1607109 (Refugee)

[2020] AATA 2571

1607109 (Refugee) [2020] AATA 2571 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607109

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Christine Cody

DATE:29 June 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the directions that:

· the applicant satisfies s.36(2)(a) of the Migration Act;

· the grant of the visa is not prevented by s.91WA of the Migration Act.

Statement made on 29 June 2020 at 8:38pm

CATCHWORDS

REFUGEE – Protection Visa – Ethiopia – race – Sunni Muslim of Ogaden ethnicity – membership of a particular social group – victim of domestic violence – elderly female and without family support – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 91WA ,424A, 437

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559
MIMAC v SZRHU (2013) 215 FCR 35
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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. The applicant claims to be a citizen of Ethiopia. She is aged [age] years. She arrived in Australia [in] October 2014 under a Visitor – Sponsored Family FA600 visa. That visa was due to expire 12 months after her arrival. The applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act) a few days prior to the expiry of her tourist visa, on 7 October 2015[1]. A delegate of the Minister for Immigration refused to grant the visa on 20 April 2016 as many of her claims were not accepted.

   [1] The letter accompanying the application form is stamped as received on 7 October 2015, although the delegate’s decision record refers to the application being lodged on 15 October 2015.

2. This is an application for review of the delegate’s decision. The relevant law is set out in Annexures A and B.

3. The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. Despite significant concerns as to the applicant’s credibility, and that of her witnesses, for the following reasons, the Tribunal has concluded that the decision under review should be remitted.

   The Department

   Submissions and application forms

4. The agent’s brief submissions accompanying the application forms noted that since the applicant’s arrival in Australia [in] October 2014, she had been staying with her daughter, [Ms A], and her son-in-law and their children. Her reason for making a protection visa application was that she fears persecution on the basis of her race, religion and membership of a particular social group, being an Ogadenian Muslim woman who had no say in her husband entering into a polygamous marriage and has subsequently suffered domestic violence.  She is unwilling or unable to avail herself of the protection of that country. She also faces a real risk of suffering significant harm.

5. Documents provided included the applicant’s protection visa application forms, a copy of her passport, and the visitor visa grant notice[2]. The applicant’s background and claims as set out in the application forms can be summarised as follows:

   [2] Showing that she made an application for a sponsored visitor visa on 18 June 2014, sponsored by her daughter, and it was granted on 29 August 2014, valid for 12 months after date of arrival.

   • The applicant was born in the “countryside around Jijiga”, Ogadenia, Ethiopia. The applicant speaks Somali (she does not read and write in any language or speak any other language). The applicant is a Sunni Muslim of Ogaden ethnicity. The applicant has never attended school and lists no prior work experience (whether in self-employment or other employment). Her occupation is stated to be home duties.
   • The applicant married in 1975, and separated from her husband [Mr B] [in] June 2010 in Jijiga. While [Ms A] lives in Australia, the applicant is unaware of where her other children live: a son born [date] in Ethiopia, and a daughter born [date] in Ethiopia, both of whom are married.
   • Her daughter’s husband is from Hargeisa, Somalia and is now an Australian citizen.
   • The applicant lists three addresses in Ethiopia that she had lived in since 1985, all within an area [address deleted], Jijiga. She lived in the same house from 1985-1993; a house near the school from 1993-1995; and then she moved [number] houses away (next to the school) from 1995 until October 2014 (when she left for Australia).
   • The applicant has not been to any other country other than Ethiopia, except that she crossed the border into Somalia around 10 times over the last 30 years to purchase items and she “always returned to Ethiopia on the same day”[3].

   [3] The answer to question 85 records that she has spent all of her life in Ethiopia, and question 81 records her day trips to Somalia.

   • The applicant separated from her husband five years ago [about 2010] when she discovered that he had a second wife. He ordered the applicant to leave the house, but she refused. The husband severely physically abused the applicant, and, in the middle of 2010, her neighbours called an elder, who told her husband to leave the house.
   • The applicant’s husband has harmed her at least eight times since their separation. On one occasion, the applicant went to use the outhouse and was attacked by her husband wielding a stick, injuring the [applicant]. She was screaming; people heard and came, and he ran away. The people took the applicant to hospital. She only stayed for an hour because she could not afford to stay longer. She went to the chemist every day for one month to receive treatment for her injuries.
   • On another occasion when the applicant was at a shop buying fruit, her husband saw her and started screaming at her and tried to grab her. The other people at the shop stopped the husband.
   • About 10 months before she left for Australia [in about December 2013] her husband broke into the applicant’s house during the night to kill her. He grabbed the applicant by the throat, saying that he wanted her to die and would kill her. Another woman sleeping in the house awoke and scared the husband off. Following this incident, the applicant slept in different places every night, for the next 10 months, fearing that she would be murdered. If her neighbours saw him coming they warned her, so that she could hide.
   • The local chief told the husband that if the applicant could rent another property, then he could leave her alone. Her husband did not agree and told the chief that he was going to kill the applicant.
   • Although the local chief is aware of her problem, he does not take matters to the police because they would not do anything to her husband because he is a man. All that the local chief would do would be the same as when another woman was murdered by her husband; he just ordered the husband to pay money to the wife’s family.
   • She cannot seek police protection because the local police will not get involved, they will only extort money from the applicant and her husband.
   • She applied for her passport (in person) and she returned after seven days to collect it. She left Ethiopia legally using her passport issued [in] 2014, arriving in Australia (1[October] 2014).
   • She cannot relocate, as she only speaks Somali; she is not educated, but her husband is educated and can speak other languages. If she moved to another area of Ethiopia, she would have to stay with the Ogadenian people who speak Somali so that she could live and communicate. But it would be unlike her current situation, because her current neighbours know her history and they warn her when her husband is around; if she moved, she would not receive any warnings.
   • She has never remarried. She is the youngest of her siblings and the rest have all passed away. She has no protection.
   • She fears being killed by her husband upon her return to Ethiopia. She was in contact with one of her neighbours soon after arriving in Australia, who told her that her husband had been asking when she would come back.

   The interview

6. The applicant attended an interview with the delegate on 18 January 2016. Part of the evidence given at the interview was set out in the delegate’s decision (provided to the Tribunal by the applicant) and is set out below (with some additional evidence not recorded in the decision record):

   ·Her husband is not happy that her quality of life is better than his, and he does not want to see her happy.

   ·Her husband told her to leave the house after she found out about the other woman. She refused, and this is what started the problems.

   ·The chief of the village told her to relocate so that the husband would leave her alone, but despite leaving the home her husband continued to harm her. Although this indicated that she was the one who left the family home, her evidence was different later in the interview: she said her husband moved to the city, indicating that he left the family home. Later, however, she indicated that she rented somewhere else away from the family home, indicating that she left the family home. She also claimed that she had lived by herself in her own house which she had built after the separation: she got some money from her daughter in Australia and bought/built her own home. Her ex-husband helped her financially and did physical labour for the building. She did not suspect he was helping in order to claim part ownership. She was under pressure from other people to leave that house as she had no responsibilities, whereas her ex-husband had children with another woman. He has been trying to force her to leave her home by threatening her and attacking her, to get her to leave her house. Her husband kept harming her even after she left her home.She was born in [Ethiopia], in the Highlands. She claimed that she had travelled near Somalia but never travelled into Somalia. When the delegate put to her that her application form stated that she has been on day trips to Somalia, she changed her evidence and said that she had been on the other side of the border but not beyond it into Somalia. She said that no paperwork was needed, you just go into Somalia and return. She also said that she crossed the border to Somalia to get her Australian visa.

   ·The applicant states that she has not seen or heard from her two children in Ethiopia as they ran away many years ago. She has had no contact with them for five years.  In the interview, the applicant does not specify when they ran away, or whether the applicant and her husband separated before or after that.

