as her sister has found accommodation she could as well (even with the possible additional challenges of being a divorcee) or alternatively she could live with her mother.
Regarding the applicant’s risk of sexual assault, DFAT reports that women in Ethiopia face a moderate risk of rape and sexual assault (see full reference below). Country information provided by the representative conflates general rape with domestic violence and spousal rape adding little additional value to the DFAT report in this particular instance. I note that the applicant had lived in Ethiopia for approximately ten months without male protection with her child before coming to Australia. She did not claim to have faced any harm during this period and was not hindered in any way. I do not accept that the applicant's husband would have left her and their son alone in Ethiopia if he thought they would be at risk without male protection. Nevertheless, I acknowledge that this was in Addis Ababa and as such give this little weight. I accept that she was sexually assaulted in 2007 by soldiers at a check point. This of itself does not indicate that the possibility of it occurring again is a real chance or a real risk but I give it some weight.
I acknowledge the country information regarding divorcees but find that community disapproval, and fears of other women that divorcees are of bad character would not lead to the applicant facing serious or significant harm. I also note the applicant’s evidence that her mother faced a lot of problems. But I give that evidence limited weight as no evidence was provided on what the problems were that her mother faced, and even were they to have been provided it would have reflected a very different time. Furthermore, with the peace agreement between Ethiopia and Eritrea and the opening of the borders the militarised situation that led to her sexual assault and which she fears will have changed. As such, I find that the applicant could return to either [City 1] to live with her mother or neighbouring her sister without facing social barriers or harm such as sexual assault that would amount to a real chance of serious harm or a real risk of significant harm.
The applicant fears domestic violence. I put to the applicant that she was no longer in a marriage, to which she responded that it happens in families. I read to her from the Department of Foreign Affairs report on Ethiopia:
DFAT assesses that women in Ethiopia face a high risk of domestic violence and sexual harassment. Women in Ethiopia also face a moderate risk of rape and sexual assault, including spousal rape.[24]
She responded by saying that what she has experienced and seen in the media is that the risk of rape and sexual assault is greater than moderate.
[24] Department of Foreign Affairs, DFAT Country Information Report: Ethiopia, 28 September 2017 at [3.55]
I acknowledge the country information submitted by the representative from DFAT, US Department of State and Freedom House in which it discusses domestic violence and rape but note that the applicant is not in a relationship. It would be speculative to assume that in the reasonably foreseeable future she would be. Based upon the applicant’s particular circumstances, I find that she does not face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future arising from domestic violence.
Considering the issues more broadly and collectively, being a single female without male protection and a divorcee with a child, and having reviewed the country information submitted by the applicant I find that she would not face a real chance of serious harm or a real risk of significant harm.
The applicant has claimed that her former husband’s family will take her child, the second applicant, away from her and harm him. I put to her that she has claimed that her former husband hasn’t been in touch with her for five years, there is no evidence that he tried to find out while in Australia where she had taken their son (when he could have made a police report), nor has he been in touch with her family members in Ethiopia since returning. I put to her that she is assuming that he is interested in their child. She said that she believes he would do something to hurt her. I put to her that she could go to the Ethiopian police to which she responded that he has more rights to their child than she does.
In a s.424A letter, I presented to the applicant information that shows the rights she has:
Dissolution of marriage will have effects on the children. The Ethiopian family law takes the matter of children seriously and tries to protect their best interest. The court when deciding the divorce, also decide, as to which spouses shall have custody of the children, care of their education, health, maintenance and the rights of the parents and the children to visit each other, The court shall take into account the income, age, health and condition of living of the spouses as well as the age and interest of the children. The court can, on application and taking into account the change of circumstances revise or reverse its diction requiring the custom day and maintenance of the children.[25]
[25] Fikadu Asfaw, Divorce and Ethiopian Law – Divorce and Its Effects under Ethiopian Family Law, published at HG.org, accessed 1 October 2018
The applicant responded that she believes that she would not be able to access such legal processes and that she would be harmed by her ex-husband before she had the chance to. She claims that she would not have the means to seek legal representation. Country information was provided by the applicant that supported the general view of there being discrimination against women in marriage and family relations. Other country information provided by the representative went counter to the information cited above and instead said that ‘the Civil Code does not provide for financial support for women from their former spouses, nor for remedies enabling them to claim child maintenance from their former husbands.’ This contradiction is vexing. It is difficult to comprehend how a law firm can be touting services that are not provided for by the law. As such I reviewed Ethiopia’s Revised Family Code, which the applicant’s representative referenced by way of an article from an Ethiopian law firm in a submission dated 26 September 2018. Article 82(5) of that code details the following:
From the time the petition for divorce is brought before it, the court shall forthwith give appropriate order regarding the maintenance of the spouses, the custody and maintenance of their children and the management of their property.[26]
Based upon the evidence before me in I find that the law does allow for applications of financial support and child maintenance costs.
[26] Federal Negarit Gazetta of the Federal Democratic Republic of Ethiopia, The Revised Family Code, Addis Ababa 4^th Day of July, 2000, accessed 1 October 2018
I note that the ex-husband has remarried, there are no claims that he has harmed her in the past and I found that there is a legal system that provides for her husband to pursue custody claims through the Ethiopian courts. To then suggest that he and his family would harm her and forcibly take her child away is speculative at best. That the applicant claims not to have the means to access legal representation is only relevant were her husband to act to take their child away. In this regard, the applicant stated that she has not been contacted by her husband in the five years since he left, which I accept as fact. When I put to her that this showed a disinterest on his part towards her and his son, she claimed that he can’t reach her in Australia but if she returned to Ethiopia he would be able to find her. I noted that he could have found her by reaching out to members of the Ethiopian community in Australia. She responded that he would have to do so through legal channels.
I find that the husband does not have an interest in pursuing custody or even a relationship with his son. I find that even was his family to do so upon her return, they would pursue the matter through the courts giving her a mechanism through which to present her case. In such circumstances I do not accept that there would be a real chance of serious harm or a real risk of significant harm from her husband or his family to her or her child in the reasonably foreseeable future were they to return to Ethiopia.
Considerations of being a failed asylum seeker
The applicant has claimed that she will face a risk arising from being a failed asylum seeker. I read to her from the DFAT report on Ethiopia:
There have been some reports of authorities monitoring voluntary returnees for a period following their return, but DFAT is not aware of any credible reports of voluntary returnees who are not active opponents of the government facing problems stemming from their status as failed asylum seekers.[27]
[27] Department of Foreign Affairs, DFAT Country Information Report: Ethiopia, 28 September 2017 at [5.20]
The applicant responded that it could refer to people not involved against this current government inferring that she was against this current government and as such would be at risk. Having found earlier that she was a low level peripheral participant in political activities with a father who was deported along with a brother who was arrested, and based upon country information that suggests a softening in the government’s approach to opponents as discussed above, I find that the applicant will not be monitored upon return and does not face a real chance of serious harm or a real risk of significant harm was she to return to Ethiopia for the reason of being a failed asylum seeker.
The representative noted at the second hearing that the applicant could choose not to return voluntarily. This is a possibility and as such I have also considered it. As noted by the representative I accept that there is an absence of information on involuntary returns. DFAT only notes, ‘there are very few successful involuntary returns to Ethiopia of failed asylum seekers.’ This could be because there were very few attempted involuntary returns or because there were many unsuccessful returns. Regardless, the changed political circumstances leave the statement with less currency. Under prior circumstances the closed political environment would have been the driver for difficulties that may have existed for involuntary returnees but noting the considerable changes that have occurred, as discussed above, I find that involuntary returnees with the low level political profile of the applicant would not face additional scrutiny above that of a voluntary returnee. For this reason I find that even was the applicant to refuse to return and was involuntarily returned she would not face a real chance of serious harm or a real risk of significant harm.
Cumulative considerations for the applicant
I have accepted that the applicant was a member of the Arena Tigray party and that she undertook some activities during the 2010 election. In addition, she would have an imputed political opinion against the government for the reason of her father being deported and her brother being detained. While in Australia her protesting and participation in fundraisers would add to her political profile. Nevertheless, her activities were minor. Even combined, were the new Ethiopian government tracking her activities in Australia I find that they would not rise to a level that under these circumstances would place the applicant at a real chance of serious harm or a real risk of significant harm. I have accepted that the applicant would, upon return, protest for the Irob cause and campaign for Arena Tigray. I noted that country information shows that the government has approved such protests. As such I found that were the applicant to participate in protests she would do so in protests that were legal.
I have also considered the harm she faces from social factors such as inherent racism, psychological harm for having her Irob community divided and bearing the stigma of being a single female divorcee with a child. While they are present I find that collectively they will not amount to serious or significant harm. The applicant also faces other risks such as sexual assault and other gender based harm and the knowledge that she had sought asylum.
When her circumstances are considered cumulatively, namely her past political activities and her likely future activities, social pressures that may cause psychological harm along with a risk of gender based violence or being identified as a failed asylum seeker, I find that she does not face a real chance of serious harm or a real risk of significant harm.
Consideration of the son

The applicant stated that there is no peace in the country and that she would not know whether he would come back each day after going to school, adding that tribal issues would leave her child at risk. No country information was provided to support this specific claim. I do not accept that the general security situation, as discussed in this decision, is such that the second applicant would be at risk while going to school or in any other childhood based environment.
She said that her son only speaks English and can’t speak Tigrayan. I asked her whether, in the [number of] years of his life, including the first couple he spent in Ethiopia, she spoke to her son in her language, noting that she is unable to speak English. She claimed he speaks only a few words of Tigrayan. I do not accept that the applicant’s son does not speak Tigrayan for the reason that the mother does not speak English well enough to communicate with her son (see statutory declaration 2014 at [39]) and that he spent his first few years in Ethiopia attuned to the local language response. As such I do not accept that the son faces any harm due to his language skills.
I chose not to interview the child for reasons of his age.
Even if the second applicant’s Ethiopian language skills are not to the standard required for [an age] year old in school I find that he would be able to learn it as any other child would while benefiting from his knowledge of English. I do not accept that a disturbance in the second applicant’s schooling amounts to serious or significant harm. I do not accept that in any other permutation or when considered cumulatively the child’s circumstances would lead him to face a real chance of serious harm or a real risk of significant harm.
Conclusion
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.
Denis Dragovic
Senior Member

President of the Security Council, 6 November 2017, accessed 6 September 2018

The State of Eritrea and The Federal Democratic Republic of Ethiopia by the Boundary Commission, 2002, accessed 7 September 2018

[2018] AATA 5202

4 December 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing