1609972 (Refugee)

Case •

[2019] AATA 5950

•

7 June 2019

1609972 (Refugee) [2019] AATA 5950 (7 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1609972

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Paul Windsor

DATE:7 June 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 07 June 2019 at 9:36am

CATCHWORDS
REFUGEE – protection visa – Ethiopia – imputed political opinion – perceived membership of Ginbot 7 – adverse interest to Tigray People’s Liberation Front (TPLF) – Endowment Fund For Rehabilitation Of Tigray (EFFORT) – affected business interests of TPLF leaders and loyalists – race – Tigrayan ethnicity – credibility issues – ability to maintain government position despite claimed adverse attention – no serious harm despite claimed defiance of repeated and blunt warnings – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 20 June 2016 to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

  2. The applicants, who claim to be citizens of Ethiopia, applied for the visas on 21 August 2014.  [The first named applicant] submitted his own claims for protection while his wife, [the second named applicant], and their two children, [the fourth named applicant] and [the third named applicant], did not submit their own claims for protection.  A summary of relevant applicable law is at Attachment A.

  3. In their Protection visa applications [the first named applicant] and [the second named applicant] state they were born in [Town 1] in the Tigray region of Ethiopia on [date] and [date] respectively.  Both applicants indicated they belong to the Tigray ethnic group and are orthodox Christians.  [The first named applicant] indicates that he speaks, reads and writes Amharic, Tigrigna and English.  The applicants indicated they were married in [Town 2] Ethiopia on 2 January 2003.  [The first named applicant] stated he departed Ethiopia legally [in] January 2012 and arrived in Australia [in] January 2012, entering on a Student visa.[1]

    [1] See folios 111-114 and 117-124 of the Departmental file.

  4. In a supporting statement included with the Protection visa application, [the first named applicant] claimed to fear persecution from the Tigray People’s Liberation Front (TPLF) because of his perceived membership of the Ginbot 7 political party.[2]

    [2] See folios 115-116 of the Departmental file.

  5. The delegate refused to grant the visas because she did not find credible [the first named applicant]’s claims to have engaged in activities that would have brought him to the adverse interest of the TPLF/authorities and to have been arrested in November 2011 for raising the issue of government interference in his work. The delegate also found the delay in [the first named applicant] seeking protection detracts from the credibility of his claims and the genuineness of his claimed fear of harm upon return to Ethiopia.

  6. [The first named applicant] applied to the Tribunal for review of this decision on 4 July 2016.  He did not provide the Tribunal with a copy of the delegate’s decision record.

  7. [The first named applicant] and [the second named applicant] appeared before the Tribunal on 21 May 2019 to give evidence and present arguments.  While the Tribunal hearing was conducted largely in English, an interpreter in the Tigrinya and English languages was present and assisted as necessary.

  8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

  9. [The first named applicant]’s claims from the statement included with his Protection visa application are summarised as follows:[3]

    [3] Ibid.

    ·In July 2010 he faced persecution at the hands of the TPLF political leaders in Mekelle city because of his perceived membership of the Ginbot 7 political party which is branded a terrorist group by the Ethiopian government.

    ·In 2005 he started working as [Occupation 1] with [a specified] agency within [a government department].  The agency established [associations] which provided [assistance to certain communities].  This brought them into conflict with the TPLF, which is a member of the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF), because it would impact their business interests in the Endowment Fund For Rehabilitation Of Tigray (EFFORT) - which has more than 66 companies - and [other vested interests].

    ·EFFORT’s current CEO is the widow of former Prime Minister Meles Zenawi.  Other top leaders of the country and TPLF members lead the companies and use them as their private companies, diverting the profits away from the original intended objectives - Tigray rehabilitation endeavours.

    ·In February 2010 he and his colleague, [Mr A] sought to mobilize the boards of directors of [associations] to not to ‘adapt’ (sic) government sanctioned marketing of their products under EFFORT but to carry out their own semi-processing and market their products, [where] they can get better prices.  During a community meeting where they were promoting this idea, opposition political leaders were also in attendance.  Following the meeting a conflict started between them and some of the Tigray politicians who saw them as a threat and as supporting the opposition parties.

    ·One day they were verbally cautioned not to involve themselves with opposition personalities, told they must immediately stop mobilizing [the community] against EFFORT and were instructed to promote EFFORT.

    ·As they felt it was their moral and professional obligation to help small [businesses] they continued to promote the [associations].  Their [agency boss], [Mr B], was supportive of their ideas, which were protecting [associations] from the dominance of the greedy EFFORT companies.

    ·One night armed men went to his colleague’s house looking for his colleague but he was not there.  When told about this, his colleague decided to flee to [Country 1] where he sought refuge.

    ·After his colleague fled, the focus was on [the first named applicant].  On 12 July 2011 police came to his house and searched it.  He was questioned and abused, accused of collaborating with opposition parties, and threatened that he would be killed.

    ·On 5 November 2011 [the first named applicant] exposed the intervention of politicians in professional jobs at an annual assessment meeting for experts and leaders of the region.  This was considered him seeking to overthrow the government by mobilising people against the government under the pretext of professionalism.

    ·Two days later he was arrested.  He was repeatedly beaten and questioned regarding his political motives and the whereabouts of [Mr A].  He was released on his uncle’s pleading and following payment of bribes.

    ·Upon his release he stopped mobilising people against EFFORT and kept a low profile.  He obtained a scholarship to Australia with the support of his immediate manager ([Mr B]).

    ·When in Australia, seven months before seeking protection, he heard from his parents through a policeman who is a distant relative that [Mr A] was arrested after sneaking back into Ethiopia.  When interrogated [Mr A] said it was [the first named applicant] who was mobilising the people against the government and that he is a member of Ginbot 7, an opposition party that is in exile in the USA.  His parents were warned that the government has opened a case against him and he will be arrested the moment he arrives in Ethiopia.

    ·[Mr B], who recommended him for a scholarship in Australia, was fired.  He does not know where [Mr B] is or what has happened to him.  The TPLF politicians are out to get anyone who goes against them or their parties.  He fears if he returns he will be arrested, tortured and may be killed by the security forces on suspicion that he is a member of the opposition party.

  10. At the interview with the delegate held on 7 September 2015 [the first named applicant] submitted the following documents in support of his application:[4] 

    ·Human Rights Watch World report 2015: Ethiopia.

    ·Amnesty International Report 2014/15, Ethiopia.

    ·Article by Abebe Gellaw of 28 July 2009 titled ‘Tigrians outraged over EFFORT-led corruption’.

    ·Article from the Ethiopian times of 30 July 2012 title ‘Ethiopia is looted by EFFORT and the TPLF Business Empire’.

    ·Article from Ethiogrio.com of 21 August 2015 titled ‘Ethiopia Releases Five, Charged Under The File Of De Birhan’s Co-Blogger Zelalem’.

    ·Article from Tigrai Online on 31 July 2015 by Gebremedhin Gebru titled “Is the Investment Climate in Tigrai encouraging for business and investors?’ (and ensuing online discussion).

    ·Letter of support dated [in] September 2015 from the Chairman of [an Ethiopian Community Association] in [Australia].

    [4] See folios 158-211 of the Departmental file.

  11. The representative made a submission in support of the review application on 15 May 2019.[5]  Key additional matters raised in this submission are summarised as follows:

    ·[The first named applicant] fears harm upon return to Ethiopia due to his imputed political opinion. 

    ·In early 2010, he and his colleague were questioned by [Mr C], a member of the [government] and the Manager of [EFFORT companies].  [Mr C] advised them they were of interest to the Federal Central Committee because opposition figures were attending quarterly [association] member meetings and supporting mobilisation activities.  They were threatened that if they did not stop mobilising [association members] against EFFORT companies they would lose their jobs and be arrested and imprisoned.

    ·With the support of their supervisor they continued their stand in support of the [association members], which was viewed to be against EFFORT companies.  He believes this affected EFFORT companies financially, enraging the EFFORT leaders.

    ·When he was detained [in] 2011 he was questioned about his support for opposition groups including Ginbot 7.  On the third day he was told that if he did not tell the truth he would be killed.  He was released late on the third day after the intervention of his uncle, who paid bribes.  He was warned that if he continued to mobilise the [association members] he would be killed.

    ·[The first named applicant] also fears harm due to his Tigray race.  In Tigray state he would be required to support the Tigray elite, the TPLF and would face harm if he did not.  If he relocated outside of Tigray, he would be at risk of harm due to his race, given the high level of ethnic and racial tensions throughout Ethiopia, which have greatly escalated since the emergence of a new leader.  He can be easily identified as Tigrayan by his accent, language and identity documents.  The new Prime Minister has given greater power to members of the Oromo race, leading to a high level of tensions with other ethnic groups.  He believes these tensions will continue to escalate.  Tigrayans are viewed with a high level of suspicion and many Tigrayans have been forced to return to Tigray due to threats to their safety.

    [5] See folios 43-51 of the Tribunal file.

  12. On 28 May 2019 the representative forwarded a further submission addressing matters raised at the hearing held on 21 May 2019.[6]  Relevant additional matters raised in this submission are summarised as follows:

    ·[The first named applicant] was not seeking to mobilise the community against state sanctioned marketing.  The EFFORT companies are privately owned by the TPLF and the TPLF indirectly use their power to ensure EFFORT companies are able to profiteer.

    ·The TPLF initially was more interested in [Mr A] but turned its attention on [the first named applicant] after [Mr A] fled the country.  He was apprehensive about participating in the November 2011 meeting but did so as he felt he had an obligation to create meaningful change for his wider [community].  He was only released from detention due to the intervention of his uncle and then kept a low profile.  His profile is greatly enhanced by the fact that [Mr A] was arrested, tortured and subsequently told the authorities that [the first named applicant] is an affiliate of Ginbot 7.

    ·Country information does not suggest there are political watch lists that prevent people from departing the country.

    ·[The second named applicant] was confused when providing the year of her husband’s arrest due to differences in the Ethiopian and western calendars, nerves and difficulty in recalling dates.

    ·While the change in leadership has created change in the country [the first named applicant] continues to face a real risk of serious harm as it is unlikely meaningful change has occurred throughout the country.  The TPLF would continue to harm people who affected the profitability of their private companies.  Country information referred to in the previous submission suggests the authorities in Tigray continue to harm individuals who do not support them.

    ·The DFAT Country Information Report indicating that the applicant would not be at risk of harm due to his race was released prior to the change of leadership.  Since that time, his ethnic community has faced greater issues, as other ethnic communities view all Tigrayans as affiliates of the TPLF and therefore as the enemy, and seek retaliation against him.  [The first named applicant] fears if forced to return to another part of Ethiopia he will be harassed, persecuted and systematically discriminated against due to his race.  He also fears the TPLF has the ability to locate him if he relocated to another part of the country.

    [6] See folios 55-56 of the Tribunal file.

    Findings and reasons

    Identity

  13. Considering the copies of their Ethiopian passports provided to the Department, and noting the delegate’s findings in relation to this matter, the Tribunal finds that the applicants are citizens of Ethiopia as claimed.  Accordingly, the Tribunal finds that Ethiopia is their country of nationality for convention purposes and is their ‘receiving country’ for complementary protection purposes.[7]

    Key Issues

    [7] See folios 16-83 of the Departmental file.

  14. The issues in this review are whether [the first named applicant] faces a real chance of suffering treatment amounting to persecution involving serious harm from the Ethiopian and Tigrayan authorities (including TPLF personalities, members and supporters) and/or from non-ethnic Tigrayan Ethiopians, if he was to return to Ethiopia, because of his actual and/or imputed anti-TPLF political opinion and his Tigrayan ethnicity; and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Ethiopia, there is a real risk he will suffer significant harm for the purpose of s.36(2)(aa) of the Act.

  15. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    Credibility

  16. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

  17. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

  18. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

  19. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

  20. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

  21. For the reasons set out below the Tribunal did not find key elements of [the first named applicant]’s claims to be credible and finds that he concocted these claims to support his case for protection.  

    Assessment of claims

    Claim to fear serious harm from the TPLF

  22. In the statement of claims included with his Protection visa application [the first named applicant] stated that in July 2010 he faced persecution at the hands of TPLF political leaders in Mekelle city (the capital of Tigray region in Ethiopia).  He stated his persecution was based on him being perceived to be a member of the Ginbot 7 political party which is branded ‘as terrorist’ by the Ethiopian government. 

  23. In its most recent Country Information Report on Ethiopia, DFAT indicates that the TPLF is part of the ruling EPRDF coalition which ‘controls Ethiopian politics’, having won all but two of the 547 House of the People’s Representatives seats at the 2010 election and all 547 seats at the last (2015) election (as well as all but 21 of the 1,987 regional council seats).  The report indicates that the EPRDF coalition is dominated by the TPLF.  The report also indicates that, following protests disputing the results of the 2005 election the government cracked-down on opposition parties, independent organisations and media freedoms, and in 2009 introduced the Anti-Terrorism Proclamation (ATP), under which it has arrested large numbers of opposition figures and journalists.[8] 

    [8] DFAT, Country Information Report, Ethiopia, 28 September 2017, sections 2.15-2.18.

  1. A January 2018 BBC News report indicated that Ginbot 7, founded by Andargachew Tsege, was designated a terrorist group by the Ethiopian government in 2011.[9]  The Al Jazeera news service reported in July 2018 that Ginbot 7 was among three ‘rebel groups’ to be taken off Ethiopia’s list of terrorist organisations, following the group releasing a statement indicating it would cease armed attacks in the country following reforms announced by the new government of Prime Minister Abiy Ahmed.  The report indicated that Ginbot 7 was formed after the disputed 2005 election, taking its name from the date in the Ethiopian calendar when the vote took place, and commented that it was an outlawed opposition group which has claimed responsibility for numerous deadly attacks in the past.  It states that top Ginbot 7 officials were released from prison in June 2018, including Andargachew Tsige, who was found guilty of violent attacks and initially sentenced in absentia in 2009 over his role in the opposition group, and that prosecutors also dropped charges against the group's leader Berhanu Nega, who is based outside Ethiopia and in 2009 had received a death sentence in absentia over an assassination plot.[10]

    [9] ‘Ethiopia court jails members of outlawed group Ginbot 7’, BBC News, 12 January 2018, Hamza Mohamad, ‘Ethiopia removes OLF, ONLF and Ginbot 7 from terror list’, Al Jazeera, 5 July 2018, >

    DFAT also advises that, despite Constitutional guarantees of equality under the law without discrimination on political grounds; freedom of assembly, demonstration and petition; and freedom of association; in practice political freedoms are very restricted in Ethiopia.  DFAT also advises there are reports of public servants who are not EPRDF members having their career progression curtailed.  DFAT comments that all vocal opponents of the government face the risk of being monitored, harassed, arrested and detained as a result of their political opinion, including otherwise low-profile people who attend anti-government protests.  DFAT also indicates that the government maintains a strong and capable domestic intelligence system and is broadly considered to have a strong capability to monitor the activities of persons of interest in Ethiopia.  This includes a supporting network of civilian monitoring and reporting, where one individual will typically report on the activities of around five others (known as the one-to-five system).  DFAT assesses that individuals who actively protest against the government or its policies - physically or online, in Ethiopia or overseas – are unlikely to escape the attention of the authorities.  DFAT comments that there are also reports that family members and neighbours of members and supporters (or perceived supporters) of opposition groups may be monitored, harassed, arrested and detained by authorities.[11]

    [11] DFAT Country Information Report, Ethiopia, sections 3.30-3.34 and 5.9-5.11.

  2. [The first named applicant] claims that he and a colleague, [Mr A], came to the adverse attention of ‘Tigray political leaders’ because they were involved in mobilizing and promoting [associations] to protect their [members] from exploitation by private companies controlled by TPLF party leaders and loyalists, including the conglomerate EFFORT (comprising more than 66 companies), the CEO of which is the widow of the late Ethiopian Prime Minister Meles Zenawi.  [The first named applicant] stated that they mobilised communities and influenced them not to ‘adapt’ (sic) government sanctioned marketing, leading to a conflict between them and some of the Tigray politicians.

  3. At the hearing [the first named applicant] indicated that his position with [the agency] within the [department] was a Tigray regional government position.  Noting the country information indicating the TPLF’s dominant role within the EPRLF government which ‘controls Ethiopian politics’, and the government’s intelligence capabilities and intolerance of dissent, the Tribunal asked [the first named applicant] why the TPLF would have allowed them to establish and maintain [the agency] if they wanted it closed.  He indicated that this was not official government policy but the TPLF politicians were trying to influence them indirectly.  The Tribunal asked [the first named applicant] why these TPLF leaders didn’t just arranged to have him dismissed from his position if he was not doing what they wanted.  He commented they were in a higher position and so tried to put pressure on him and his colleague.  The Tribunal found [the first named applicant]’s comments unconvincing noting that the country information from Amnesty International and Human Rights Watch [the first named applicant] provided to the Department also indicates that the government used arbitrary arrests and prosecutions to silence those critical of the government and that the ATP had been used since 2009 to stifle dissent.  The Amnesty International report comments that federal and regional security services operated with near-total impunity.

  4. The Tribunal asked [the first named applicant] why [Mr C] did not act on his warning given in early 2010 that he would have [the first named applicant] and [Mr A] dismissed, arrested and imprisoned if they did not stop mobilising [the community] against EFFORT companies.  He did not answer the question but replied that if they had done that the [associations] would not have functioned properly and it would not have been in the interests of the [community].  He said they had a big gathering at the regional level, with 340 people in attendance, where they mobilised [members] not to use the EFFORT companies.  He said opposition leaders were supporting their ideas and they did not want to stop so they continued to hold gatherings every quarter.  He said that after every meeting the TPLF would call and caution them.  Noting the relevant country information, the Tribunal put to [the first named applicant] that it could not understand why there would have been no consequences only further cautions given he indicated he had first been warned in early 2010.  

  5. [The first named applicant] said his colleague [Mr A] fled to [Country 1] in July 2011, when armed men came to his house looking for him.  He indicated that it was also around this time ([2011]) that police came and searched his house.  He said he had been in the field organising [associations], mobilising [members] to sell their [product] directly rather than through an EFFORT company.  [The first named applicant] indicated in his written statement that he was intensively questioned, accused of collaborating with opposition parties and verbally abused, to the extent of being threatened that he would be killed.  The Tribunal asked [the first named applicant] why the police who came to his house would have issued him with another warning when he had ignored previous warnings and threats.  He indicated that the warnings related to the EFFORT companies rather than the government that he was responsible to for his work.  He commented that he and [Mr A] were just doing their jobs but there was a ‘trend’ as they formed more [associations] with [members] selling directly to the market which reduced the income of the EFFORT companies.  The Tribunal found [the first named applicant]’s responses evasive as he was not addressing the key issue being put to him – why the authorities continued to warn him rather than act against him.

  6. The Tribunal asked [the first named applicant] what opposition personalities were attending the meetings.  He indicated he did not know the people or their names and did not know who was TPLF or opposition but they got information from the TPLF that opposition figures were there.  The Tribunal found this remark at odds with [the first named applicant]’s written statement indicating that opposition political leaders were attending their meetings in support of their ideas.  The Tribunal considers if this was the case it is likely that such persons would have made their identities known to and indicated their support directly to [the first named applicant] and [Mr A].

  7. The Tribunal put to [the first named applicant] that he said [Mr A] fled in July 2011 because he knew his life was in danger and had indicated that he himself had been interrogated, accused of collaborating with opposition parties, abused and threatened that he would be killed.  The Tribunal asked him why, in those circumstances, he would then have spoken out against the ‘intervention of politicians’ (as claimed in his written statement) at an annual assessment meeting [in] November 2011.  [The first named applicant] said he was just doing his job and following ‘the principles’, and that they had no evidence or reason to put him in jail.  He added that he understood that something might happen to him but there were a lot of people at the meeting including opposition leaders and exporters and he decided he had to protect his [members] and accept whatever risks might come to him.

  8. Given the available country information regarding the role of the TPFL in the governing coalition, the level of control the EPRDF has exerted over Ethiopian politics since 2005, the EPRLF’s lack of tolerance of political dissent and its use of the ATP to silence dissenters, the Tribunal does not accept that senior TPLF figures would have allowed [the first named applicant] (and his colleague [Mr A]) to act in the way he claims they did for so long, after being warned in early 2010 and repeatedly warned thereafter.  The Tribunal does not accept that [the first named applicant] would have continued his activities if [Mr A] had fled to [Country 1] in July 2011 in fear for his life as claimed, and if [the first named applicant] himself had been threatened that he would be killed as claimed.  The Tribunal considers that the country information supports the view that if TPLF politicians and/or leaders had concerns about [the first named applicant] and [Mr A], they would have acted decisively to have them dismissed from their jobs, arrested and/or detained as they had threatened.

  9. The Tribunal also finds it implausible that if [the first named applicant] was finally detained two days after a meeting held [in] November 2011 because he spoke out against the ‘intervention of politicians’ as claimed, he would have been released after a few days simply because his uncle paid a bribe.  When queried why given the claimed circumstances he wasn’t detained for a very long time [the first named applicant] said he was not a member of a group opposing the current government but was just protecting [members] and their profitability.  He said they had no evidence he had a political profile.  The Tribunal does not accept this explanation.  The Tribunal finds that the country information indicates that the government did not need concrete evidence that someone was a member of an opposition group to subject them to arbitrary arrest and lengthy detention under the ATP.  In this regard DFAT indicates that all vocal opponents of the government face the risk of being monitored, harassed, arrested and detained, including otherwise low-profile people who attend anti-government protests.  DFAT comments that there are also reports that family members and neighbours of members and supporters (or perceived supporters) of opposition groups may be monitored, harassed, arrested and detained by the authorities).[12]  [The first named applicant] indicates that he was repeatedly warned of serious consequences if he continued to act in the way he claims to have acted, that he was being monitored and that opposition personalities were attending his meetings, but he indicates he ignored these warnings.  If this was the case, the Tribunal does not accept that if he had been detained in November 2011 he would have been released after a few days because the authorities had no evidence he had a political profile.

    [12] DFAT Country Information Report, Ethiopia, 28 September 2017, section 3.34.

  10. The Tribunal also considers it most unlikely that either [the first named applicant] or his boss ([Mr B]) would have been allowed to continue in their positions and that [the first named applicant] would then have been able to gain a study scholarship to Australia with the endorsement of [Mr B] (who he indicated was supportive of his and [Mr A]’s activities).  When queried by the Tribunal why [Mr B] had not been arrested for allowing him and [Mr A] to act as they had, [the first named applicant] commented that [Mr B] had not been directly involved in mobilizing [members].  He said [Mr B]’s job was to direct the whole office, not to stop them doing their jobs.  The Tribunal found this explanation unconvincing and considers it unlikely that senior TPLF figures would draw such a distinction if a government entity had continued to act against their interests in defiance of repeated and blunt warnings.  The Tribunal finds [the first named applicant]’s explanation is also contradicted by his claim that [Mr B] was subsequently (after the claimed detention of [Mr A] in early 2014) fired from his employment and he does not know where he is and what has happened to him.

  11. The Tribunal also asked [the first named applicant] why [Mr A] would have been of interest to the authorities when he returned to Ethiopia two years later if [the first named applicant] was released after a few days.  He said he was not sure what might have happened later and what information the authorities might have got from the [members] or others.  Noting that [the first named applicant] did not depart Ethiopia until Late January 2012 and his wife and children did not come to Australia for a further year, and considering DFAT advice regarding the intelligence gathering capabilities of the Ethiopian government, the Tribunal doubts that [the first named applicant] and subsequently his family would have been able to depart Ethiopia unhindered if the authorities were still speaking with [members] and investigating the activities of [the first named applicant] and [Mr A].  In this regard [the first named applicant] said when he left Ethiopia he sent his family to a village 250 kilometres away.  As put to [the first named applicant] at the hearing, under the one-in-five system of community based monitoring/intelligence gathering the Tribunal considers it likely that the authorities would have known about his family having moved and where they were if he was of interest to them.  The representative has submitted that country information does not suggest there are political watch lists that prevent people from departing the country.  The Tribunal considers, however, that DFAT’s advice indicates there is a strong and highly capable domestic intelligence service and that Ethiopians travelling internationally by air are subject to security and identification checks at the airport, and that biometric security measures linked to national databases apply at formal entry and exit points across the country.[13]  The Tribunal considers that this indicates that people of interest to the authorities would be identified when seeking to leave the country.

    [13] DFAT Country Information Report, Ethiopia, 28 September 2017, sections 5.9-5.11 and 5.22.

  12. [The first named applicant] claimed in his written statement that about 7 months after he came to Australia a ‘distant relative’ policeman who was ‘privy to what is going on’ told his parent that [Mr A] had returned to Ethiopia, was detained and had disclosed to the government that it was [the first named applicant] who was mobilising the people against the government, and also told them [the first named applicant] was a member of Ginbot 7.  The representative submits that this has ‘greatly enhanced’ [the first named applicant]’s profile.  The Tribunal does not accept that this is the case because if [the first named applicant]’s evidence is to be believed, he would already have had a high profile as a dissident.  While the representative has submitted that [the first named applicant] was not seeking to mobilise the community against state sanctioned marketing because the EFFORT companies were privately owned by the TPLF, [the first named applicant] himself has claimed that both he and [Mr A] were repeatedly cautioned, warned and threatened of serious consequences if both of them did not stop mobilising [the community] against the government (indicating that the government perceived their activities as anti-government), and that the authorities were concerned that opposition figures were attending their meetings, but [the first named applicant] indicated that he ignored those warnings and in November 2011, four months after he claimed [Mr A] had fled to [Country 1] in fear of his life and his ([the first named applicant]’s) house had been searched and he had been questioned, abused and threatened by police that he would be killed, he spoke at a major meeting where he ’exposed the intervention of politicians’.  [The first named applicant] wrote that these actions were ‘considered an enemy idea to overthrow the government by mobilising people to mobilize against the government under the pretext of professionalism’.  If this was the case, as claimed, the authorities clearly already thought in November 2011 that [the first named applicant] was seeking to mobilise the people against the government, was associating with opposition figures, and was seeking to overthrow the government.  As discussed above, however, the Tribunal finds that if this was the case, [the first named applicant] would not have been detained for a few days and released in November 2011 because his uncle paid a bribe, but detained long term under the ETA, which the country information provided by the applicant as well as DFAT reporting indicates has been used since 2009 to arrest large numbers of opposition figures and journalists.[14]  Accordingly, the Tribunal finds that [the first named applicant] has concocted his claim to have been detained in November 2011 and his evidence that [Mr A] was detained in early 2014 and told authorities that it was [the first named applicant] who was mobilising people against the government and that he is a member of Ginbot 7, resulting in the government opening a case against him and given rise to a fear that he will be arrested the moment he arrives in Ethiopia.

    [14] DFAT Country Information Report, Ethiopia, 28 September 2017, section 2.17.

  13. In reaching these conclusions the Tribunal is mindful that when the Tribunal asked             [the first named applicant]’s wife, [the second named applicant], whether her husband had been arrested while he was in Ethiopia she indicated he was and that he was detained for three days.  She indicated that while she understood his uncle arranged for him to be released she did not know why he was released, commenting that he did not share political issues with her.  She added that it was apparent on his body that he had been beaten.  While her evidence is consistent with [the first named applicant]’s evidence in this matter, the Tribunal finds that it is unable to give weight to this evidence as it has not come from an independent source but is from [the first named applicant]’s wife, who is a secondary applicant in this case and has a strong vested interest in the outcome.  Given the Tribunal’s analysis and findings above that if [the first named applicant] had been detained as claimed and in the claimed circumstances, he would not have been released after three days, the Tribunal does not accept that [the first named applicant] was detained in November 2011.

  14. The Tribunal has also considered the letter of support dated [in] September 2015 from the Chairman of [an Ethiopian Community Association] in [Australia] which            [the first named applicant] provided to the Department.  This indicates that as a consequence of his work [the first named applicant] endured a lot of problems at the hands of the government and as a consequence his life was in danger until he came to Australia and that he has told them he is reluctant to return home as he is fearful for his life.  The author comments that they follow and understand how government politicians harass and hurt professionals like [the first named applicant] when they affect their businesses and so believe what he has said is true and similar to what has happened to many professionals in different sectors.  The Tribunal finds that this letter of support is based on an acceptance of [the first named applicant]’s claims on the basis that such harassment and life threats are possible.  The Tribunal accepts that such a scenario is possible in Ethiopia, but has found that the circumstances described by [the first named applicant] do not support the conclusion that this has occurred in his case.  The Tribunal does not accept that [the first named applicant] would have been released from detention after three days and would have been able to come to Australia on a study scholarship if his claimed circumstances prior to departing Ethiopia were true.  [The first named applicant] is claiming that it is events that occurred after he departed Ethiopia that have now raised his profile such that he would be arrested immediately on return.  Based on careful consideration of the available evidence as discussed above, the Tribunal does not accept that this is the case.

  1. The Tribunal also put to [the first named applicant] and [the second named applicant] that country information indicates that the situation in Ethiopia has changed dramatically since Abiy Ahmed became Prime Minister in April 2018, including that Ginbot 7 is no longer banned.[15]  He responded indicating that he agreed there have been a lot of changes and that he was happy when Abiy Ahmed became Prime Minister, commenting that the new prime Minister went to Tigray and made a speech there and people were very happy.  [The first named applicant] indicated, however, that while regions have released people imprisoned because of their political opinions the TPLF have not released all those who were imprisoned for opposing their party.  He said Tigray is challenging the new Prime Minister and does not accept the release of Ginbot 7 figures or those from other parties.  He added that the situation in Tigray is still serious and three-four weeks ago there was a protest in the main city (Mekelle) where younger people were arrested or disappeared, indicating that the Tigray government is still not allowing people to go against them.  He said there was a television program recently where 27 people from different ethnic groups were asked ‘is there peace in Ethiopia’ and all answered ‘no’.  He said people can’t move from Addis Ababa to Tigray because all the people in Amhara and Tigray regions are armed and people are expecting that something will happen.  [The first named applicant] said that a recent television program reported that the government had captured more than 100,000 weapons and commented that now everyone is armed. [The second named applicant] commented that while she doesn’t really understand politics she understands that the Tigrayan people and Ginbot 7 are not really in agreement and have not sorted out their issues.

    [15] US Department of State, Ethiopia 2018 Human Rights Report, >

    The Tribunal accepts the changes effected by the new Prime Minister have not been universally accepted and that Ethiopia continues to face significant challenges.  A 2019 article in Chatham House comments that while Abiy Ahmed has made ‘great strides at reforming the authoritarian state in his first year’ there has also been a ‘sharp increase in lawlessness, intensified domestic conflict, heightened identity-based violence and huge internal displacements’.[16]  The report comments that to date Abiy Ahmed’s accomplishments far outweigh his shortcomings but significant tests lie ahead.  It notes that the EPRDF had been dominated by the TPLF for over 25 years and the new Prime Minister is the first ethnic Oromo and first leader of the EPRDF from the Oromo Democratic Party (ODO), and indicates that disputes have intensified between EPRDF member parties amid a widespread perception that ODP is replacing the TPLF as a hegemon.  The report comments that the security situation has worsened party because the new Prime Minister has targeted Ethiopia’s authoritarian security agencies to gain popular support and remove threats to his leadership, relieving senior officials from their positions and arresting others on corruption charges.  It states that this has resulted in the TPLF and Tigrayans feeling targeted by the government and has caused a damaging power vacuum.  This assessment is supported by other reports including a 2019 report by the International Crisis Group.[17]

    [16] ‘Can Abiy Ahmed Continue to Remodel Ethiopia’, Chatham House, 12 April 2019, ‘Managing Ethiopia’s Unsettled Transition’, International Crisis group, 21 February 2019, >

    While it is clear that the political and security situation is complex, given its findings set out above that [the first named applicant] was not detained in November 2011 and [Mr A] was not detained in early 2014 and did not tell the authorities that it was [the first named applicant] who was seeking to mobilise the people against the government and is a member of Ginbot 7, and accordingly that a case has not been raised against [the first named applicant]; the Tribunal considers that there is not a real chance that [the first named applicant] would be detained on his return to Ethiopia or if he went to Tigray because he is considered to be a member or supporter of Ginbot 7 or other previously banned opposition groups, or because he is considered to have opposed TPLF politicians or identities in Tigray.  In relation to his comments about recent arrests in Mekelle, the capital of Tigray, the Tribunal notes that the representative’s submission referred to a recent report from the Ethiopia Observer indicating that Tigray security forces detained a dozen opposition members who were taking part in a clean-up (anti-corruption) campaign launched by the Prime Minister.  The reports comments that the regional government is cracking down on opposition members in the region who are seen to be sympathising with an initiative of Prime Minister Abiy Ahmed, whom the regional government is actively opposing.  The Tribunal accepts that this indicates that there remain powerful vested interests in the Tigray regional government who are opposing the Prime Minister’s reform efforts.  However, as the Tribunal does not accepts that [the first named applicant] is of interest to the Tigray government and [the first named applicant] has not indicated that he is a member or supporter of any political parties that might bring him to the adverse attention of either the federal or Tigray governments if he returned to Ethiopia, the Tribunal does not accept [the first named applicant] personally faces a real chance of being arrested, detained and/or mistreated should he return to his home area in Tigray region.

  2. The Tribunal also finds that while there have been outbreaks of lawlessness in and around Addis Ababa in the last few years, including in September 2018 that left at least 58 dead,[18] these are sporadic and there is no evidence to support [the first named applicant]’s assertion that he would be unable to leave the capital to travel to his home region in Tigray.  Reporting indicates that the government responded strongly to the violence in September 2018, which reportedly coincided with the return from exile in Eritrea of 1,500 fighters from the Oromo Liberation Front (OLF), by arresting thousands of people and sending many to military camps for ‘rehabilitation’.[19]  The Tribunal finds this indicates willingness by the new government to balance the new political freedoms with strong measures to preserve security where necessary.

    [18] Ibid.

    [19] ‘Thousand Are Arrested in Ethiopia After Ethnic Violence’, The New Your Times, 24 September 2018, >

    The Tribunal also accepts that there has been concern about the number of weapons held by individuals and groups in Ethiopia.  DFAT commented that it understands different tactics used by security forces in dealing with Oromo versus Amhara protesters in 2015 and 2016 reflected a concern about the high proportion of firearm ownership in Amhara and the wish to avoid a more sustained conflict.[20]  The Tribunal considers that reports such as those referred to by [the first named applicant] indicating the government is capturing or confiscating a large number of weapons is a positive sign that steps are being taken to disarm individuals and groups who pose a threat to security.  In this regard the Tribunal notes a recent report from New Business Ethiopia indicating that the government had approved a new law to tackle the illegal arms trade.  The report comments that since Abiy Ahmed came to power the police have reported capturing thousands of pistols and bullets as well as other guns and explosives, mostly while they were being smuggled into the capital.[21]

    Claim to fear serious harm due to Tigrayan ethnicity

    [20] DFAT, Country Information Report, Ethiopia, 28 September 2017, section 3.8.

    [21] ‘Ethiopia approves law to tackle illegal arms trade’, New Business Ethiopia, 3 February 2019, >

    The Tribunal asked the applicant why he thought he would be at risk due to his Tigrayan ethnicity, noting that he has previously lived in Amhara and Oromia, Tigrayans are the majority ethnic group in Tigray state and country information indicates that while they are only 6 per cent of the total Ethiopian population, Tigrayans historically have been a powerful minority.[22]

    [22] DFAT Country Information Report, Ethiopia, 28 September 2017, sections 3.3-3.5.

  3. [The first named applicant] commented that nearly 3 million people in Ethiopia are now displaced due to their ethnicity.  He said it is very difficult for Tigrayans to live outside Tigray because most of the crimes of the last 27 years are due to the TPLF so people outside Tigray see Tigrayans as the enemy.  He said all the security people have moved to Tigray and are still doing their job.  He said TPLF security people are also in Addis Ababa so they could also capture him there.  He said there are local ethnic tensions in Addis Ababa so Tigrayans are shifting to Tigray and commented that 114,000 have been displaced, which he said is the second highest number of people displaced after the Amhara.  He commented that the main government positions are now shifting from Tigrayans to people of Oromo and Amhara ethnicity.

  4. The Tribunal acknowledges the representative’s submission that the DFAT report predates the change of Prime Minister in April 2018 and therefore does not touch on issues that have faced ethnic Tigrayans since that time.  In this regard the 2019 Human Rights Watch report indicates that almost 1 million people were displaced in April and June 2018 due to inter-communal conflict between Guji and Gedio communities in Oromia and the Southern Nations, Nationalities and Peoples’ Region (SNNPR); in early August 145,000 more people were displaced in Somali and Oromia regions due to renewed fighting; and in September ethnic violence displaced 15,000 people from the outskirts of Addis Ababa.[23]  The 2019 International Crisis Group report indicates that Tigrayans were forced out of areas of Amhara; Amharas were evicted from Oromia; and Wolayta, an ethnic group from SNNPR, were expelled from areas of Oromia.[24] 

    [23] Human Rights watch, World report 2019, Ethiopia, ‘Managing Ethiopia’s Unsettled Transition’, International Crisis group, 21 February 2019, >

    The Tribunal accepts that the country information indicates that there has been forced displacement of people of various ethnic groups, including Tigrayans, from various regions across Ethiopia.  The country information indicates that this often due to long standing grievances regarding land ownership.  The relevant country information also indicates that there is some resentment of Tigrayans because of the political power formerly enjoyed by Tigrayans.   Given its findings above, however, the Tribunal does not accept that [the first named applicant] could not access and return to his home state of Tigray, where Tigrayans are the majority ethnic group, and where the Tribunal finds he would not be at risk of being arrested, detained and/or mistreated as a consequence of his past activities or due to any actual or imputed political profile of opposition to the TPLF, and would not be at risk of being caught up in any inter-ethnic violence or displacement of ethnic Tigrayans such as occurred in Amhara region.

    Cumulative consideration

  5. The Tribunal has also considered [the first named applicant]’s claims cumulatively and finds that he does not face a real chance of suffering persecution involving serious harm as a consequence of his actual and/or imputed political opinion and his ethnicity should he return to Ethiopia.   

  6. The Tribunal finds that these conclusions also apply in the case of [the first named applicant]’s wife and two children, the secondary applicants in this case who did not make claims in the own right. 

    Complementary protection

  7. Having concluded that [the first named applicant] does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act. 

  8. In considering whether there is a real risk that [the first named applicant] will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Ethiopia, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[25]

    [25] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

  9. [the first named applicant] has not advanced any claims indicating that he considers he would face a real risk of significant harm if returned to Ethiopia other than for the reasons discussed above relating to his claims under the refugee criterion. 

  10. The Tribunal notes the representative’s assertion that it is evident based on [the first named applicant]’s testimony that he was humiliated in the past and that he faces a real risk of being subjected to degrading treatment and punishment and would be at risk of cruel, degrading and inhuman treatment from the TPLF and affiliated authorities if he was returned to Ethiopia.  The Tribunal does not accept, however, that this is the case.  In light of its credibility findings and given the Tribunal does not accept that [the first named applicant] faces a real chance of suffering persecution involving serious harm in the reasonably foreseeable future if he returns to Ethiopia, the Tribunal, having regard to the findings of fact set out above and [the first named applicant]’s claims individually and cumulatively, also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Ethiopia, there is a real risk that he would suffer significant harm in the form of being arbitrarily deprived of his life; having the death penalty carried out on him; being subjected to torture; being subjected to cruel and inhuman treatment and punishment; and/or being subjected to degrading treatment or punishment (including humiliation) by the Ethiopian authorities (including the police), political leaders, members and supporters of the TPLF, and/or members of non-Tigrayan ethnic communities; or anyone else, should he be returned to Ethiopia.

  11. The Tribunal finds that these conclusions also apply in the case of [the first named applicant]’s wife and two children, the secondary applicants in this case who did not make claims in the own right.

    Conclusions

  12. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under the Refugees Convention. Therefore they do not satisfy the criterion set out in s.36(2)(a).

  13. Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

  14. There is no suggestion that any of the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, none of the applicants satisfy the criterion in s.36(2).

    DECISION

  15. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Paul Windsor
    Member
      Relevant law



    ATTACHMENT A

  16. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Refugee criterion

  17. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

  18. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

  19. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

  20. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

  21. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

  22. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

  23. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

  24. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

  1. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

  2. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

  3. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

  4. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

  5. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Section 499 Ministerial Direction

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

    Member of the same family unit

  7. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include spouse or de facto partner and dependent children.



Human Rights watch, World report 2019, Ethiopia,

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Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
MIMA v Rajalingam [1999] FCA 179