1514342 (Refugee)

[2017] AATA 1529

1514342 (Refugee) [2017] AATA 1529 (1 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1514342

COUNTRY OF REFERENCE:                  Eritrea

MEMBER:Roslyn Smidt

DATE:1 September 2017

PLACE OF DECISION:  Sydney

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 01 September 2017 at 4:59pm

CATCHWORDS

Refugee – Protection visa – Eritrea – Political opinion – Fears harm due to ethnicity – Former member of an EPLF organisation – Member of the PFDJ

LEGISLATION

Migration Act 1958, ss 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2.    The applicant, who is a citizen of Eritrea, applied for the visa [in] June 2014 and the delegate refused to grant the visa [in] October 2015.

3.    The applicant was represented in relation to the review by his registered migration agent.

THE RELEVANT LAW

4. 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.

5. 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).

6.    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.

7. 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’).

8. 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.

BACKGROUND

1. The applicant is a [age] year old married man of [a certain] ethnicity and Catholic religion from Asmara in Eritrea. His wife and [number] children remain in Eritrea. His father is deceased. His mother [and siblings] remain in Eritrea. He has [family members] in [Country 1] and [another family member] who resides in [Country 2].

2. According to his application, the applicant completed secondary school in [year]. He attended [a certain] school from [year] to [year] and qualified as [occupation]. He worked as [occupation] until 1984 when he began studying at the [College] where he obtained a[qualification]. From 1985 to 1997 he served as [a position] of [a department] at the [organisation]. In mid- 1997 he was appointed [a position] of [another organisation] which was part of [a government agency] in Asmara. He continued to hold this position until his departure for Australia in May 2014, apart from the period between September 2002 and due to June 2005 when he studied at [a university] and obtained a [qualification].

3. The applicant also held a number of positions on organisations [in] Eritrea, [details deleted].

4. During his interview with the delegate the applicant stated that he had joined the ruling PFDJ as this was a required by his employment.

5. According to information on his application and passport he visited [Country 3] from February to April 2006 to undertake training; travelled to [Country 4] in May 2008 to participate in [a conference] and visited to [Country 5] in April 2013 and [Country 6] in May 2013 for training.  This appears to be confirmed by stamps in his passport which also indicates that he was granted exit visas from Eritrea on each occasion

6. According to a handwritten note on his form, which he appears to have written and signed,

   CONSIDERATION OF THE CLAIMS AND EVIDENCE

7. The applicant claims to the fears serious or significant harm including their abduction detention and torture if he returns to Eritrea because of his [ethnicity] and because he is viewed as an opponent of the current regime. He also fears that his status as a failed asylum seeker will place him at risk of serious harm if he returns to his homeland.

8. The applicant’s claims are set out in some detail in written and oral submissions to the Department and written submissions to the Tribunal. After carefully reading the applicant’s written submissions and listening to the recording of his interview with the delegate, I have a number of doubts about the credibility of some of his claims.

9. For example, he claims that he was one of the founders of [an organisation]. He claims that it was difficult to establish the group because the government was very suspicious of such organisations but eventually they were able to register with the [government agency].  He claims that the cultural wing of the PF DJ interpreted [the work of the organisation as] being against nationalism and that he was assaulted and beaten because of his involvement with the group. This is at odds with independent information about [the organisation]. According to a paper on the group published in 2006[1], the group was founded in December 1994 by former EPLF [members] while the applicant became a supporter 1995, after the group was granted official permission to operate. It describes the applicant as a former member of an EPLF [organisation]. It states that the group was established with support from the government and contains no suggestion that group had any problems with the government or that the authorities viewed it with suspicion.

   [1] [Source deleted].

10. More significantly, I found the applicant’s evidence regarding his more recent political activities was confused and unconvincing.  In his written submissions to the Department the applicant claimed that he knew many high ranking officials in Eritrea with whom he discussed the political situation in Eritrea and the countries relationship with Ethiopia and the West. However, when this issue was discussed during his interview with the department he failed to provide a coherent explanation of the contents of these brochures or how they were distributed. When asked about his membership of opposition groups he claimed to belong to some kind of opposition group within the government and also claimed to belong to an underground movement which met in small groups.

11. I also note that the applicant’s education, employment and ability to obtain an exit permit and travel abroad on several occasions are suggestive of someone who was trusted by the authorities rather than than someone viewed as a current or potential dissident. I also note that he appears to be a former EPLF member and according to his own evidence was a member of the PFDJ at the time he left Eritrea.

12. However, on 21 August 2017 the applicant provided evidence from a several Eritrean refugees who knew him prior in the past who have supported some of his claims. For example the claim that he wrote articles critical of the government, albeit during a time when there was more freedom of expression in Eritrea. One is from a former colleague who states that the applicant was viewed with some disfavour at [a government agency] because he was not sufficiently supportive of government policies.

13. The submission from the applicant’s former colleague also states because he failed to return to his government position within the required timeframe he will be seen as a defector which is viewed as a serious matter in Eritrea.

14. In light of these submissions, while I remain sceptical of many of the applicant’s claims and do not accept that he was of significant adverse interest to the Eritrean government at the time he left his homeland, I am prepared to give him the benefit of the doubt and accept that he was publicly critical of some government policies at a time when there was greater freedom to do so, that he has also been critical or resistant to some practices at his work place in the past and that he genuinely opposes the current government.

15. It is generally accepted that Eritrea is an authoritarian state which does not tolerate dissent. In their 2017 Country Information Report on Eritrea dated 8 February 2017 DFAT assessed that anyone who openly opposed the government or sought to blame the government or President for the difficult economic situation in the country or sought to establish and independent organisation of any kind would face a high risk of official discrimination including possible arrest and imprisonment.

16. There are differing opinions on the attitude of the Eritrean government towards Eritreans who leave the country illegally or return as failed asylum seekers and their likely treatment on return. Some reports[2] suggest that anyone who leaves illegally or who returns as a failed asylum seeker is almost certain to face serious harm. Others are of the view that illegal departure or time spent abroad alone will not result in imprisonment or other serious harm provided the person concerned had not left to avoid conscription or been involved in political activities and they have paid a 2 % tax imposed on Eritreans living abroad. They note evidence that large numbers of Eritreans who left the country illegally and sought asylum abroad return regularly to Eritrea which suggests many in the diaspora are confident they will not be subjected to ill-treatment.[3]  A June 2016 report by the Swiss Ministry of Immigration found that voluntary returnees who had regularised their relationship with the Eritrean authorities prior to returning were not likely to face problems, but noted that there was no legal certainty for this group and little information regarding the treatment of those forcibly returned.[4]

    [2] See for example, the UN Commission of Inquiry 2015 Report.

    [3] See DFAT Country Information Report Eritrea  8 February 2017 pp 28 & 29

    [4] See DFAT p 29

17. In the applicant’s case he did not leave the country illegally, failed to return within the period specified on his exit permit which also appears to be a breach of Eritrean law. It is highly likely that he will be suspected of applying for protection as this is commonly done by Eritreans who flee to western countries. I have been unable to locate any information which deals specifically with the situation of those who fail to return within the time specified on their exit permit and seek asylum abroad, but it seems reasonable to assume that it would be viewed in a similar light as cases involving illegal departure. It is also plausible that someone such as the applicant who was a reasonably senior public servant and a member of the PDFJ would face more serious consequences for his actions than an ordinary citizen in whom the government had invested less in terms of training and trust. Furthermore, as noted above, I accept that the applicant has been critical of some government policies in the past. Given the nature of the Eritrean government it is likely that this would have been recorded and it is also possible this combined with his reputation for being not always supportive of the government policies at his work place and his failure to return within the time specified on his exit permit this could result in him being labelled a dissident.

18. In the circumstances set out above I am unable to dismiss the possibility that the applicant will be viewed as a dissident and face imprisonment on return to Eritrea as a remote or insubstantial possibility. I am therefore satisfied that he faces a real chance of experiencing serious harm amounting to persecution if he returns to Eritrea now or in the reasonably foreseeable future and find that he has a well-founded fear of persecution in Eritrea for reasons of political opinion.

    CONCLUDING PARAGRAPHS

19. 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

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

    Roslyn Smidt
    Member