7. Other information at interview is referred to below when relevant.

8. The Departmental file contained a copy of the Departmental file relating to the applicant’s visitor visa application, which included her application form, birth certificates for her [Ms A]’s children (each of which showed that the applicant’s daughter was born in Hargeisa, Somalia), and other supporting documents.

9. There is a non-disclosure certificate on file stated to have been issued pursuant to s.437 of the Act. This relates to folios 39, 93 – 95, 101 – 102, and 109. Although it states that the folios must not be given to the AAT, on the basis that releasing the information would prejudice the security, defence, or international relations of Australia, the folios were in fact provided to the Tribunal. The Tribunal notes that the folios relate to an application and identification checklist, a decision regarding the visitor visa application, an email that the applicant’s agent had sent to the Department relating to the visitor visa application (it is difficult to see how this should be withheld from the applicant), and internal emails regarding FOI. The Tribunal has concerns about the validity of the certificate however it notes that the information is not relevant to its decision. 

   Natural justice letter and response

10. On 19 January 2016 the delegate sent a natural justice letter to the applicant expressing concerns about the contents of her sponsored visitor visa application form which indicated that, contrary to her protection visa application claims, she was not separated or divorced from her husband but indeed at the time was living with her husband and her children in Ethiopia.

11. On 11 March 2016 submissions were provided by the agent indicating that the inconsistencies were explicable. Two statutory declarations were provided:

    ·             The first from the applicant[4]. She claimed that she had omitted to record an address in her protection visa application form (stating that from 2009 until October 2014 she lived in a further residence at [address deleted], Jijiga). Given her claim in her application form that she that she separated from her husband [in] June 2010, not 2009, this would indicate that she and her husband moved house together, one year before they separated, and then she remained living in the same home until she left for Australia. This is contrary to much of her evidence at interview to the effect that her husband forced her out of the house, as he wanted to, but he still would not leave her alone. The applicant did not offer any explanation as to why her statutory declaration contradicted one of the versions of events offered at interview. She also claimed that she was not asked whether she lived with anybody when she was applying for her visitor visa [indicating that it was a false assumption that she was still living with her husband and two children].

    ·             The second declaration is from the applicant’s son-in-law. He states that he arranged for the visitor visa application for his mother-in-law as his wife was very sick and couldn’t do so. He stated that he did not know of the applicant’s situation until she came to Australia, and that he was never asked if the applicant lived with anyone else during the visitor visa application.

    [4] She also corrected an error in her protection visa application where the [grandchildren] had been accidentally referred to as her nephews, but they were her grandchildren.

12. The agent also provided photos of the applicant’s scars (said to have been inflicted by the husband), country information relating to women, domestic violence and state protection dated between 2006-2013.

    The delegate’s decision record

13. The delegate accepted that the applicant was a national of Ethiopia, she was married to [Mr B] and that she is an ethnic Somali called Ogaden. It was accepted that domestic violence is a prevalent problem for women in Ethiopia. The delegate did not consider, however, that she was a credible witness.

14. The delegate noted that the primary cause of the husband’s hostility was that he wanted her out of the house; and it was her evidence that she said that she did what he requested. The delegate considered that the motivation for the hostility was no longer evident. Further, he considered that her account at interview was not consistent with her written information and statements. She claimed that her husband moved to the city and helped her build her house, which behaviour the delegate considered not consistent with a person who meant to seriously harm the applicant since the claimed separation.

15. The delegate considered that she made unconvincing and inconsistent claims and was not satisfied as to her credibility or the veracity of her claims. The delegate did not accept that she separated from her husband before departing from Ethiopia, nor that she was subjected to domestic violence by her husband, nor that she has a subjective fear of harm or mistreatment for this reason.

16. The delegate did not accept that the visitor visa application form was incorrectly completed (and that the family in Australia did not know about the applicant’s claimed dire circumstances in Ethiopia).  The delegate considered that if the applicant’s daughter had been speaking with her siblings, then they would have mentioned that their mother had left home and moved away from their father and that he had moved in with another woman. The delegate found it implausible that no hint or mention of her dire situation was conveyed to the daughter and son-in-law in Australia, given the claim that the applicant’s marriage has been volatile with incidents of assault since 2010. The delegate considered likely that the daughter would have been knowledgeable on the situation with her mother if that situation were true. The delegate was not prepared to accept that the sponsoring daughter and son-in-law were not aware of the applicant’s claimed life and circumstances in Ethiopia. The delegate noted that the overseas office was satisfied that the applicant had family ties in her home country, being an incentive to return, having regard to the visitor visa form, which stated that the applicant was married with a husband and two children.

17. The delegate referred to the photos of old scars which had been observed by a doctor in Australia, who noted in a report of [July] 2015 that she had a scar on her [various body parts]. The delegate accepted that she had scarring but was not satisfied as to the cause of each of these marks. It was noted that the doctor merely labelled the photos and gives no witness to the fact that he observed them after an assault. The delegate only gives weight to the labelling of the photos as objective observations of body markings.

18. The delegate considered that her claims were not consistent, coherent or plausible. The delegate did not accept that she feared harm for the reasons claimed nor that her claims for protection are credible.

19. A further concern was that it was noted that she arrived in Australia in a visitor visa [in] October 2014 but did not claim protection until one year later, on 15 October 2015. The delegate was concerned with her “substantial delay in seeking protection” and made reference to caselaw where it was noted that even a three month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or the depth of an applicant’s fear of persecution[5].  

    [5] Subramaniam v MIMA (1998) VG310 of 1997; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347.

    The Tribunal

20. The applicant provided a copy of the delegate’s decision record to the Tribunal. She also provided a copy of her passport. She was still represented by her registered migration agent. The Tribunal held two hearings.  The first hearing was on 29 May 2019 and the applicant, her daughter Ms [A], her son-in-[law], and her grandson [attended]. Her agent also attended. The applicant brought her passport to the hearing. The hearing was not completed on that date as there were four witnesses. The hearing was scheduled to resume on 24 July 2019[6].  The Tribunal requested, in the new hearing invitation, that statements from all witnesses the applicant sought to call, as well as all documents she sought to rely upon (including in relation to the applicant’s nationality) be forwarded to the Tribunal by 17 July 2019. No response was received, and no such statements were provided.

    [6] It had initially been 25 July 2019.

21. The day before the second hearing, on 23 July 2019, the Tribunal received a letter from the agent stating that the applicant had received a possible diagnosis of [Medical condition 1], which may lead to her being considered as a vulnerable person at hearing. This letter attached a letter from her GP [dated] 18 July 2019, which states that the applicant [has specified symptoms], she is “forgetful lately” and it is queried as to whether she may have [Medical condition 1].

22. On 24 July 2019 the second hearing was attended by the applicant, her agent and her daughter; the other witnesses did not attend.

23. On 15 May 2020 the Tribunal wrote to the applicant apologising for the delay in sending its s.424A letter, indicating that it would be provided shortly. The Tribunal sent a s.424A letter on 5 June 2020 containing nine pages of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review (subject to any response). On 19 June 2020 the agent forwarded a response which she stated was completed by the daughter as the applicant is not able to respond on her own behalf due to “forgetfulness”. Although it appears that since July 2019 the applicant has taken some medication for [Medical condition 1] and has had tests/consultations, there is no diagnosis as to any mental health condition and as to how this may have affected her claims made in her protection visa application (2015), her interview (2016) or her Tribunal hearings (2019); nor is there any diagnosis of [Medical condition 1]. A letter from a GP at a medical centre dated 13 June 2020 stated that she was diagnosed with [Medical condition 1] in 2019. She suffers from [medical conditions] and “forgetfulness under investigation”. She is awaiting assessment at [a hospital].

1. The Tribunal has considered whether the inconsistencies below can be explained by forgetfulness; however, the Tribunal notes that the issue of forgetfulness was not raised until after the first hearing, at which time significant inconsistencies in the applicant’s evidence were raised. The inconsistencies have occurred at each stage that she has put forward her claims, and not only are there inconsistencies and changing evidence from the applicant, there are also inconsistencies with her supporting witnesses.  The Tribunal is not prepared to accept that the applicant’s claimed forgetfulness can explain the difficulties with the evidence, some of which are described below. 

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS

   Credibility

2. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well‑founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

3. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

4. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).

5. The Tribunal had significant concerns with the claims and evidence provided.

6. Firstly, the Tribunal was concerned that the applicant was not honest in the protection visa proceedings about where she lived in Ethiopia since she claimed to have separated from her husband:

   ·At the delegate’s interview she said that her husband left her and went to the city, whereas she lived in the village where she built a house after the separation. This evidence also changed, as referred to above.

   ·In her protection visa application form, she specified one single address from July 1995 until October 2014, which indicates that there was no change in her address and that she did not leave the marital home. Her claims at this stage also indicated that she stayed in the family home. This, however, was inconsistent with her daughter’s evidence. Her daughter told the Tribunal that her father (the applicant’s husband) made the applicant leave the family home when he took another wife and that he rented another property for her to live in, which is where she lived until she came to Australia.

   ·The applicant’s post-interview statutory declaration claimed, as noted above, that she had omitted to declare in her protection visa application that she had moved to a new home (also in Jijiga) in 2009, where she lived until 2014. However, this move actually occurred before her claimed separation, not at the time, or afterwards.  

   ·The applicant told the Tribunal something completely different. She said that for the last 12 years before coming to Australia, she lived in the same flat in the city. She used to live there with her husband until he ran away (in about 2011) and married another wife. This evidence is inconsistent with: her daughter’s evidence, her own evidence at interview that she left the house due to pressure from her husband but he still harassed and attacked her, her post-interview statutory declaration and her agent’s submissions (that it was the applicant who had left her husband).

   ·             The Tribunal was concerned that the applicant’s evidence also changed as to whether she was living in the village or in the city. In the interview she had said that she lived in the village and that her husband had moved to the city and she built her house in the village. This, however, was inconsistent with the evidence she had given to the Tribunal, namely that she was living in the city, not in the village. Her explanation for this changing evidence is that the city and village are attached and not far from each other, so she had said (wrongly) that she lived in the city because they are joined. The Tribunal is not satisfied with this explanation.

7. The s.424A response from the daughter was that the applicant is an old woman and cannot remember anything. When “the problem” happened, she used to move from place to place to save her life from her ex-husband. The Tribunal does not accept this explanation, noting for example that she specifically told the Tribunal that she had lived in the same place in the city for 12 years. The evidence is so changing and so different, not just throughout different times when the applicant has been giving her account, but also when her daughter gave evidence. The Tribunal considers that the evidence provided in the protection visa application process about where the applicant lived since at least 2010 when she claims to have separated from her husband has been inconsistent and untruthful.  

8. Secondly, the Tribunal was concerned with the applicant’s claims that her husband assaulted her after they separated.  The concerns arise as a result of plausibility issues, as well as the different claimed reasons as to why he started to assault her after they separated, as well as inconsistent evidence as to whether or not the applicant told her daughter in Australia about this, which was linked to further inconsistent evidence as to whether or not the visitor visa application was completed truthfully, and by whom.

9. The applicant gave changing evidence as to when she was subjected to domestic violence. The applicant said that the domestic violence started towards her in 2009, five years before she came to Australia. She said that she and her husband had had disagreements for a long time, but there was no assault until 2009. He came back to her and that was when he assaulted her. She repeated that the first time she was assaulted was in 2009, when he wanted to take away the home that she owned. She then changed her evidence and said no, that was not the first time, he assaulted her in 2001.The Tribunal was concerned that the applicant changed her evidence from saying specifically that she had not been assaulted before 2009 (her new claimed date of separation), to then saying that she was assaulted in 2001.

10. The daughter gave evidence that her father assaulted the applicant about four to five years before she came to Australia. She said that this was because he didn’t want the applicant to live her own life, and because she was living in rented accommodation and the daughter was sending her money. The father thought that the daughter was a wealthy woman sending the applicant money and so he thought that the applicant was better off than him. This, however, is inconsistent with the applicant’s own evidence that she was destitute after her husband left her, and that she had only received one sum of $100 from her daughter over a five year period; she was living on handouts and barely surviving, and this extremely poor and desolate lifestyle lasted five years. It was the applicant’s claim that her husband came to visit her to attack her; if these claims were true then he would have seen that she was indeed destitute and desolate, which is inconsistent with the claims that he was attacking the applicant because he believed that she had a better lifestyle than him because she was receiving money from a wealthy woman, their daughter.   

11. Further, the applicant told the Tribunal that another reason why her husband assaulted her after the separation is because he wanted to take away the home that she had built after the relationship broke down. She claimed, however, that she continued to live at home, and he continued to come and try to murder her at home (for a period of about five years from the separation until she left for Australia). Given her claim that her husband could act with impunity, knew where she was living, had gained access to her on numerous occasions, and wanted to murder her, it was difficult to accept that he did not manage to do so. When this was put to the applicant, she explained that she had run away from him. The Tribunal does not find this persuasive and considers that if the situation and circumstances were as claimed, that is, if he wanted to kill her during a five-year period, he could have done so. Further, the claim that she was still living at home while being targeted by her husband is inconsistent with her daughter’s claim that the applicant had been thrown out of the house by her husband, which is why the daughter was paying rent for her mother who was living in a rental property. The Tribunal considers that her evidence undermines her credibility.

12. The Tribunal had concerns with the applicant’s changing evidence as to whether her daughter knew about the domestic violence (over a five-year period) while the applicant was still in Ethiopia. The applicant initially told the Tribunal that the reason why her daughter sent her the sum of $100 in 2009 was because her daughter was aware that the applicant had suffered domestic violence. She then changed her evidence and said that her daughter didn’t know about the domestic violence, as she was hiding it from her. Her daughter, however, told the Tribunal that she was aware, when her mother was in Ethiopia, that she was being targeted and attacked by her husband. This directly undermines the applicant’s claims that her daughter did not know about the domestic violence she was experiencing. Similarly, the Tribunal was concerned that the applicant gave changing evidence as to why she claimed that she didn’t tell her daughter that she was separated from her husband.  Initially she told the Tribunal that this was because her daughter was so sick that she had to hide things from her. The Tribunal noted, however, that her daughter was not sick in 2009/2010 when she separated from her husband. The applicant was silent. When the Tribunal repeated its question, the applicant then changed her evidence and agreed that her daughter was not sick then. She then said that her daughter was far away, so the applicant didn’t bother her about the things she was suffering. Given the claim that her daughter was paying her rent so that she could live apart from her husband, the Tribunal is not prepared to accept this explanation. The Tribunal considers the above undermines her credibility and her claims to have suffered domestic violence.  

13. The Tribunal put to the daughter its concern that if she knew her mother was being beaten up, including to the extent that she had to go to hospital, and that this had been occurring since the separation, it did not understand why she did not organise a visitor visa earlier for her mother. In response, the daughter said that they did not have any money to bring her out. The Tribunal notes, however, the claim that they had sent $[amount] to her mother to build a house, and that they continued to send her money thereafter. The Tribunal considers that if her mother’s life was at risk as claimed, and if her daughter was aware that her mother had been assaulted on numerous occasions from her father and was at risk, then she would have taken all possible steps to bring her mother to Australia earlier. It notes that the daughter claimed that she and her husband used community support to raise funds to bring her mother out when the daughter was sick; the Tribunal considers that if she and her husband were so resourceful when the daughter was sick, they could have been resourceful when her mother’s life was at risk, suffering ongoing attacks, with no protection. The Tribunal does not accept the daughter’s explanation and considers that her evidence undermines the claimed assaults experienced by the applicant.  The Tribunal has taken into account the response to the s.424A letter, which was that her daughter did know of the damages to her mother’s body and some of the domestic violence while her mother was in Ethiopia, but she did not know about all of it. This remains contrary to the applicant’s claims that her daughter knew nothing about the domestic violence (or separation) when she was in Ethiopia.  

14. The Tribunal was also concerned with the visitor visa application, because the claim that the applicant was separated from and being assaulted by her former husband, was contradicted by the information contained in that application form. In the applicant’s visitor visa form lodged 18 June 2014, despite having a number of choices to describe her relationship status (such as separated or divorced), she selected that she was “married”. When asked about her current situation, she responded “living with my family”. She stated that the family members not travelling to Australia with her were her husband and two children, [all] three of whom were contactable via the same address in Jijiga Ethiopia. The applicant’s daughter and son-in-law gave inconsistent evidence as to how the visitor visa application form was completed. Her son-in-law provided a statutory declaration sworn 11 March 2016 claiming that he arranged the visa application when his wife (the daughter) was in hospital; she was sick and couldn’t speak, he couldn’t ask her any information about the applicant’s circumstances, so he filled in the information to the extent of his knowledge. Contrary to her husband’s statutory declaration, the daughter told the Tribunal that she was the one who completed the visitor visa forms for her mother, which stated that the applicant and her father were married and living as a family with the two children. This caused the Tribunal concern when having regard to the daughter’s own evidence that she was well aware that the applicant was not living with her father; he had assaulted her mother, he had evicted her, and the daughter was paying the applicant’s rent after the separation. The Tribunal was further concerned with the daughter’s credibility noting that when she completed the s.424A response on behalf of her mother, she asserted that she did not know her parents were not living together. This is in stark contrast to her evidence to the Tribunal that her father had thrown her mother out and that the daughter was paying her mother’s rent after her father did not pay her rent as he had promised. The daughter’s evidence from the first hearing changed by the time she responded to the s.424A letter on behalf of her mother, which undermines her credibility. These changes in the daughter’s evidence occurred after it was pointed out to her that her husband’s 2016 statutory declaration had made the claim that when the applicant arrived in Australia, she told him that she had not told the daughter about what was happening with her husband or that they had been living in different houses; she had not mentioned it to her daughter as she was embarrassed and did not want to worry her.

15. Thirdly, the Tribunal was concerned that the applicant was not honest about, and continually sought to minimise, her financial situation in Ethiopia. For example, she claimed that she was destitute, that she had no access to money except for small handouts from neighbours, and that her daughter in Australia could not afford to send her any money, so she only ever sent the applicant one single sum of $100 from 2009 until she left Ethiopia in 2014 (and prior to 2009 she had only ever sent $50 on three or four occasions). This was inconsistent with:

    ·             Her own evidence at the delegate’s interview that her daughter had sent her $[amount] to build a house after she had separated from her husband;

    ·             Her daughter’s evidence, which was that between 2009 and 2014 she sent the applicant money even when she herself was not working; the money came from her household (her husband’s salary). She would send $[amount], and just before the applicant came to Australia, she also sent $[amount]; and

    ·             Her daughter’s evidence that when her father had forced her mother to move out of the family home into another property, he did not pay the rent despite his agreement to do so, and thus the daughter paid her rent. 

16. The Tribunal put to the applicant that she said at interview that the children gave her $[amount]; this was after the separation, so it does not understand why she said to the Tribunal that she had only ever received $100 from her daughter after the separation. The applicant then said that she “forgot about” this house that she built after separation. While the Tribunal notes that the claim was made after this evidence that the applicant is forgetful, it is not prepared to accept that the applicant, who claimed she was completely destitute, had forgotten about money she had used to build a house after she had separated from her husband. The Tribunal notes that the applicant was given a number of opportunities to explain how much money she had received from her daughter in Australia, yet she kept insisting that her daughter was poor and had given her almost no money. The Tribunal considers that if the applicant could recall receiving $100 in 2009 plus $50 here and there before that time, she would be able to recall a much larger contribution of $[amount] received after the separation at a time when she insisted she had no other source of money.

17. Fourthly, the Tribunal had concerns that the applicant was not a truthful witness generally about her background: In this regard, the applicant insisted, although she was questioned a number of times, that she had never lived in Somalia. The applicant told the Tribunal that apart from coming to Australia, she had never been out of Ethiopia. The Tribunal then asked her whether she had ever left Ethiopia for a day? She said she has only travelled to Addis Ababa. The Tribunal again asked whether she had ever left Ethiopia, even for a day, and she said that she only went to the countryside in Ethiopia, and not to any other territory. This, however, was inconsistent, as put to the applicant, with her application form, where she claimed that she went to Somalia 10 times in the last 30 years. She said that was a long time ago when she used to buy goods, but they were not living in Somalia.

18. The applicant then gave further evidence, which was inconsistent with other evidence. The Tribunal asked whether she has only ever bought goods and then returned home; it asked for confirmation that she has never in her entire life done anything else in Somalia, and she said that is correct, she has only ever travelled to Somalia to buy clothes. The Tribunal asked where [Ms A] was born, and she said Jijiga.

19. The Tribunal also noted that her protection visa application recorded that her daughter was born in Somalia. It asked whether this was a mistake, and she said that she thinks that it is wrong information that is written there. The Tribunal then put to her that the documents that her daughter had provided, including her daughter’s children’s birth certificates, all indicate that her daughter was born in Hargeisa in Somalia, not in Ethiopia. In response, the applicant said that her daughter was born in Ethiopia and that the birth certificates contain the wrong information. This insistence, however, that the above information was wrong, was contradicted by her own daughter’s evidence given at the first hearing. Her daughter told the Tribunal that the applicant was born in Somalia, and she herself was also was born in Somalia (in [year]), and that the whole family lived there until 1999 (when the daughter was aged [age] years), at which stage the applicant and her husband and the other two children moved to Ethiopia.

1. At the second hearing, the Tribunal asked the applicant about how she applied for her passport. She said that she went to apply in person. The Tribunal noted that her passport says she was born in [City 1] in Ethiopia; she agreed. The Tribunal put to her that her daughter had said that she was born in Somalia. She said that she was born in [City 1] in Ethiopia but when she was [age] old her grandmother took her to Somalia, in [City 2], and they lived there.

2. The Tribunal put to her that she had insisted, throughout the application (and interview with the delegate) and at the first hearing with the Tribunal, that she lived in Ethiopia not Somalia, and that it was a mistake that the birth certificates of her daughter’s children recorded that her daughter was born in Somalia. The Tribunal put that she was now admitting that she had lived in Somalia; and that her changing evidence was of concern to the Tribunal. She responded that she was born in Ethiopia but lived in Somalia from when she was [age]. When the Tribunal asked why she insisted that she did not ever reside in Somalia, she said that she was not thinking properly, she was thinking only of her passport. The Tribunal does not accept this explanation, noting that it had not only asked her about her passport at the first hearing; she had been asked where she lived, and she had insisted that she lived in Ethiopia not Somalia. The applicant said that she made a mistake; she lived in different places; she said she lived in [City 2] and then went to Hargeisa. She then said that when her grandmother took her to Somalia, she was raised in [City 2] and she was like a native Somalian. She left Somalia when she was an adult, but she does not know her age at that time.

3. The Tribunal considered that the applicant’s changing evidence as to whether she spent time living in Somalia undermined her credibility. The Tribunal does not accept her explanations for her changing evidence. The Tribunal considered that the daughter’s evidence was consistent, coherent, honest and forthright when she was discussing her own place of birth, and that she and her family lived in Somalia until she was [age] years of age. This evidence completely undermined the applicant’s initial evidence, and the Tribunal considers that the applicant only changed her evidence when confronted with her daughter’s evidence. 

4. The inconsistent evidence as to where the applicant lived during her life, whether she spent any time in Somalia, and where her children were born, was put to her pursuant to s.424A of the Act. The response included that people who live in these areas [are] all Somalis. There was tension between the two countries and their people were affected by this. They would move back and forth across the border, from one place to another. The Tribunal, as discussed below, is prepared to accept this. The Tribunal is not, however, prepared to accept that this is an explanation for the applicant’s untruthful and changing evidence as to whether she had ever been to or spent time in Somalia. The Tribunal considers that this undermines her credibility. 

5. Fifthly, the Tribunal had concerns about the evidence in relation to her children, whom the applicant claimed had run away. The Tribunal considers that the evidence, while difficult to comprehend, suggests that the siblings do not and did not exist, and that they were fabricated for the purpose of the visitor visa application to suggest that the applicant had ties in Ethiopia and would return there after her visit to her daughter. The concerning evidence about these children includes:

   ·At hearing the applicant claimed that the children left seven years earlier [in about 2012] and at that time they were aged over [age] and over [age] years [which would mean they were born around [year] and [year]]. However, in her visitor visa application form and in her protection visa application form, she said they were born in [year] and [year]. Differently again, the daughter gave evidence that she was born in [year] and the two other children were about two and three years older than her [thus born in about [year] and[year]. Although the applicant claims that she is not educated or literate, the Tribunal notes that she was not able to provide a satisfactory explanation for serious inconsistencies as to the ages of her claimed two other children.

   ·The applicant’s evidence at the first hearing, namely her denials about spending any real time in Somalia, meant that all three of her claimed children had to have been born in Ethiopia. Her protection visa application, however, stated that her daughter [Ms A] was born in Somalia, but her other two children were born in Ethiopia. However, the applicant gave different evidence at the second hearing; she then claimed that these other two children were also born in Somalia which was inconsistent with her application form.

   ·The daughter claimed that the only reason the children left [10 years ago in about 2009] was because they were looking for a better life financially as they could not get jobs. As to when they left, the daughter’s evidence is inconsistent with the applicant’s evidence. The reason (that is, that they left only because of financial reasons) is also inconsistent with the applicant’s evidence, as she claimed that the reason why the children left was because of the domestic violence from her husband (after the separation) and for money reasons.

6. The Tribunal is not prepared to accept any of the explanations received for the evidence about these two other children, which is so inconsistent. It considers that this evidence undermines the applicant’s credibility, and that of her daughter.

7. Finally, the applicant told the delegate at interview that there was nothing in her application form which was false or misleading. The Tribunal does not accept this assertion, given the significantly changing evidence that has been provided about the applicant’s circumstances in Ethiopia. The Tribunal has found many of her claims to be untrue, and that this was another instance where she was prepared to misrepresent her situation in order to obtain a visa outcome.

8. Summary of credibility: Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility, as discussed above, lead the Tribunal to conclude that the applicant is not a witness of truth as to many past events in Ethiopia (and Somalia) upon which she has based her protection claims.

9. The Tribunal considers that the applicant and her witnesses have been prepared to tell numerous untruths in order to achieve a visa outcome for the applicant. While the Tribunal understands that the daughter is very ill with [medical condition 2], and that she and her husband have [young] children, and that as a family they feel overwhelmed and concerned, and that the applicant understandably wants to be with her daughter and offer all the possible love and support that she can, the Tribunal is not impressed with their credibility and is very hesitant to accept their evidence. There is, however, a core of evidence that the Tribunal considers rings true, and that it is prepared to accept, set out below.

   Findings on the applicant’s claims

10. After some deliberation the Tribunal accepts the applicant’s nationality to be Ethiopian (the reasons for this finding are set out below). The Tribunal accepts that the applicant is [an] [age]-year-old Ogadenian (Somalian ethnicity) Muslim woman who was married to [Mr B], and remains married to him. It accepts that her husband entered a polygamous marriage and that she had no say in this.  The Tribunal accepts that polygamous marriages are traditionally acceptable and that the applicant did not consider herself able to object to this. The Tribunal is prepared to accept that this occurred in around 2009/2010, noting that the applicant has been consistent in her claims that it was around this time that she separated. The Tribunal does not, however, accept that the applicant considered she was “separated”, nor does it accept the assertion that she was divorced, noting the contents of the visitor visa application, and the credibility findings generally.

11. Rejection of the applicant’s claims of violence from her husband: The Tribunal is not prepared to accept that the applicant was suddenly subjected to violence from her husband after he took a second wife. In this regard, the Tribunal notes that the applicant had initially claimed that she had experienced no violence through the marriage. While the Tribunal accepts that this does not mean that he did not become violent towards her after taking a second wife, it does not accept that this occurred because the claims about the domestic violence were confusing, changing and not credible. While the Tribunal notes that the applicant produced photographs of scars on her body, the Tribunal has no evidence as to the age of those scars and it notes that the applicant and her family lived near or in conflict areas, and her scars could have been caused by anything. On the basis of her lack of credibility, it does not accept that those scars were caused by her husband’s violence. The Tribunal is prepared to accept that the applicant was relegated to the position of inferior, elderly wife, and that her husband went on to have children with his new, younger wife. The Tribunal considers that the daughter only sought to bring her mother to Australia when she herself became ill, and not earlier, because she did not consider that her mother was in danger, because she was not being assaulted by her husband as claimed, and nor did he seek to murder her after 2009/2010.

12. The Tribunal considered that the evidence about where the applicant lived to be so changing and confusing that it was not credible or reliable. The Tribunal is prepared to accept, however, that her husband did not want her to be in a better position than he and his second wife, and that he was angry that she was receiving some funds from their daughter to support her. The Tribunal considered the evidence of the daughter, that her father no longer speaks to her, to be credible and to support this finding that she had been sending money to support her mother (but not her father). The Tribunal also considered the applicant’s evidence to the delegate, that her husband doesn’t like to see her around and when he does, he gets upset and irritated, to be credible.

13. Lack of support in Ethiopia: While the Tribunal does not accept that her husband was targeting her, it does accept that the applicant’s husband is not prepared to support her. The Tribunal also accepts that the daughter and her husband have [children] to support in Australia, and that her daughter has been very ill [in] Australia. The Tribunal has considered the unfortunate situation that her daughter may die in the reasonably foreseeable future. In that case, the daughter’s husband will be left to raise their [children] alone in Australia, and the Tribunal considers that it is unlikely that he will be in a position to provide ongoing financial support to the applicant, his mother-in-law, in Ethiopia.  This means that it is reasonably foreseeable that the applicant will have no means of support in Ethiopia other than whatever income she herself can earn. While there is no evidence before the Tribunal that she is not able-bodied, the Tribunal accepts that she is [age] years of age and that she has never previously been employed.

14. In this regard, the Tribunal accepts as credible her evidence to the delegate: when he asked how the applicant supported herself in Ethiopia, she said that she lived “rough and tough” but her daughter would send her something every now and then. She had sold [goods], but didn’t get much money, and sometimes she received handouts from people. The Tribunal accepts that the applicant has earned some income through some trade [in] the past, and sometimes crossed the border with Somalia to trade when she was younger. The Tribunal accepts that the applicant is elderly, and it has been five years since she has had to fend for herself in Ethiopia. The Tribunal considers that even if she did own a house, her husband would have taken possession of it in the years that she has been in Australia; it does not accept that she would be in a position to challenge this. The Tribunal does not, however, accept that she built a house in Ethiopia that her husband wanted to take possession of. The Tribunal finds that she will have to organise her own accommodation upon return to Ethiopia. The Tribunal considers it unlikely that the applicant, who is an elderly female with some physical ailments, will be able to realistically earn a regular income to support herself. In this regard, the Tribunal notes the following information sourced from the relevant DFAT Report (28 September 2017):

    ·More than a third of the population lives in extreme poverty (as measured by the World Bank’s international extreme poverty line of $1.90 per day), and around another 40 per cent of the population is clustered just above this poverty line. Most Ethiopians live in rural areas, and approximately 85 per cent of the population is engaged in the agricultural sector, primarily subsistence agriculture. Ethiopia’s continuing reliance on agriculture means the economy remains vulnerable to natural disasters, particularly droughts. The continuing drought has had a significant impact on the wellbeing and livelihoods of the rural population and on Ethiopian food security: continuing drought since 2015 will result in an estimated 15 million people requiring food aid in 2017 and 350,000 people suffering severe acute malnutrition. DFAT assesses that food insecurity, poverty and a lack of economic opportunity are significant ‘push’ factors behind migration from Ethiopia.

    ·Ethnic Somalis live predominantly in the arid Somali region in the south-east of Ethiopia, which borders Somalia (previously known as the Ogaden region). Somalis are Muslim, and mostly pastoralists. They comprise around six per cent of the total Ethiopian population. The Somali region is underdeveloped compared to many other parts of Ethiopia, with poor infrastructure and limited access to government services.

    ·Women typically have fewer employment opportunities than men, in both urban and rural areas. This is influenced by societal discrimination, norms around women’s roles and women’s generally lower levels of educational attainment. Women disproportionately work in the informal sector and in unpaid family work in the home or on the family farm.

15. The most recent US DOS Report on human rights in Ethiopia states that discrimination against women was widespread. It was most acute in rural areas, where an estimated 80 per cent of the population lived. Women’s access to gainful employment, credit, and the opportunity to own or manage a business was limited by their lower levels of educational attainment and by traditional attitudes. Discrimination in employment and occupation occurred with respect to women, who had fewer employment opportunities than did men, and the jobs available did not provide equal pay for equal work. Only a small percentage of the population, concentrated in urban areas, was involved in wage-labor employment. Wages in the informal sector generally were below subsistence levels[7].

    [7] >

    The Tribunal considers that there is a real chance that the applicant will face destitution when she returns to Ethiopia. In coming to this view, the Tribunal has considered whether the applicant does, contrary to her assertions, have any family support in Ethiopia. The Tribunal put to the applicant that the letter produced by a [social] worker dated 14 April 2014 in support of the applicant’s visitor visa application and confirming the daughter’s diagnosis of [medical condition 2], [states] that the daughter wants her mother to come out because “most of her family remain in Somalia and Ethiopia”. The Tribunal said that this indicates that, as her daughter’s mother, she has family in both countries. In response, she said that she has no family back in Ethiopia. She said that her siblings are all dead (she had [siblings] and a mother and uncle, and all her family are deceased). While the Tribunal considers the applicant to be a person of little credibility, it is prepared to accept that even if there were family members in Ethiopia, they did not support her (and it was left to her daughter to support her) when her husband took a new wife, in the last few years that she lived in Ethiopia. In the circumstances, the Tribunal is prepared to accept that she does not have family members in Ethiopia who can provide her with shelter or support. 

16. The Tribunal notes that the applicant claimed to have received support from her neighbours, including emotional support, in that they gave her warnings against her husband, and they allowed her to stay at her place at night for a 10 month period before she came to Australia (which the Tribunal does not accept), and that for about five years they assisted her with small amounts of money and food (which the Tribunal is prepared to accept). When the Tribunal put to the applicant that it appeared that she had very supportive people around her, she said it is Somali culture to help each other, they are a very generous community but they are not relatives and they will not provide long-term assistance for her. The Tribunal has considered whether the neighbours would support the applicant if she returned, however it considers that there is a real chance that they will not be able to support her. In this regard, the Tribunal notes that the conditions for vulnerable Ethiopians have been affected by a number of adverse factors and that such people do not have resilience to the type of current disruptions to their livelihood[8]. Further, those who are elderly, and female, in rural areas, have been found to be particularly vulnerable to the current environmental conditions: the drought has affected men, women, girls and boys in various ways, but the most food-insecure groups currently appear to be elderly people. Female-headed households, elderly women and disabled people were identified as being especially vulnerable. For both women and men, the opportunities for productive income-generating activities such as petty trade, traditional milk processing and selling and the sale of livestock has significantly reduced. Elderly females (>59 years of age) were identified as being vulnerable, as they are increasingly dependent on other household members as traditional support mechanisms are reduced[9].

    [8] According to Reliefweb, East & Horn of Africa: IPC Food Security Phase Classification, Desert Locusts & COVID-19 | 19 May 2020: The East and Horn of Africa region is already home to some of the most food insecure populations in the world. Now, with countries such as Ethiopia, Kenya and Somalia currently facing one of the worst desert locust infestations in decades, coupled with the impacts of COVID-19, experts fear that the health crisis will transform into a food crisis unless global, regional and country level coordinated action is in place to control the economic crisis. The East Africa region’s six infested countries host 25.3 million people facing high levels of acute food insecurity (IPC Phase 3+), which is 28% of the case-load of Africa. In addition, five of the Desert Locust affected countries have 35 million people in Stress (IPC Phase 2). These people do not have resilience for further disruption of their livelihoods, such as lack of economic and physical access to food due to COVID-19 containment measures: Joint Agency Consolidated Analysis: Consolidated Gender Analysis for the Ethiopian drought response, July 2016 type="1">

17. The effect of the applicant’s gender: The DFAT Report states that women face high levels of societal discrimination. Gender-based violence (including physical, psychological and sexual violence) is common across all regions, ethnic groups and religious groups in Ethiopia, however, it is exacerbated in rural areas and most prevalent in the Somali region[10]. The Tribunal considers that it cannot exclude that this applicant, an elderly woman who will have to venture out to try to make a living in difficult circumstances facing the whole country, faces a chance which is not remote, but is real, of serious harm in the form of a combination of gender-based violence and discrimination. 

    [10] The DFAT Report describes Ethiopia as a conservative society, where women face high levels of societal discrimination. Gender-based violence (including physical, psychological and sexual violence) is common across all regions, ethnic groups and religious groups in Ethiopia. Limited infrastructure and low levels of financial independence exacerbate the problem, particularly in rural areas. Further, societal norms and a lack of financial independence lead to under-reporting, particularly in rural areas. While violence against women is prevalent across all parts of the country, but is reportedly most prevalent in the Somali (and Afar) regions, where the vast majority of the population is Muslim and the family legislative framework is based on traditional practices and Sharia law and is not aligned with the corresponding laws at the federal level. There is no credible up-to-date data on the incidence of rape and sexual violence and harassment, but sexual violence is widely considered to be highly prevalent, and perpetrators are rarely punished. 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.

18. Real chance of serious harm: The Tribunal considers that the applicant’s profile of being elderly, female, and without family support, in a rural environment where livelihoods have been severely affected by drought, starvation, locusts and Covid-19, faces a real chance of a withholding of support and opportunities for employment and accommodation, as well as a real chance of gender-based violence. The Tribunal is satisfied this will result in a small but real chance of a combination of significant economic hardship to the applicant that threatens her capacity to subsist as well as serious physical harm to the applicant. The Tribunal is therefore satisfied there is a real chance of serious harm to the applicant in her area in the Ogaden (Somali) region of Ethiopia.

19. The essential and significant reason: The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is the applicant's membership of a particular social group of elderly women without male support, which is an immutable characteristic, and which is not the fear of persecution. The Tribunal is satisfied that the harm involves systematic and discriminatory conduct.

20. A lack of effective protection: The Tribunal is not satisfied, considering the level of discrimination and other harm that the applicant faces as a result of her circumstances, based on the independent information, that she would receive protection from the Ethiopian authorities. It considers that the nature of the harm feared by the applicant in the context of the country information means that there are no effective protection measures available to her. The DFAT Report states that while women officially have access to police and the court system, societal norms mean that they seldom pursue that right. Limited infrastructure and low levels of financial independence exacerbate this problem, particularly in rural areas.

21. Relocation: The Tribunal does not consider that the applicant can relocate to some other part of Ethiopia to avoid the harm as the nature of the harm faced exists throughout Ethiopia.

22. Therefore, considering all of the evidence, the Tribunal is satisfied that the applicant faces a real chance of serious harm based on her membership of the particular social group of elderly women without male support. The Tribunal finds that the applicant has a well-founded fear of being persecuted and that she is not able to seek the protection of her country nor relocate.

23. For the sake of completeness, the Tribunal has considered other claims made by the applicant.

24. The applicant’s ethnicity: The Tribunal notes that her ethnicity is Ogden. It asked the applicant whether she had any problems due to her ethnicity. She responded that her tribe left Ethiopia. She said there was a large conflict about five years ago, with discrimination. She said that her tribe was fighting other tribes: the Oromo were fighting the Ogden. She said, however, that this would not affect her if she goes home, it is just her personal safety that is an issue.

25. The applicant’s medical conditions: The applicant told the Tribunal that she was taking tablets for [medical condition 3] back in Ethiopia as she had had [medical condition 3] for many years (at least nine years). When the Tribunal put to her that she had previously had access to medication and medical attention, she said that medication is everywhere but there is no one to care for her. The Tribunal notes that the applicant has a further condition of [Medical condition 1], which has required treatment. There is no suggestion that she will not be able to access medical care, although the conditions for healthcare are not ideal. The DFAT Report states that Ethiopia’s health system has undergone a significant transformation over the last two decades, including an expansion of health facilities and an increase in the number of health professionals working across the country. There have been strong improvements in some health outcomes; however, these improvements have come from a very low base. Life expectancy at birth has increased to 64.6 years in 2015, compared with 56.3 years in 2005.

    Country of reference - the Tribunal’s concerns as to nationality and s.91WA of the Act

26. In her protection visa application form, the applicant claimed that she was born on [date] in Ethiopia, and it was on this date that she acquired her Ethiopian citizenship. Her passport also indicates that she was born on that date in [City 1], Ethiopia.

27. She told the delegate at interview that she was born in Ethiopia; she was born in the bush [in] the highlands of Ethiopia, and grew up in the countryside. When asked the reason why she spoke Somali although she lived in Ethiopia, the applicant said that this was because she grew up with no parents so grew up in an area with nomadic Somalis and in a village with Somalis. She knows no other language other than Somali. She claimed that she had travelled near to the border but had never been in Somalia.

28. At the first hearing, the applicant said that she was born in Ethiopia in Jijiga in the countryside. As noted above, her daughter gave evidence that she was born in [year] in Somalia. From the time she was born until she was [age] years of age, she lived with the applicant and her husband in Somalia. The family lived in two places, Hargeisa and on the Somali side of [City 2]. When she was [age] years old, the applicant and the applicant’s husband went to Ethiopia, to a village, and she went to [Country 1] to arrange her travel to Australia. The daughter claimed that the applicant was born in [City 2]. The evidence of the daughter, as well as the denials and then admissions from the applicant that she had spent years in Somalia, made it difficult to accept the applicant’s own evidence as to her place of birth.

29. The Tribunal asked the applicant what documents she gave to the authorities when she obtained her passport, noting that in her application form she said that she applied in person for her passport. She responded she just advised them of her birth date and that is all. When the Tribunal asked if she gave them any documents, she said no, just verbal, in her country there are no documents. The Tribunal said it was concerned that the information the applicant gave to the passport authorities was incorrect. It referred to s.91WA of the Act, noting that if she was not born in Ethiopia, then the information she had given to the authorities to obtain her passport would mean that she had provided false information to obtain the passport, and the passport would be considered to be a bogus document. The Tribunal noted that the meaning of this was that the applicant would be unable to be granted a protection visa unless the Tribunal was satisfied that the applicant had provided a reasonable explanation for providing the bogus document. The Tribunal also put this to the applicant pursuant to s.424A of the Act; in response the daughter, on behalf of the mother, stated that her mother was born in [City 1] as shown in her passport; the daughter had mistakenly thought that her mother was born in the same place as her (Hargeisa in Somalia). She also referred, as noted above, to the people who live in these areas [as] Somalis. There was tension between the two countries and their people were affected by this. They would move back and forth across the border, from one side to another.

30. The Tribunal has considered country information in this regard. While the Tribunal is reluctant to accept as true the claims of witnesses in this case, it does accept that the region has experienced flows of people between Ethiopia and Somalia for reasons including conflict and environmental factors, for many years:

    To better understand the cross-border movements of people of Somali ethnic origin and their status as related to the citizenship regulations of Ethiopia and Somalia, some background information may prove helpful.

    Ethiopia is a multi-national state with over 70 ethnic groups, which are distinguished by separate origins, physical appearance, culture, religions and languages. One of these ethnic groups is the Somali, who constitute about six percent of Ethiopia's total population, and generally live in the Ogaden region in southeastern part of the country. [ George Thomas Kurian, Encyclopedia of the Third World (New York: Facts on File Publications, 1987), p. 666.]

    According to the Somali government's irredentist claims, the Somali-inhabited Ogaden region belonged to the historic Somali nation, before being colonized by Ethiopia during the colonial division of Africa in the late 19th century. Ethiopia, on the other hand, takes the position that the Ogaden is an integral part of its territory and, consequently, regards Somali challenges as acts of aggression against Ethiopia's integrity. [Alan J. Day, ed., Border and Territorial Disputes (London: Longman Group UK Ltd., 1987), pp. 128-129.] Thus, while the people inhabiting the Ogaden are predominantly of ethnic Somali origin and have deep-rooted social, cultural and economic ties with Somalia, their land is legally part of Ethiopia. The emerging general picture was best summarized by the Horn of Africa journal: "sandwiched between two competing claimants to the barren, drought-stricken region, the mainly nomadic population has been all but decimated by the rivalry over who will control them and their land." [ "Ogaden: The Land But Not the People", Horn of Africa, Vol. 4, No. 1, 1981, p. 42.]

    The ethnic Somalis living in the arid semi-desert of the Ogaden have developed over the centuries a way of life peculiarly suited to their demanding environment: a wary cycle of seasonal migrations between campsites, water wells, and grazing grounds. Migration being a way of life for Somali nomads in Ethiopia and Somalia alike, the result is a constant and substantial movement back and forth across the Ethiopia-Somalia frontiers, posing political problems between the two countries.

    Neither the Constitutions of Ethiopia or Somalia afford citizens the right of freedom of movement, nor do they specifically provide for citizens the right to leave and to return to the country. In both Ethiopia and Somalia, travel abroad by citizens is controlled by the respective governments through the issuance of passports and mandatory exist visas. [U.S. Department of State, Country Reports on Human Rights Practices for 1988 (Washington: U.S. Government Printing Office, 1989), pp. 116 and 315.] In the case of Ethiopia, emigration is heavily restricted, except in special cases such as marriage to, or adoption by, a foreign national. Leaving Ethiopia illegally is a serious offence reportedly punishable by five to 25 years' imprisonment or, in exceptional cases, by death. [ Kurian, p. 665.]

    In his study, The Right to Leave and Return in International Law and Practice, Hurst Hannum observed that the major issue of trans-frontier movements in Africa is not formal emigration or travel, but rather the mass exoduses and influxes of refugees and others displaced by civil strife, famine, or other events beyond their control. [ Hurst Hannum, The Right to Leave and Return in International Law and Practice (Dordrecht: Martinus Nijhoff Publishers, 1987), p. 109.] during and following the 1977-78 Ogaden war, several hundreds of thousands of Ethiopians (mostly ethnic Somalis from the Ogaden) fled to Somalia; the May 1988 civil war in northern Somalia resulted in the influx of hundreds of thousands of Somalis into Ethiopia[11].

    [11] Ethiopia: can a person born in Ethiopia of Somali parents (or a Djiboutian mother) or one that marries an Ethiopian citizen acquire Ethiopian citizenship? >

    The Tribunal has considered the passport provided by the applicant. The Tribunal notes that the Department accepted the passport as genuine and the applicant travelled on it from Ethiopia into Australia.  The Tribunal notes the DFAT Report states that fraudulent passports are rare and expensive to produce because of security features; the Tribunal is not satisfied that the applicant or her family members would have had the means to do this. The DFAT Report also states that credible contacts in Addis Ababa told DFAT that Ethiopian passports are typically genuine and reliable, but sometimes contain falsified visas to build up a fake travel history. Also common are genuine passports based on fraudulent feeder documents. The Tribunal had a concern that the applicant, if she was born in Somalia as her daughter had claimed, had provided false “feeder” documents in order to obtain her passport. However, the Tribunal has considered information from a report about acquiring Ethiopian citizenship, which states that:

    According to information obtained from the Ethiopian Embassy, the government of Ethiopia does not automatically grant citizenship to persons born within Ethiopian boundaries. A Somali citizen wishing to acquire Ethiopian citizenship, will have to present himself\herself to an immigration officer. One of the requirements is proof of residency in Ethiopia for no less than a year. The applicant is also expected to renounce his Somali citizenship, as Ethiopia does not accept dual citizenship. The Embassy stated that upon determining the identity and history of the applicant, the immigration officer will make a decision. The embassy official stated that new laws detailing naturalization will be promulgated in the near future.

    Mengist Ab Tsegaye of the Catholic Immigration Centre in Ottawa in corroboration, states that Ethiopia does not accept dual citizenship, and will require a prospective applicant to first renounce their citizenship[12].

    [12] Ethiopia: can a person born in Ethiopia of Somali parents (or a Djiboutian mother) or one that marries an Ethiopian citizen acquire Ethiopian citizenship? >

    The Tribunal accepts that the applicant, who is ethnic Somali having resided for many years in the Ogaden region in Ethiopia, presented herself to an Ethiopian official seeking to obtain a passport. The Tribunal cannot rule out that the official had an understanding of movements within the region and that he/she was satisfied as to the applicant’s Ethiopian nationality and place of birth in Ethiopia, and on that basis, provided her with a passport. Accordingly, having regard to the country information and the daughter’s response to the s.424A letter, the Tribunal has decided that it should give the applicant the benefit of the doubt and accept that she was born in Ethiopia and then at the age of [age] was taken to Somalia, where she lived for many years. Accordingly, having given the applicant the benefit of the doubt, it finds that s.91WA is not relevant.

31. Further, the Tribunal is satisfied (on the basis of the country information in paragraph 74) that the applicant is not a dual national of Ethiopia and Somalia.

32. The Tribunal is prepared to accept that the applicant is a national of Ethiopia, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Ethiopia.

    Right to enter and reside in other countries

33. Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by ss.36(3), (4), (5) and (5A) of the Act. They provide as follows:

    Protection obligations

    (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

    (4) However, subsection (3) does not apply in relation to a country in respect of which:

    (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

    (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that

    (a) the country will return the non-citizen to another country; and

    (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    (5A) Also, subsection (3) does not apply in relation to a country if:

    (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and

    (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

34. This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

35. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

1. In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).

2. The delegate’s decision record stated that it did not accept that the applicant had taken all steps to enter Kenya, noting that Ethiopian citizens have no entry requirements and can stay for up to 30 days and then apply for asylum. There is no evidence before the Tribunal that the applicant has any relatives or contacts in Kenya. The Tribunal has concerns that the same factors which make her vulnerable in Ethiopia would also make her vulnerable in Kenya. Country information states that discrimination and violence against women are common in Kenya. Men tend to hold positions of power, with many believing that women are incapable of leadership. Even though the Constitution of Kenya 2010 has improved women’s rights, many still have limited access to justice and are unaware of their rights and legal position[13]. Further, an ABC article refers to staggeringly high, often unreported rates of sexual assault in poor Kenyan communities, such as Nairobi slums, which includes the targeting of elderly women. The article states that “a lot of old women used to be raped by young men. They take drugs, alcohol and when it enters their head, they can't differentiate between their elders and young girls”; this has led to the elderly women starting self-defence training. Most of the women in this group have either been sexually assaulted personally, or they know someone who has[14].USDOS reports note that although Kenyan law provides protection against discrimination and violence against women; however, domestic violence is widespread, rape often goes unreported, and discriminatory customary law provisions often trumped statutory law in the justice system[15].

   [13] ‘Kenya - Country Report on Human Rights Practices 2015’, US Department of State, 13 April 2016.

3. The Tribunal has also considered Somalia, given the applicant’s ethnicity, and the suggestion that her daughter claimed to have family there. The Tribunal asked the applicant whether she or her daughter have relatives in Somalia, and she said that her daughter’s husband’s relatives are in Hargeisa in Somalia. She claimed that she has no relatives anywhere.  The Tribunal does not accept that the applicant is a witness of truth, however it does consider that the country information indicates that it would be difficult for the applicant to find support in Somalia, even if she did have some relatives there.

4. While the Tribunal accepts that the applicant was able to unofficially cross the border to Somalia on numerous occasions, it notes that she cannot be considered to be a Somali citizen as she cannot have dual nationality. If she did manage to enter and stay there, the DFAT Report states that the security situation in Somalia is highly volatile and security incidents and crime are a common feature of everyday life. Somalia is ranked first of 178 countries on the 2016 Fragile States Index and seventh on the 2016 Global Terrorism Index. Inter-communal violence is the major destabilising factor in Somalia, including armed conflict between clans or warlords. Other factors include: protracted conflict, severe humanitarian conditions, widespread corruption, piracy, border disputes with Ethiopia and Kenya, and the presence of al-Shabaab and other Islamist groups (including those linked to ISIL–the Islamic State of Iraq and the Levant aka Daesh). All contribute to an unstable and unpredictable security environment. Due to high rates of poverty and widespread impunity, crime, including violent robbery, kidnapping and personal violence is a serious issue, particularly in Mogadishu. Overall, DFAT assesses that the security situation in Somalia is a significant push factor for external migration. Concerning the situation of women, the DFAT Report states that, in practice, women in Somalia face significant official, cultural and social barriers. Formal female workforce participation is limited by cultural norms that dictate women should be engaged in household work; around 37 per cent of women over 15 years of age are formally employed. Given widespread poverty and the high number of women-headed-households, there are many women working in the informal labour sector. Overall, DFAT assesses that women throughout Somalia face a high risk of official and societal discrimination and gender-based violence. There are few support mechanisms available to women, particularly to women who are internally displaced or do not have clan connections. Violence against women, including domestic violence, rape, sexual abuse, exploitation and trafficking is widespread throughout Somalia. Somalia is not a party to the UN Convention on the Elimination of Violence against Women. Women without family and clan connections are more vulnerable to gender-based violence and have less access to justice than women who come from majority clans. UN Women reported that the Somali National Army and the national police operate within a patronage system that rewards loyalties, resulting in unequal access to their services, which often disadvantages women. Women also have less access to independent financial resources, which are required in the pluralistic justice system in Somalia.

5. Conclusion in relation to s.36(3)-(5A) of the Act: The Tribunal considers that even if the applicant has a temporary right to enter and reside in Kenya or Somalia, the evidence suggests that she faces a real chance of being persecuted for reasons of her membership of a particular social group, namely single women. Thus, in the particular circumstances of this case, the Tribunal is satisfied that the conditions prescribed in s.36(4) are satisfied such that s.36(3) does not apply.

   Conclusion

6. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   DECISION

7. The Tribunal remits the matter for reconsideration with the directions that:

   ·the applicant satisfies s.36(2)(a) of the Migration Act;

   ·the grant of the visa is not prevented by s.91WA of the Migration Act.

   Christine Cody
   Member

   
   

   ANNEXURE A - CRITERIA FOR A PROTECTION VISA

8. 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, he or she 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.

9. 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 because the person is a refugee.

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

11. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA (see Annexure B).  

12. 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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B) (see Annexure B).

    Mandatory considerations

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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.

    
    ANNEXURE B - Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)    the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)    without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)    the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)    a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)    significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)    disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)    a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)    any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)    protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)    the person can access the protection; and

    (b)   the protection is durable; and

    (c)    in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …