1613280 (Refugee)

[2022] AATA 1120

1613280 (Refugee) [2022] AATA 1120 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613280

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE:4 March 2022

PLACE OF DECISION:  Perth

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

Statement made on 04 March 2022 at 4:46pm

CATCHWORDS

REFUGEE – protection visa – Ethiopia – race – Amhara – political opinion – Blue Party – National Movement of Amhara – academic actions against the government – advocacy for Amhara causes in Australia – religion – Ethiopian Orthodox Church – member of the Ethiopian diaspora – detention – fear of torture – communal violence – attacks on churches – initial return to Ethiopia – ethnically based political opinions – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
WAKK v MIMIA [2005] FCAFC 225

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 dependants.

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 5 August 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background and migration history

2. The applicant is [an age]-year-old citizen of Ethiopia, who was born in Addis Ababa. He is an Orthodox Christian and identifies as ethnically Amhara.

3. Prior to coming to Australia he was living in Addis Ababa with his parents who remain living there in the same home. He has [specified family members] all living in Addis Ababa. He does not have any family in Australia.

4. In 2014 he joined [Employer 1] as an [occupation 1] undertaking several shipping contracts at sea. Later he joined [Employer 2]. As part of his work with the shipping companies he travelled to [specified countries] from [in] 2014 and [2015].

5. The applicant arrived in Australia onboard [a named vessel] having been granted a maritime crew visa [in] May 2014. He deserted the vessel and was taken into immigration detention [in] October 2015. He made an application for a protection visa on 16 November 2015 and was released from immigration detention on a bridging visa on 29 March 2016.

   Protection claims

   Protection visa application

6. In his application for a protection visa, the applicant stated that he could not return to Ethiopia due to a real chance of serious or significant harm arising from his political opposition to the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) party, both in Ethiopia and since arriving in Australia, and his Amhara ethnicity.

7. In his written application the applicant claimed:

   ·He is a single, Amhara, Ethiopian male from Addis Ababa, Ethiopia.

   ·He has experienced discrimination due to his Amhara ethnicity and political opinion due to the ruling Ethiopian government.

   ·Once graduating from [University 1] with a degree in [Subject 1] in [year], he was employed at [University 2] as a lecturer from [year range].

   ·While employed as a lecturer, during a faculty meeting [in] October 2012, he voiced his concerns to the university regarding marking practices as they were encouraged to pass students to keep graduation rates up in order to fulfil a government promise. He was also pressured to join the EPRDF, to encourage other students to do so and report the political activities of students.

   ·Following the meeting, he was warned by others to cease voicing his concerns, otherwise he could be harmed.

   ·[In] January 2013, on return to Addis Ababa for Christmas, he met up with a friend who convinced him to join the Semayawi Party (Blue Party). On hearing about the party, he contacted the Blue Party office, became a member, received a membership card and returned to [City 1].

   ·On return to [City 1] he began informing his workmates and friends about the Blue Party and organised meetings in which they criticised the ruling government.

   ·In March 2013, in opposition to the university’s pressure on lecturers to pass students, such as by making lecturers give extra assistance to failing students and being asked to list students who are furthering EPRDF membership, the applicant, along with the other lecturers, [indicated] that they would resign if they are made to do such activities.

   ·[In] March 2013, he was taken by Ethiopian authorities, who detained and beat him for three days, during which time they asked who the other Blue Party members were and why he was involved in political activities. Before being released, he was forced to sign a statement that he would cease all political activities at university. Following his release, he fled to Addis Ababa and began training [in another occupation] from April to September 2013.

   ·He found it difficult to find employment due to not being an EPRDF member, however following his training he was employed as an [occupation 1] from April to October 2014.

   ·While unemployed, he continued to support the Blue Party by paying his membership fees, gathering donations and he attempted to recruit others.

   ·[In] November 2013, he attended a protest against the Saudi Arabian government’s treatment of Ethiopian migrant workers in Saudi Arabia, at which he was beaten.

   ·While campaigning for the Blue Party for the May 2015 election by distributing pamphlets and attending meetings, he attended a protest in Addis Ababa [in] April 2015, against the killing of Ethiopians by Islamic State of Iraq and the Levant (ISIL). Towards the end of the protest, public disturbances broke up due to demonstrators shouting anti‑government slogans. The demonstration turned violent, and he was beaten by police.

   ·The government blamed the Blue Party for the disturbance at the protest, forcing the applicant to hide with friends and family until he was called for a [further] ship contract. During his period of hiding up to his departure in July 2015, the authorities would regularly visit his home and were actively searching for him, and they informed his mother that he has been participating in Blue Party activities and they would like to question him.

   ·Since October 2015, when he deserted the vessel, his mother has been in hiding, as his former maritime employer and the Ethiopian authorities wish to talk to her as she was guarantor for his employment and his conduct reflected badly on Ethiopia.

   Submissions to the Department

8. The applicant submitted a number of documents with to the Department with his application. These included:

   ·A statement from the applicant outlining his claims for protection;

   ·Identity documents and documents relating to his employment and education:

   oApplicant’s Ethiopian birth certificate recording the applicant’s birth in Addis Ababa;

   oFederal Democratic Republic of Ethiopia passport issued [in] 2012;

   oApplicant’s International Vaccination card;

   oApplicant’s Residence ID card (and translation) issued [in] 2014 recording the applicant’s details and address in Addis Ababa;

   oSeaman Book issued to applicant on [in] 2005;

   o[Country 1] Seafarer’s Identity Book issued to applicant [in] 2013;

   oTemporary Certificate of Graduation from [University 1] in the applicant’s name for the [degree] in [Subject 1] dated [in] June 2012;

   oCourse completion certificates in the applicant’s name issued by [Educational institution 1] for a range of subjects.

   o[University 2] ID card in the applicant’s name with date of employment [2004] (EC);

   oDocuments relating to the applicant’s maritime work including booking details of the applicant’s [Airline] flight from Addis Ababa on [a day in] July 2015, letter of guarantee (‘OK to board’) for the applicant and another person from the applicant’s shipping agents to [the Airline], a Certificate of Sea Service in the applicant’s name, from [April] 2014 to [October] 2014, a safety training certificate, medical results (identified as page 2 – no page 1 received);

   o[University 2] ‘Official and Final Grade Report’ for course [name] listing the applicant as ‘instructor’ for the academic year 2012/2013 (Semester 1);

   oEmail regarding ‘Course Guide Book Preparation’ from the head of the [Subject 1] Department at [college name] dated [in] 2013 and the applicant’s response;

   ·Open Blue Party letter (and translation) dated 9 June 2015 challenging the legitimacy of the ruling party’s election;

   ·Open Blue Party letter or media release (and translation) dated 10 March 2016 calling for the release of its members from prison and challenging the legitimacy of the ruling party’s election;

   ·Blue Party document signed by [name], [Position 1], dated [in] November 2016 (and translation) noting the applicant was a member of the organisation ‘travelling to different parts of the whole county’ and having ‘big contributions to be respected for Peace and Democracy’. The letter notes the applicant worked organising the young people and contributing financially to the organisation. The letter notes members suffered at the hands of the EPRDF and that their family members were in trouble with the government. It notes the applicant was ‘obligated to leave his lovely home country’;

   ·Blue Party membership card in the applicant’s name issued in 2013 (and translation);

   ·Receipts from Blue Party (and translations);

   ·Applicant’s Ethiopian driver’s licence (and translation);

   ·Statement from [Ms A] (translated) dated 11 November 2015 noting she saw the applicant when he came to [University 2] and he told her about his problems. The statement notes she went to the police station when he was arrested in March 2013 but was not permitted to see him. The statement notes she took him home when he was released and that he had been beaten and tortured. As a result he moved to Addis Ababa;

   ·Letter of support from Ethiopian Democratic Forum (Inc) (undated) including links to a speech from [an official] in February 2016 and an abridged resolution of the European Parliament with respect to Ethiopia. The letter claims the TPLF ‘is at war with its own citizens’ and includes a summary of what the writer notes they believe is the applicant’s history as provided to the writer on visits to the applicant in immigration detention;

   ·Letter of support from [Mr B], [Community Organisation A], dated 17 March 2016 for the applicant noting the EPRDF had committed human rights violations in Ethiopia and noting the writer had ‘heard from [the applicant]’ about his experience in Ethiopia noting that this ‘could possibly be true’ as others who had fled to Australia had experienced fear of persecution;

   ·Letter of support (undated) from [two named persons], [name Church] for the applicant and another person promising them support on their release into the community;

   ·Reference from [a further two named persons] dated 16 March 2016 attesting to the applicant’s good character and offering him support and housing if released on a bridging visa;

   ·Letter of support from [the further two named persons] dated 16 March 2016 attesting to the applicant’s good character;

   ·Letter of support from [Mr B] dated 9 March 2016 on behalf of [Community Organisation A], noting the willingness of the community to support the applicant on a bridging visa;

   ·Country information:

   o Human Rights Watch: Country Summary on Ethiopia dated January 2015;

   oHuman Rights Watch: World Report 2015: Ethiopia, events of 2014;

   oHuman Rights Watch: World Report 2014: Ethiopia, events of 2013.

9. The applicant was interviewed by the Department in relation to his application for a protection visa on 21 April 2016.

10. On 5 August 2016, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision to the Tribunal with his application for review.

11. The delegate accepted that the applicant was an Ethiopian citizen of Amhara ethnicity. The delegate also accepted the applicant worked as an instructor at [University 2] from 2012–2013. However, the delegate found that the applicant’s claims to fear persecution on the basis of his claimed political activities in Ethiopia, or since arriving in Australia, lacked credibility.

12. The delegate did not accept the applicant was detained or targeted as claimed or that he was involved in anti-government activities at [University 2]. Further the delegate did not accept the applicant was a member of the Blue Party or politically activities as claimed. The delegate did not accept the applicant attended protests in November 2013 as a member of the Blue Party. With respect to his claimed involvement in protests in April 2015, the delegate accepted it was plausible the applicant had attended these protests which took place in his hometown of Addis Ababa. However, the delegate found the applicant would have a low profile and was not at risk of harm on this basis. The delegate found this was the reason the applicant did not apply for asylum in any of the countries he visited in his employment up to October 2014.

13. The delegate did not accept the applicant faced any difficulties departing from Ethiopia or that his mother had been targeted by authorities after he left the country on the basis of his political activities.

14. With respect to the applicant’s claimed political activities in Australia, the delegate found the applicant had engaged in those activities for the purpose of strengthening his claim to be a refugee and accordingly disregarded this conduct for the purposes of that assessment. The delegate found that the treatment the applicant would be subjected to as an Amhara would not amount to persecution or serious harm in Ethiopia.

15. Based on these findings, the delegate was not satisfied the applicant faced a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Ethiopia.

    Review application

16. On 22 August 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.

17. The applicant attended hearings before the Tribunal on 17 March 2020, 14 October 2020 and 27 November 2020 to give evidence and make submissions in support of the review application. The applicant was represented in relation to the application for protection by a registered migration agent. That agent filed the application for review however a new agent commenced representing the applicant shortly after the review application was made. This is the agent listed on the decision and the agent who attended the hearings before the Tribunal.

18. The hearings were conducted with the assistance of interpreters fluent in the English and Amharic languages. The Tribunal notes that the applicant had a good command of English and generally responded to questions spontaneously in English. He indicated he wished to use the interpreter when required and the Tribunal indicated it would proceed on that basis. However, the Tribunal encouraged the applicant not to hesitate to use the interpreter if he had any difficulty understanding the Tribunal’s questions or if he felt he would be more clearly understood in Amharic. The Tribunal indicated it may also request the interpreter’s assistance on occasion to avoid any misunderstandings. The Tribunal considered that the applicant was able to fully participate in the hearing, primarily in English, with this understanding in place.

19. At the initial hearing on 17 March 2020, the Tribunal discussed with the applicant whether there were any changes to his claims or personal circumstances as expressed in his application and at the interview with the delegate. The Tribunal discussed with the applicant the information on which he was seeking to rely in support of his claims and his intention to call witnesses in support of his application.

20. Following the initial hearing, the Tribunal write to the applicant to indicate that the further hearing of the matter would be delayed due to the COVID-19 pandemic and the closure of the Perth registry for in-person hearings.

21. Once in-person hearings recommenced at the Perth registry, a further hearing was held on 14 October 2020 (following an earlier request for postponement from the applicant). As there was insufficient time to conclude the evidence on that occasion, a further hearing was held on 27 November 2020 (following another request for postponement from the applicant). The applicant was invited to provide any further information prior to the hearing in November 2020. Following the hearing on 27 November 2020, the applicant was provided with additional time to make written submissions.

22. A further hearing was scheduled on 26 March 2021 following the submission of a significant amount of post-hearing information raising new claims or evidence. This material is dealt with further below.

23. The hearings were held during the COVID-19 pandemic. At the time the initial hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in‑person hearings. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At that hearing, the Tribunal discussed with the applicant whether there were any changes to his claims as expressed in his application and at the interview with the delegate. The Tribunal discussed with the applicant the information on which he was seeking to rely in support of his claims and his intention to call witnesses in support of his application.

24. Subsequent hearings were held in person at the Perth registry.

    Claims and evidence before the Tribunal

25. In submissions to the Tribunal, the applicant claimed to fear harm due to:

    ·His ethnicity (as an ethnic Amhara whose family originated from the Welkait area);

    ·His political activism and steps he took to challenge the political majority through his professional career as an academic;

    ·His activities since arriving in Australia, including mobilising protests and organising those opposed to the political majority in Ethiopia, which would make him subject to persecution upon his return to Ethiopia.

26. In later information before the Tribunal, the applicant also claimed to fear harm on the basis of his religious beliefs as a member of the Ethiopian Orthodox Church.

27. A significant amount of new or additional information was provided by the applicant to the Tribunal in support of the application. Shortly after filing his application, the applicant submitted the following material to the Tribunal (in addition to copies of the material submitted to the Department prior to the delegate’s decision):

    ·Statutory declaration from the applicant dated 7 July 2017;

    ·Submission from the registered migration agent dated 7 July 2017;

    ·Five colour photographs annotated “Preparation for protect during [a named] Conference [July 2016] and weblinks to two newspaper articles covering this protest;

    ·A letter from [Community Organisation A], signed by [Mr B] and [Mr C], dated 6 July 2017 confirming the applicant is an active member of the organisation including having an active role in the organisation of public demonstrations in Australia in September and October 2016;

1. Prior to the first hearing the applicant submitted additional material including:

   ·A further statutory declaration from the applicant dated 6 March 2020;

   ·[University 3] Student ID card in the applicant’s name;

   ·A letter of support from [Community Organisation A], signed by [Mr C] dated 1 March 2020 noting the applicant’s involvement with the Ethiopian community in Perth, in particular with Ethiopian youth;

   ·A letter from [two named persons], Ethiopian Orthodox Church, signed by members of the church community and dated 6 March 2020. The letter notes the applicant’s involvement with the community in particular in mentoring young people;

   ·A letter from [a named academic] at [University 3’s named section] dated 4 March 2020 supporting the applicant’s academic and community activities and personal qualities;

   ·A letter from friend of the applicant, [Mr B], dated 4 March 2020 noting the applicant’s involvement with his family and work ethic. The letter also notes [Mr B’s] wife visited Addis Ababa in July 2016 and saw the applicant’s family and ‘witnessed his family frustrations’;

   ·A statutory declaration from [name] dated 7 March 2020 attesting that she had visited Ethiopia with their [children] from December 2019 to February 2020 and had witnessed military presence in Addis Ababa due to the activities of Oromo youth and noting she would not recommend travel to Ethiopia for anyone who is politically active like the applicant;

   ·Country information:

   oNews article from Africa News website dated 11 March 2020;

   oNewspaper article titled “Will Ethiopia Survive 2020?” dated 2 January 2020;

   oNews article titled “Ethiopia: Government must protect victims of escalating ethnic attacks” dated 8 June 2018.

2. Prior to the third hearing the applicant submitted the following documents:

   ·12 colour photographs with the annotation “Political activities in Perth 2016–2020”;

   ·Statutory declaration by [Mr B], a friend of the applicant, dated 8 October 2020. The statement attests to the applicant’s involvement in the Ethiopian community in Perth including sharing views on human rights and political issues in Ethiopia noting that he is known to be ‘against ethnic federalism in Ethiopia and the ethno‑federal system that was set up in the mid 90s’ and had taken a leadership role in the community promoting unity;

   ·Statutory declaration by [a] friend of the applicant, dated 8 October 2020. The statement attests to the applicant’s commitment to speaking about human rights in Ethiopia and opposing the unfair treatment of some ethnic groups in Ethiopia;

   ·Statutory declaration by [another] friend of the applicant and a member of [Community Organisation 2], dated 8 October 2020. The statement attests to the applicant’s support for the organisation and his role raising funds for Amhara in Ethiopia who were displaced as a result of Oromo attacks.

3. Following the third hearing the applicant submitted the following updated country information on 10 and 25 November 2020:

   ·Country information:

   oReport from Amnesty International dated 2 November 2020;

   oReport from Amnesty International titled “Beyond Law Enforcement, Human Rights Violations by Ethiopian Security Forces in Amhara and Oromia”;

   oSerbian Orthodox Church newsletter article on Ethiopian Christians dated 8 October 2020;

   oNews article from The World website titled “Uptick in church burnings raises alarm” dated 16 September 2019;

   oNews article from Addis Standard website titled “In-depth analysis: Spate of targeted attacks, excessive use of force by security in Oromia leave death trails, destruction” dated 15 July 2020;

   oUN News article dated 13 November 2020 titled “Reported Ethiopia massacre: UN rights chief warns of spiralling situation, war crimes”;

   oCNN World website article dated 24 November 2020 titled “At least 600 civilians were killed in northern Ethiopia massacre …”;

   oAll Africa website article dated 26 October 2020 titled “Ethiopia: Civilians continue to suffer from repeated violence in Metekel”;

   oNews article from NDTV website dated 15 November 2020 titled “Gunmen kill at least 34 people in bus attack in west Ethiopia”.

4. In December 2020 the applicant’s representative requested further time to submit information. On 4 January 2021 the applicant provided a significant volume of post‑hearing material including:

   ·Written submissions from the applicant’s representative dated 4 January 2021;

   ·Email correspondence in 2015 between the applicant and the shipping crew company;

   ·Email correspondence from February 2013 with [University 2] faculty showing group email addresses;

   ·A copy of a ‘Temporary Certificate of Graduation’ for a [Subject 1] from [University 1] dated [in] June 2012;

   ·The applicant’s maritime employment contract with [Employer 2];

   ·Statement from [Witness A] (original and translation), a former colleague of the applicant’s dated 30 December 2020 (with translation and identification), and a photo of the applicant with his former colleague indicating he worked for a year at [University 2] with the applicant noting that during this time lecturers were ‘coerced’ to become members of the EPRDF. The statement notes that the applicant expressed his views at meetings and clashed with the administration. The letter notes that a petition was signed by lecturers regarding political interference and it was submitted by the applicant who was imprisoned and quit his job as a result;

   ·Additional statement from [Ms A] (original and translation), the applicant’s aunt, dated 31 December 2021 (with translation and identification) relating to the applicant’s work as a lecturer at [University 2] and his arrest in March 2013. The statement also claimed the applicant had a computer and electronic items stolen from his rental property while working at [University 2] and that the applicant’s aunt had paid a bribe to secure his release from prison.

5. On 5 March 2021 the Tribunal wrote to the applicant noting the submission of a significant amount of material to the Tribunal following the third hearing, including documentary evidence and witness statements. The Tribunal noted the provisions of s 423A of the Act and invited the applicant to provide information regarding the reasons why this evidence was not presented before the primary decision was made.

6. On 17 March 2021 the applicant’s representative provided a response to this invitation which included:

   ·Written submissions from the applicant’s representative dated 16 March 2021;

   ·A statutory declaration signed by the applicant on 14 March 2021 (and the applicant’s passport identification);

   ·A copy of the applicant Seaman’s Identification and Record Book issued by [Country 1] issued [in] 2013;

   ·An [Ethiopian] Basic Training Certificate in the applicant’s name issued [in] September 2013;

   ·An Ethiopian Ministry of Health International Certificate of Vaccination;

   ·Evidence of airline bookings for [a day in] July 2015 for two passengers, one of whom was the applicant;

   ·Letter of guarantee (OK to Board) dated [the previous day in] July 2015 for two passengers, one of whom was the applicant.

   ·Copies of the applicant’s visa application documents;

   ·Letter from [name] (translation), the applicant’s brother, dated 25 November 2015 (it appears this document was being offered as a copy of a document submitted to the Department but which did not appear on the Department’s file. The final digit of the date of the document is obscured on the copy provided to the Tribunal however drawing from the context of the document and date of its submissions to the Department, the Tribunal infers it was prepared in 2015) stating the applicant had faced harm as a member of the Blue Party and that security police has come to the family’s house to ask about him frequently.

7. On 23 March 2021 the applicant provided further documents as follows:

   ·A travel itinerary for a proposed witness, [Witness A];

   ·A map of Ethiopia;

   ·Country information:

   oA newspaper article “Ethiopia: At least 100 dead in latest surge of violence against ethnic minorities” dated 23 December 2020;

   oA BBC News website article entitled “Ethiopia’s Tigray crisis: A rare view inside the conflict zone”;

   oA news article dated 20 March 2021 by Zecharias Zelalem (no source or title provided);

   oA 10-page article – undated, possible source is Al Jazeera (last page).

8. While the Tribunal considered it was unfortunate that the applicant had not taken the opportunity to provide this information and evidence before the primary decision was made, or before the two substantive hearings held in 2020, in order to ensure the applicant was given an opportunity to present his evidence and make submissions, a further hearing was held in March 2022. At that hearing, the Tribunal discussed the new evidence from the applicant and took evidence from [Ms A] and [Witness A].

9. After the final hearing the following documents were provided to the Tribunal:

   ·Written submissions from the applicant’s representative dated 2 April 2021;

   ·An email from witness [Witness A] (original and translation);

   ·A record of Facebook communication with [Witness A] (original and translation);

   ·A record of a chat message with [Ms A].

10. Consideration of the information provided by the applicant is detailed further below. In the Tribunal’s view, the applicant did not provide a satisfactory reason for the late provision of the evidence submitted following the 2020 hearings and the Tribunal considered this reflected adversely on the credibility of that evidence. However, for the reasons outlined further below, the Tribunal has found those issues of credibility were not ultimately determinative in the applicant’s circumstances.

11. In submissions to the Tribunal, the applicant disputed the findings of the delegate and claimed he was at risk of harm on the basis of his political opinions due to support for groups opposing the EPRDF, including since he has been in Australia. He claimed to be at risk of discrimination, detention and torture from Ethiopian authorities on this basis. He also claimed to be at risk due to his Amhara ethnic background and as a member of the Ethiopian diaspora. The applicant’s statements addressed additional claims arising since the filing of the application for protection, in particular, relating to civil war in Ethiopia. In his later statements, he claimed that the Blue Party no longer existed and he was now a member of the National Movement of Amhara (NaMA).

12. The applicant’s representative also submitted that the applicant has made a positive contribution while in Australia, would be an asset to Australia and would continue to make a contribution through paying taxes and filling a skill gap. While the Tribunal accepts evidence that the applicant’s good conduct in Australia may be relevant to credibility considerations, the Tribunal does not consider this to be otherwise relevant to the applicant’s claims for protection.

13. The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below. The Tribunal also discussed with the applicant relevant country information, including information contained in the most recent country information report on Ethiopia issued by the Department of Foreign Affairs and Trade (DFAT) in August 2020 (the 2020 DFAT Country Information Report).

    ISSUES

14. 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). The issue in this case is whether the applicant meets one or more of the alternative criteria in s 36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

15. The issue in the review is whether the applicant has a well-founded fear of persecution in Ethiopia due to his political opinions, ethnicity or for any other reason, or whether complementary protection provisions otherwise apply.

16. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CRITERIA FOR A PROTECTION VISA

17. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

18. 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.

19. 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 themselves 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).

20. 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, which are extracted in the attachment to this decision.

21. 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), which are extracted in the attachment to this decision.

    Credibility assessments

22. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[1] The mere fact that a person claims to fear 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 an 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.

    [1]     Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ.

23. The Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[2]

    [2]     Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].

24. If the Tribunal 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.[3] 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.[4]

    [3]     MIMA v Rajalingam (1999) 93 FCR 220.

    [4]     Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

25. Section 423A of the Migration Act provides that if the applicant raises a claim or presents evidence in the application that was not presented in the application before the primary decision was made, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

    Mandatory considerations

26. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

27. As noted above, the most recent assessment prepared for this purpose is the 2020 DFAT Country Information Report. Country information is considered further below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims and evidence

28. The applicant travelled to Australia on an Ethiopian passport and claims to be an Ethiopian national. The delegate had no concerns about his claimed nationality and the Tribunal accepts the applicant is a national of Ethiopia and has assessed his protection claims accordingly.

29. The Tribunal finds that the applicant is a citizen of Ethiopia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

30. There is no suggestion that the applicant has a claim to enter and reside, either temporarily or permanently, in a third country pursuant to s 36(3) of the Act.

    Summary of the applicant’s evidence and claims

31. As noted above, the applicant originally claimed to fear harm on the basis of his political involvement with the Blue Party in Ethiopia and later with anti-government groups while in Australia. More recently he claimed to be a member of NaMA. Connected with these claims the applicant feared harm as a member of the Ethiopian diaspora. He also claimed to fear harm based on his Amharic ethnicity and his family’s background as ethnic Amhara from the Welkait region. Most recently he claimed to fear harm on the basis of his religion as a member of the Ethiopian Orthodox Church.

1. The Tribunal has considered these claims individually and cumulatively.

2. Before the Tribunal, the applicant gave evidence that he had been discriminated against on the basis of his involvement with the Blue Party in Ethiopia. He said he had been involved in political activities since 2005 when he was a [student] and witnessed violent political suppression by the EPRDF in the context of the general elections. He said he was opposed to the ruling party in Ethiopia and was vocal in opposition to attempts to preference members of the EPRDF when he worked at [University 2] from 2012–2013. He said in January 2013 he became a member of the Blue Party on a visit back to Addis Ababa. He said he was drawn to that party because they were young and talked about positive change.

3. The Tribunal asked what he had to do to join the party and he said he registered and made a payment and after three months he became a full member. After he joined he returned to [City 1] where he criticised the government and spoke out about politics to his colleagues. He said he was working with young people for the coming election. He said there was no Blue Party office in [City 1] but there were individual members. He could not recall how many but there were ‘a couple of friends’.

4. He said that he clashed with the authorities at the end of the first semester because they wanted lecturers to favour students in the EPRDF, including by awarding them extra marks, and he refused to do so. He said this was raised at a meeting in the beginning of March. A week later he was arrested.

5. The Tribunal asked about the circumstances of his arrest. He said that on [the day in] March 2013 two people approached him as he was coming out of his office at the university, showed identification and asked him to come to the police station. He said that they took him to the police station where they put him in a room, hit him with a rubber stick (baton), and questioned him about his activities in [City 1] and Addis Ababa. He wasn’t sure how long he was there but he thought it was the next day that they took him to another prison. He said they left him there with no food for a couple of days. He said a member of his family came to get him released and an officer took him to another room and told him to a sign a paper for his release. He said he refused to sign but they forced him to. He said ‘the lady’ (his aunt) paid [amount] BIR and took her to his place and she managed transportation for him to go home to Addis Ababa. He claimed he stayed in Addis Ababa from that time and left [University 2]. He said he submitted his grades for his classes and looked for other jobs. He ‘finally decided to join another university’, [Educational institution 1], where he completed various trade training courses related to working as a maritime [occupation 1]. He completed these in September 2013.

6. The applicant’s account of his involvement with the Blue Party and arrest while at [University 2] were supported by several statements by the applicant’s aunt who testified at the hearing via phone from Ethiopia. She testified that in 2013 when he was working in [City 1], a friend told her he had been arrested and he went to the police station but they wouldn’t let her see him. She said she thought he was held for five days but she wasn’t sure exactly. She said the day after she went to the station, someone contacted her and asked her to collect money and take it to the station and she gave about [amount] BIR to the people at the station and he was released a few days later. This was not mentioned in her 2015 statement. She said that she did not mention the money because she was scared to write it because the government was following them. She said the applicant was in a bad way when he was released but she didn’t take him for medical treatment because he wanted to go home. A few days later he went to Addis to stay with his parents. She said that prior to that the government had taken his laptop. This was not mentioned in her 2015 statement and she said that she remembered it now but didn’t remember it in 2015. She said that it wasn’t a robbery but it was the police or government taking things. She said that after he left the ship his mother told her the authorities were saying they had to bring the applicant to them. She wasn’t sure who it was who said this.

7. He claimed he remained active with the Blue Party while studying at [Educational institution 1], giving them information and speaking about the party. He said he did not have issues with the authorities because [Educational institution 1] was ‘controlled by foreigners not the Ethiopians’. He told the Tribunal he returned to Addis Ababa for work and continued involvement with Blue Party. This included participating in demonstrations [in] November directed at the Saudi Embassy. He said the rally was peaceful but police blocked it. He said some people were arrested. When he was asked who was arrested, he said he could not recall.

8. He said he continued working with the Blue Party and looking for employment but he was discriminated against because of his ethnicity. He said he applied for a range of jobs but was unsuccessful because of his ethnic background. The Tribunal asked whether he was told that was why he didn’t get employed and he said that classmates who got grades lower than him had been employed with organisations which did not employ him.

9. He said that in April 2015 he attended a demonstration about ISIL and he said people were angry and the government tried to dismiss the demonstrators. The authorities said the Blue Party was responsible for the violence in the demonstration and was hunting them down so he didn’t go home but went to stay with a friend following the demonstrations. The Tribunal asked whether he tried to leave Ethiopia and he said he thought about leaving the country by crossing the border to Kenya but he would have had to pay smugglers and it was risky so he couldn’t leave. He said his travel documents were with the shipping agency at that time and he was ‘hiding’ in Addis Ababa when the shipping agency called him about his next contract. He said he decide to leave.

10. The Tribunal asked if there would be any issues with authorities if he left the country and he said he had no issues leaving. He said he was able to leave because someone was bribed. The Tribunal asked why he didn’t raise that claim earlier and he said that he had heard from a friend that the person had left work or left the country. The Tribunal noted that the fact he did not raise this claim before the delegate may raise a concern about the credibility of the claim. He said that he thought that if he was refused a visa the government would ‘hand over the information’ to Ethiopian authorities so he didn’t mention it. He said he was scared for the person who helped him. He submitted documents that indicated he left by air on a ticket issued in his name and that of another person working for the shipping company.

11. He said that once he left Ethiopia he continued to be active politically, including on the ship talking to people and later joining politically minded groups like Amnesty International and the Ethiopian Democratic Forum. In Australia he has been involved in political activities including demonstrations in September and October 2016. He submitted photographs of himself participating in activities carrying an Ethiopian flag, as well as supporting statements from members of the Ethiopian community in Australia.

12. He said he thought there were Ethiopian spies in the community reporting on his activities in Australia. When asked why he thought that was the case, he said his mum had been detained and his family members had been interrogated on different occasions but especially in 2016. He said his mother was interrogated and his father decided to shift to different places but they hadn’t told him because they don’t give specific information to him.

13. The Tribunal asked when his family’s first contact with the authorities was and he said it was after he deserted ship. They came to the house in October 2015. He said that the authorities asked his mother about him but they did not ask her about her position as a guarantor with respect to his shipping employment contract. He told the Tribunal they asked his mother about his political activities. He said he had been raising money through a funding committee to support them from here. He said the authorities had become aware of his parents’ background and connections to Welkait in this process. In his 2017 statutory declaration he claimed that his mother was his guarantor on his shipping contract and when he deserted his ship the authorities identified his family as Amharas from Welkait. They raided his parents’ home in October 2015 and interrogated his mother about his whereabouts. She was interrogated three times and detained in May 2016 for two weeks without explanation. He also claimed his siblings and father had been interrogated and harassed and asked to report to the police station for no reason. They were asked questions about his movements, public unrest and their background in Welkait. He claimed his family was at risk of harm on this basis.

14. He said that after he was in Australia he had contact with people who came from Welkait and he was aware of the chaos in Gondar. He said he was supporting those groups from here and became involved with the Amhara movement in this way. In his 2020 statement he claimed that in May 2019 the Blue Party merged with Ethiopian Citizens for Social Justice. The Blue Party no longer exists as an entity. He testified that while he respected the wishes of the party leaders to change direction, he made a decision to depart and join a party that reflects his principles and values. He joined a new opposition party called the National Movement of Amhara (NaMA) in October 2018. This party was founded in June 2018 by Amhara people for Amhara people in Ethiopia.

15. In his 2017 statutory declaration the applicant claimed that when he was at university, Tigrayans were given special treatment and Amharas were discriminated against. Before the Tribunal, he also claimed he was discriminated against when seeking employment in Addis Ababa on the basis of his ethnicity.

16. He claimed that his parents were from Welkait in Gondar, Northern Ethiopia. He claimed that Amharas in Welkait are suppressed by the Tigrayan regional government. He claimed to be raised by his parents with a Welkait Amhara dialect and accent which would result in him being identified by authorities at the airport on return to Ethiopia as a member of the Blue Party.

17. The Tribunal asked about his concerns regarding harm due to his ethnicity and he said that Amharas are being executed because of their Amharic ethnicity. He said that in the Oromo regions Amhara are being targeted by Oromo. He said his [brother] had been targeted with other Amhara forcing them to move from their homes in the outer areas of Addis. In April 2019 he was forced to move in with his parents. He said his father used to work all over the country driving trucks but now he could not because of attacks by Oromo nationalists. He said that in September 2019 his father was attacked while delivering machinery. He said different drivers were targeted so the military let them pass.

18. In his 2020 statutory declaration, the applicant claimed that ethno-nationalist movements had become stronger under the government of President Abiy and that Oromos had conducted attacks on Amharas including in Addis Ababa. He cited the following examples:

    ·On 23 October 2019, violent Oromo youth (commonly known as Qeeroos) staged violent riot in Addis Ababa as part of the violent movement to ‘re­claim’ Addis Ababa as an Oromo land;

    ·On 23 October 2019, Oromo attacks on Amharas occurred in Ambo, Adama (Nazret) and Haramaya (Alemaya), killing at least six and injuring 40. Road blockages were reported in Shashamane and riots occurred in Addis Ababa and surrounding towns, including the neighbourhoods of Bole Bulbula, Kotebe and Karakore. In Dodola woreda, the violence targeted the Orthodox community, with shops and houses attacked. Members of the community took shelter in the local church, but there were “dozens injured” after a grenade was thrown into the churchyard. Later, police took some of the injured for medical treatment, but “a mob stopped the vehicle and brutally killed three of the injured” before they could reach the hospital.

    ·On 24 October 2019, In Arsi, people were killed when an Amhara-owned factory was attacked, including the owner, his son and a number of employees.

    ·On 25 October 2019, Oromos attacked Amharas in Ambo, Bishoftu, Bale Robe, Mojo, Adama, Harar and Dire Dawa.

    ·On 31 October 2019, Prime Minister Abiy confirmed the Oromo attacks and claimed the death toll from the attacks was 78 people, which is likely to be much less than the actual death toll.

19. He claimed that ‘Living in Addis Ababa will put me at a high risk of being an attack target. If I am forced to live outside Addis Ababa, then, I will be forced to live away from my parents and siblings. This is a violation of my fundamental human right to life, liberty, personal security.’

20. In addition, the applicant claimed Orthodox Christians in Ethiopia were being persecuted. He said he can’t live in Amhara-dominated areas like Welkait because they are under threat from Tigray. He said both the Tigrayans and the Oromos target Amharas. He said in February two Orthodox Christians had been shot and the Pope said in March the government was not capable of keeping members safe. He claimed that churches had been burned down in attacks organised by the government.

21. The applicant claimed that the government was controlled by the Oromos and the capital city of Addis Abba was controlled by the Oromo groups. In his 2020 statutory declaration he stated that he was a devoted Orthodox Christian and that the Ethiopian Orthodox Church is the symbol of the country’s history and culture. Ethnic Amharas have thousands of years of strong affiliation with the religion and hence an attack on the Church is believed to be an attack on the history and culture of Amharas. In the past two years in Ethiopia, churches belonging to the Ethiopian Orthodox Tewahedo Church (EOTC) are being burned to the ground throughout Ethiopia. Since July 2018, about 30 churches have been attacked, mainly in different parts of Ethiopia, with more than half of them burned to the ground. The government of Ethiopia has provided no protection whatsoever to the Church and its followers.

22. As noted earlier, the applicant also claims that he was at risk as a member of the Ethiopian diaspora. He stated in his 2020 statutory declaration that ‘I will be forced to hide my background as someone who lived overseas as it may attract unnecessary attention from disguised political appointees who live within the community. Such political appointees are (disguised) ordinary community members who are spies and gather intelligence for the government. I already have a history of being political detainee in Ethiopia and hence is unsafe for me to reveal I lived overseas. Being a diaspora on its own puts me at risk of persecution.’

    Country information

    Political landscape

23. The DFAT 2017 Country Information Report notes of the EPRDF:[5]

    After winning around 83 per cent of the vote and winning 473 of the 547 seats in the HoPR in Ethiopia’s first democratic elections in 1995, the EPRDF and its affiliated parties subsequently won elections in 2000, 2005, 2010 and 2015. The only meaningful challenge to the EPRDF came in 2005, when opposition parties made significant gains, particularly in urban areas, winning 174 seats. Opposition parties disputed the results of the 2005 elections. Subsequent protests resulted in violence between protesters and government security forces, during which nearly 200 protesters died.

    [5]     2020 Report at [2.17].

24. However, as discussed with the applicant at the hearing, country information indicates that there has been a significant political shift in Ethiopia since the applicant departed in 2014. The DFAT 2020 Country Information Report notes:[6]

    Ethiopia held its first multi-party elections in May 1995. The EPRDF won this and all other subsequent elections, bringing stability and economic growth but restricting political dissent and media and civic freedoms for most of its time in power. The EPRDF was disbanded in December 2019 … Ethnic Tigrayans, a minority, wielded outsized influence during most of the EPRDF’s rule, fostering resentment among the considerably larger Amhara and, in particular, Oromo ethnic groups. Meles Zenawi, a Tigrayan who led the removal of the Derg, served as prime minister from 1995 until his death in 2012. Zenawi was succeeded by his deputy, Hailemariam Desalegn, an ethnic Wolayta — Ethiopia’s first peaceful transition of power in modern times.

    Large-scale anti-government protests beginning in 2014, centred in Oromia and, later, Amhara states, prompted the declaration of a State of Emergency, under which over 20,000 people were arrested and 1,000 killed … Protesters demanded greater political rights, leading to the resignation, in February 2018, of Prime Minister Desalegn. His successor and current prime minister, Abiy Ahmed (appointed in April 2018), embarked on an ambitious reform agenda, and the human rights situation has improved significantly under his watch. Among other reforms, Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously-exiled opposition groups, expanded the space for civil society, and initiated reform of legislation used previously to arrest and prosecute government critics. In parallel, Abiy has pursued high-profile diplomatic initiatives across East Africa. He was awarded the Nobel Peace Prize in 2019 for his peacebuilding efforts with Eritrea, culminating in the signing of an agreement to formally end their war. Abiy is Ethiopia’s first prime minister from the Oromo ethnic group.

    [6]     2020 DFAT Report at [2.2]–[2.3].

25. According to the UK Home Office fact-finding mission of September 2019:

    On 2 April 2018 Dr Abiy Ahmed Ali became prime minister of the Federal Republic of Ethiopia. During his first few months as prime minister, he introduced a number of fundamental reforms which included: the de-proscription and return of exiled terrorist organisations – notably the Patriotic Ginbot 7 (PG7), the Oromo Liberation Front (OLF) and Ogaden National Liberation Front (ONLF) – and the pardoning and release of thousands of political prisoners. Reforms to the security sector were announced, including a commitment to end torture and the arbitrary use of the Anti-Terrorism Proclamation (ATP).

    The widening of the political space included revision of the media and civil society organisation laws, and the enacting of the electoral reform law to enable free and open national elections in 2020. Corruption and allegations of human rights abuse have been investigated, and some high-level officials have been replaced and prosecuted for past abuses. The process of holding those accountable and bringing them to justice is ongoing.

    Since the initial wave of reforms and actions of Dr Abiy, the country has entered a transition period and slow-down in the reform process. This has been met with impatience and criticism by some groups. In June 2019 there was an alleged attempted coup to which the government, taken by surprise, reacted swiftly and forcefully. The ATP was used to arrest and detain hundreds of individuals, including journalists and those associated with, and members of, a range of opposition groups. While some remain in detention, many have subsequently been released.[7]

    [7]     UK Home Office, Report of a Home Office Fact-Finding Mission - Ethiopia: The political situation, Conducted 16 September 2019 to 20 September 2019, Published 10 February 2020,

1. According to Human Rights Watch in their World Report 2020:

   Human rights reforms implemented by Prime Minister Abiy Ahmed during his first year in office were threatened in 2019 by communal, including ethnic, conflict and breakdowns in law and order.

   The June 22 assassinations of several high-level government officials, which the government linked to an alleged coup attempt in the Amhara region—as well as political unrest and communal violence in the capital, Addis Ababa, and Oromia following an incident with a popular Oromo activist and media owner, Jawar Mohammed—highlighted increasing tensions ahead of Ethiopia’s scheduled 2020 national elections.

   In June, the parliament voted to postpone an already overdue but highly contentious national census, despite the importance of the exercise ahead of the 2020 elections.

   Institutional reforms, notably around judicial independence and concrete measures to ensure truth, reconciliation, and accountability—all of which are key to dealing with heightened political and ethnic tensions—were limited.[8]

   [8]     Human Rights Watch World Report 2020 – Ethiopia, events of 2019, 14 January 2020,

2. The United States Department of State sets out that:

   Abiy’s assumption of office was followed by positive changes in the human rights climate. The government decriminalized political movements that had been accused of treason in the past, invited opposition leaders to return to the country and resume political activities, allowed peaceful rallies and demonstrations, enabled the formation and unfettered operation of new political parties and media outlets, continued steps to release thousands of political prisoners, and undertook revisions of repressive laws. On June 5, the parliament voted to lift the SOE [State of Emergency].[9]

   [9]     USDOS – US Department of State: Country Report on Human Rights Practices 2018 - Ethiopia, 13 March 2019.

3. This information is consistent with other reputable sources[10] in indicating that Prime Minister Abiy made large-scale changes such as releasing political prisoners, allowing those in exile to return without harm, de-proscribing armed groups and removing the State of Emergency. The country information indicates that the reform agenda slowed later in 2019 and early in 2020 but without changes being wound back significantly.[11]

   [10]    See ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation: Ethiopia: COI Compilation, November 2019, (accessed on 28 February 2020); UK Home Office, Country Policy and Information Note Ethiopia: Opposition to the government, UK Home Office, 15 July 2020,

   [11]    See UK Home Office, Country Policy and Information Note Ethiopia: Opposition to the government, July 2020,

4. There is specific information that opposition parties, including nationalist and federalist parties, are able to operate in Ethiopia in a way they were unable to prior to Abiy coming to office, including the de-proscribing of many parties, their ability to operate without harassment from the authorities, and the preparations in 2019 for elections in the latter half of 2020.[12] DFAT also notes that ‘[t]here are fewer reports of arbitrary arrests and detentions since the change in federal government in April 2018 and the lifting of the State of Emergency.’[13]

   [12]    ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation: Ethiopia: COI Compilation, November 2019, (accessed on 28 February 2020).

   [13]    2020 DFAT Report at 4.15.

5. DFAT notes that ‘the authorities have significant intelligence-gathering capabilities and are likely to be aware of major anti-government protest activity undertaken in other countries and online.’[14] However, DFAT assesses that ‘people who openly criticise the ruling party while they are outside of Ethiopia face a low risk of official harm on their return to Ethiopia’[15] and ‘under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds.’[16]

   [14]    2020 DFAT Report at p.48, 20200812101229

   [15]    2020 DFAT Report at p.48, 20200812101229

   [16]    DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.48 (2020 DFAT Report)

6. Despite the positive developments following Abiy coming to power: ‘Authorities detained persons arbitrarily, including activists, journalists, and opposition party members. There were hundreds of reports of arbitrary arrest by security forces.’[17] The UK Home Office, in July 2020, published a report in which they stated:[18]

   Historically, opposition party members and activists have been subject to arbitrary arrest and lengthy detention without charge, ill treatment, torture and extrajudicial killings. In July 2018 Prime Minister Abiy Ahmed admitted the use of torture and unlawful interrogation techniques on those detained under the previous regime, and by the end of 2018 over 60 high level government officials had been arrested on charges of torture and corruption. The process to bring those to justice is reportedly slow and not wholly effective however, there have been examples of cases being prosecuted for past abuses. Since April 2018 approximately 10,000 political prisoners have been released and/or granted pardons, including prominent politicians, journalists and human rights activists (see Political landscape, Arbitrary arrest and detention, Treatment of detainees/prison conditions).

   While some sources report hundreds of arrests for political reasons, particularly in Oromia, including low level supporters or sympathisers, they are usually held for a short time and then released, and the overall numbers of arrests have declined since April 2018. Additionally, while there are some reports of torture and ill-treatment of detainees and of harsh detention conditions which vary between settings, there is also evidence that torture is no longer routine or widespread (see Political landscape, Arbitrary arrest and detention, Treatment of detainees/prison conditions).

   [17]    United States Department of State, 2019 Country Reports on Human Rights Practices: Ethiopia, Arrest Procedures and Treatment of Detainees.

   [18]    UK Home Office, Country Policy and Information Note - Ethiopia: Opposition to the government, Version 4.0, July 2020, 2.4.8–2.4.9.

7. More recently, it appears that the war in Tigray, ethnic unrest and other factors have impacted the Abiy government’s tolerance of political dissent. After the announcement of the planned dates for the postponed election, there were reports of opposition parties complaining that they would find it difficult to take part in the election due to the jailing of party leaders and supporters.[19] The recent arrest of a Reuters cameraman is also indicative of a crackdown on media and dissent since the beginning of the war in Tigray.[20]

   [19]    BBC Africa, ‘Ethiopia poll plans continue despite opposition crackdown’, 22 December 2020, Ethiopia – BBC News.

   [20]    The New York Times, ‘Arrest of Cameraman in Ethiopia Signals Wider Crackdown’, 29 December 2020, Arrest of Cameraman in Ethiopia Signals Wider Crackdown - The New York Times (nytimes.com).

8. Delayed elections were held in July and September 2021. Abiy’s Prosperity Party was returned with a significant majority.[21] The elections follow repeated delays and the withdrawal of several opposition parties from the electoral process. Overall, the situation arising from Ethiopia’s political and ethno-national tensions remain volatile.

   [21]    Ethiopia election: Abiy Ahmed wins with huge majority – BBC News; Reuters, Officials count ballots after Ethiopia's election, new fighting reported in Tigray | Reuters, 23 June 2021.

9. In March 2021, the Danish Immigration Service reported that the initial positive changes following Prime Minister Abiy’s rise to power have not continued and the authorities have reverted to repressive methods in order to maintain law and order.[22]

   [22]    Danish Immigration Service Ethiopia: political opposition parties – recent developments March 2021

10. It is reported that all parties to the conflict in Tigray face the possibility of sanctions from the US government, as international observers fear that the conflict in Ethiopia may further destabilise an already fragile region. On 1 October 2021, Ethiopia expelled seven senior United Nations officials for ‘meddling’ in internal affairs, two days after the UN aid chief warned hundreds of thousands of people in the northern region of Tigray were likely experiencing famine due to the government’s blockade of aid.[23]

    [23]    ABC News UN officials expelled from Ethiopia for ‘meddling’ in internal affairs after Tigray famine warning 1 October 2021 UN officials expelled from Ethiopia for ‘meddling’ in internal affairs after Tigray famine warning - ABC News.

11. In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. On 18 July 2021, Abiy declared a ‘total war’ on the TPLF – contingents of Special Forces (professional soldiers) and local militia have been sent from all of Ethiopia’s regions (save Tigray) to encircle the ‘rebel region’.[24] The country information reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. It is reported[25] that thousands of people have died in the fighting with approximately 2 million people being displaced and more than 5 million relying on emergency food aid. Further, it has been reported that the military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[26] A July 2021 report[27] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well-documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post-November 2020 conflict,[28] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[29] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[30]

    [24]    Africa Confidential, ‘No good options on the table’, 22 July 2021.

    [25]    Reuters, ‘As Tigray war intensifies, Ethiopia parades new army recruits’ dated 28 July 2021,    The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021,    Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23, 27.    Ibid.

    [29]    The New York Times, ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 February 2021 updated 1 April 2021 by Declan Walsh,    Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia’s Tigray Region’ dated 5 March 2021, >

    On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[31] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[32]

    [31]    The Australian, ‘Ethiopia threatens to deploy “entire defensive capability” after rebel advances’, dated 7 August 2021,    Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, Ethiopia: “I don’t know if they realized I was a person”: Rape and sexual violence in the conflict in Tigray, Ethiopia - Amnesty International, Amnesty International, 10 August 2021.

12. Throughout 2021, the TPLF had a series of military victories and pushed south to occupy portions of the Amhara and Afar regions. The TPLF also allied with some ethnic Oromo forces, such as the Oromo Liberation Front (OLF). In November 2021, the TPLF had units within 300 km of Addis Ababa. It is reported that atrocities have been committed by various ethnically based parties to the conflict in the regions of Tigray, Amhara and Afar.

13. Recent reporting from the BBC,[33] Al Jazeera[34] and Bloomberg[35] indicates that the Ethiopian national forces of Prime Minister Abiy have recovered territory throughout December 2021. Attempts at negotiated settlement have not resolved the conflict.

    [33]    ‘Ethiopia Civil War: How PM Abiy led fight back against rebel advance’, 15 December, BBC, Ethiopia civil war: How PM Abiy led fight-back against rebel advance - BBC News

    [34]    ‘Tigrayan forces announce retreat to Ethiopia’s Tigray Region’, 20 December 2021, Al Jazeera,    ‘Ethiopia’s Abiy Has Civil War Edge as Tigray Rebels Retreat’, 21 December 2021, Bloomberg, >

    Human Rights Watch[36] reports that longstanding grievances and polarisation over historical and complex issues concerning land, politics and identity have led to violence among ethnic communities in Ethiopia. In 2019 and 2020, violence on 22 University campuses in Oromo and Amhara regions caused approximately 35,000 students to flee.[37] In January 2020, conflict erupted between the Amhara and Oromo groups over the use of the old national flag and decorations during the Orthodox Christian celebration of Epiphany and caused many casualties and loss of property.[38] In what has been viewed as a broadening of the Tigrayan conflict, on 11 August 2021 the OLA leader Kumsa Diriba announced that the group had formed an alliance with the TPLF and that there were plans among opposition groups to establish a ‘grand coalition’ against the government.[39] The coalition with the TPLF has been formed in opposition to the government forces despite the atrocities that were inflicted on Oromo people by the TPLF prior to 2018.[40]

    Amharas

    [36]    Human Rights Watch, ‘Ethiopia Events 2020’,    Ibid.

    [38]    Ibid.

    [39]    Associated Press, ‘Ethiopia Armed Group Says it Has Alliance with Tigray Forces’, Anna, Cara, 12 August 2021,    Ibid.

14. The country information[41] reports that the Amhara people are the second-largest ethnic group in Ethiopia representing 26.9 per cent of the population.[42] Their language, Amharic, is the official language of Ethiopia. The Amhara governed Ethiopia prior to the EPRDF coming to power in 1991, including during military rule and the era of the monarchy.[43] While they reside predominantly in Amhara State, ethnic Amharas are present throughout Ethiopia and are the largest ethnic group in the capital, Addis Ababa, where the applicant’s family resides. The population of Amhara in the capital is approximately 1.3 million.[44] Like the applicant, most Amhara are Orthodox Christian.

    [41]    2020 DFAT Report at p.23.

    [42]    2020 DFAT Report, p.23.

    [43]    2020 DFAT Report.

    [44]    2020 DFAT Report.

100.   The Amhara and Oromo felt marginalised by the Tigray under the EPRDF.[45] In 2014, protests initially broke out over discrimination against the Oromo population but spread to other groups including the Amhara. Protests initially occurred in the regional state Oromia in April 2014 due to the government’s Addis Ababa Integrated Regional Development Plan (known as the Master Plan) which sought the widening of the capital city’s jurisdiction over parts of Oromia.[46] The protestors opposed what they perceived to be Tigray domination of federal politics, economic and security institutions.[47] In 2016 a parallel protest wave began in Amhara. These protests initially concerned issues over land, namely the incorporation into the Tigray regional state of historically Amhara populated land, but also resentment of Tigray domination and neglect.[48] As a result, the two largest ethnic groups in Ethiopia converged in rejection of the Tigray-led federal government and its repressive methods.[49] The protests in the Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018.[50] DFAT assesses the arrest of Amharas during the 2014–18 anti‑government protests was not ethnically motivated but reflected the then federal government’s sensitivity to political opposition.[51]

[45]    2020 DFAT Report.

[46]    ‘Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.1.

[47]    Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.3; 2020 DFAT Report at p.23.

[48]    Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.4

[49]    2020 DFAT Report at p.23

[50]    2020 DFAT Report

[51]    ‘Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019, ‘Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.23

101.   The election of Prime Minister Abiy in 2018 raised the expectation of change as he promised an agenda of reform, preached unity and made peace with Eritrea.[52] In addition, since becoming Prime Minister, it’s reported that insecurity has intensified with an increase in communal violence. DFAT reports[53] that Oromo and Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression. The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military. Roughly a quarter of lower house members in federal parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers. As a result, DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity.[54]

[52]    ‘Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.1

[78]    UK Home Office Country Policy and Information Note Ethiopia: Background information, including internal relocation, September 2020, World Population Review: Addis Ababa,

[79]    2020 DFAT Report

[80]    See United States Department of State, Country Reports on Human Rights Practices for 2019 – Ethiopia, USDOS, 11 March 2020.

[81]    2020 DFAT Report at [3.3].

[82]    UK Home Office Country Policy and Information Note Ethiopia: Background information, including internal relocation, September 2020,    2020 DFAT Report at [3.10].

152.   The Tribunal finds, based on country information, that in Addis Ababa where Amharas are a majority and where racial harmony has been more durable, the chance of harm to a person on the basis of their Amhara ethnicity alone is remote.

153.   However, the Tribunal also accepts that recent events in Ethiopia and in particular the destabilisation caused by the conflict in Tigray has seen an increase in ethnic tensions and some violence including between the Oromo and Amhara people. The Tribunal notes that the DFAT country information indicates violence based on ethnicity is ‘a growing concern in regional states’ and it also describes ethnic violence occurring between the Amhara and Tigray people in the northern portion of Ethiopia.[84] However, country information suggests that the scale of ethnic violence taking place in Ethiopia has accelerated since the end of 2020, after publication of the latest DFAT country information. For example, On 30 August 2021, the German Federal Office for Migration and Refugees[85] reported of the deaths of 150 ethnic Amharas allegedly killed by the Oromo Liberation Front in Oromia.

[84]    ‘DFAT Country Information Report Ethiopia’, Department of Foreign Affairs and Trade, 12 August 2020, paragraphs 3.3 & 3.14.

[85]    Briefing Notes, BAMF - Federal Office for Migration and Refugees (Germany), 30 August 2021, p.4.

154.   The Tribunal notes that most of the examples of such violence citied by the applicant were in regional areas, particularly those bordering Tigray. He claimed that his [siblings] had been displaced by ethnic violence by Oromo youth on the outskirts of Addis Ababa. The only evidence from the family was from the applicant’s aunt, who does not live in Addis Ababa, and the 2016 statement from his brother, which did not refer to any ethnic persecution suffered by the family members. Given the lack of any corroborative evidence, the Tribunal does not accept members of the applicant’s family were displaced by ethnic violence by Oromo youth. The Tribunal does not accept the applicant faces a real chance of serious harm on that basis.

155.   From the country information[86] the Tribunal accepts that the situation in Ethiopia remains febrile, violent and volatile with considerable inter-ethnic tensions. It is feared by opposition parties that the Abiy government has turned against Oromo leaders, notably arresting Jawar Mohammed on terrorism charges, and returned to imperial-style domination. Meanwhile, Belete Molla, Chairman of the NaMA, accepted a position in the Prime Minister’s Cabinet and Amhara State President Yilkal Kefale has taken sides with the Prime Minister against the TPLF and Tigray people. The political and security landscape remains complex and fluid.

[86]    The Guardian. ‘As Ethiopia’s army declares daily victories, its people are being plunged into violence’ Alex de Waal (24 November 2020)  The Tribunal has taken into consideration the fact that the opposition parties in Ethiopia represent the varying ethnic groups in the country. In the case of the Oromo, the authorities have continued acting against the OLF and OLA. While politically motivated, the actions of the government have the effect of stoking ethnic tensions between the Oromo and the Amhara. As a consequence, the Oromo are agitating against the Amhara as evidenced by the attack on Amhara people in Oromia Regional State.

157.   The Tribunal has concerns regarding the deterioration of relations among distinct ethnic populations within Ethiopia and its impact on Amharas populations. Fighting in Tigray has since July 2021 spilled into the neighbouring Amhara region, leading to large‑scale displacement, with 3.7 million people in the region in need of humanitarian assistance. As recently as 11 January 2022, it was reported by the Addis Standard that the State President of Amhara is encouraging ‘the public (Amharas) [to be] ready to destroy the TPLF terrorist group’.[87] The situation in Ethiopia can be reasonably characterised as fast-moving and very unstable whereby the ethnic tensions are tipping the country to the point where violent civil conflict occurs in mixed communities such as Addis Ababa and multi-ethnic states and between provinces or states that are generally ethnically homogenous.

[87]    ‘Amhara State President says “public must be ready to destroy the terrorist group”’, Addis Standard, 11 January 2022.  The Tribunal accepts that the applicant is identifiable ethnicity is Amharic and that the applicant is from Addis Ababa, which is surrounded by Oromia Regional State and that the Amhara people are the largest ethnic group in Addis Ababa. The Tribunal accepts that the applicant is a genuinely critical of some aspects of the government’s agenda and human rights record and that as ethnic tensions have increased, he has become an active supporter of organisations associated with ethnically based political activity. In the Tribunal’s view, this elevates his risk of harm having regard to the applicant’s circumstances when considered cumulatively. This is addressed further below.

Harm due to religion

159.   The applicant also claimed to fear harm as a member of the Ethiopian Orthodox Church.  As noted above, there have been instances of violence targeting religious institutions in Ethiopia in particularly since 2018.  However, country information indicates such instances are rare.  Further, there was no information before the Tribunal to suggest that such attacks were as a result of systematic and discriminatory conduct against particular religious groups.  Further it was not clear that such attacks were for the essential and significant reason of religion but rather as part of ethnic unrest where ethnic groups closely associated with particular groups.

160.   Further, the applicant did not provide any credible evidence that he or his family members been targeted for his religious affiliations or beliefs in the past and the Tribunal does not accept that they have been.

161.   Having regard to the country information and the applicant’s circumstances, the Tribunal finds there is no real chance the applicant will be seriously harmed due to his religious beliefs or association with the Ethiopian Orthodox Church now or in the reasonably foreseeable future.

Cumulative assessment

162.   The Tribunal considered the applicant’s claims individually and cumulatively to assess what will happen if the applicant were to return to Ethiopia, now or in the reasonably foreseeable future.

163.   The Tribunal considers that the applicant has a cumulative profile of adverse factors, as a person who:

·Was born and would return to Addis Ababa where his immediate family remained;

·Is identifiable as an Amhara male of fighting age;

·Has real or imputed anti-government views which he would be likely to express in Ethiopia, including in support of Amhara ethnic causes;

·Worked as a university lecturer or tutor and has a commitment to working with Ethiopian youth.

164.   The Tribunal had some concern regarding the credibility of claims of the applicant’s activities with the Blue Party in Ethiopia. However, in terms of the risk for the applicant on return to Ethiopia, the Tribunal is satisfied the applicant genuinely holds political views opposed to some elements of the incumbent government’s agenda and that he would be likely to express such views on return to Ethiopia.

165.   The Tribunal accepts on the evidence that the applicant was a general supporter of opposition parties in Ethiopia and in Australia and has been involved in community movements advocating on political issues in Ethiopia. While most of that activity was directed towards the previous administration, the Tribunal accepts the applicant would continue to be vocal at a community level on issues of political significance to him on return to Ethiopia. However, the Tribunal does not accept that the applicant would face a real chance of serious harm on that basis alone. Country information notes in this respect that the political system in Ethiopia has opened up space for political opposition, particularly where such opposition is not directed towards ethno-federalist ideals. However, the Tribunal also accepts there is significant political instability in Ethiopia at this time and that the tolerance for political opposition, particularly from ethnically based political movements, is strained as are inter‑ethnic relations more broadly.

166.   In the Tribunal’s view, in an environment of increased political instability in Ethiopia, there is a real chance these aspects of the applicant’s profile will result in the applicant suffering serious harm. The Tribunal also considers that as a male ethnic Amhara of fighting age who holds political opinions critical of the ruling government, there is a real risk he would be singled out for adverse attention by authorities or non-state actors, including questioning and imprisonment. Even though the Tribunal considers these risk are lessened if the applicant returns to Addis Ababa, the Tribunal considers they remain a real risk.

167.   The Tribunal finds that if the applicant returns to Ethiopia now or in the reasonably foreseeable future, there is a real chance (not being a remote or far-fetched one) that he would be significantly physically ill-treated or killed by the State, by non-state actors that support the State, or other ethnic groups with armed militias within Ethiopia, or subject to societal violence against Amharas more generally due to being an ethnic Amhara who is active as a critic of government policies with respect to the Amhara and other human rights issues.

168.   The Tribunal accepts that the applicant holds political views about ethnicity in Ethiopia and may express these views if returned to Ethiopia. The Tribunal accepts these views may bring him to the attention of the authorities or ethnic groups opposed to the Amhara including the Oromo youth or the TPLF (in border regions). The Tribunal accepts that the applicant will be identified as Amhara if he returns to Ethiopia. The Tribunal also accepts that the applicant has been a general member and supporter of organisations critical of ruling governments in Ethiopia in the past.

169.   These factors individually may not lead to the applicant being harmed by the authorities or by non‑state actors. However, considering all the factors cumulatively, including heightened political instability, the Tribunal is satisfied that there is a real chance that the applicant will be seriously harmed. If politically active, even at a lower level, his ethnicity as an Amhara may provide a target for authorities. The Tribunal accepts, based on country information regarding conditions in prisons and detention facilities in Ethiopia, that detention presents a real risk of serious harm in the applicant’s circumstances.[88]

[88]    202 DFAT Report at [5.25]–[5.27].

170.   The Tribunal accepts that should the applicant return to live in Addis Ababa, now or in the foreseeable future, there is a real chance he will face ‘serious harm’, of the types noted above, from the authorities if he engages with Amharic separatist groups or from non-state actors including Oromo youth and the TPLF as required by s 5J(4)(b) of the Act, in that it involves a threat of significant physical harassment or ill‑treatment and a threat to his ability to subsist. The Tribunal considers that the instances of harm which the applicant may suffer constitute ‘serious harm’ having regard to s 5J(5) of the Act.

171.   The cumulative aspects of the applicant’s profile, as listed above, bring the applicant within membership of a particular social group as defined by the Act. The Tribunal is satisfied the criteria set out in s 5J(1)(a) and (b) of the Act are met.

172.   The law provides that it is not sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. Under s 5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country.

173.   The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is his real or imputed political opinions and ethnicity, as required by s 5J(4). The Tribunal assesses that the applicant, as an Amhara male of fighting age who holds views critical of the ruling government, faces a chance of being targeted by ethnically polarised Oromo non-state political actors, the TPLF, in the event that conflict breaks out in his home area and in other parts of Ethiopia. This heightens the chance of serious harm to the applicant. Further, the Tribunal is satisfied that this harm involves systematic and discriminatory conduct, as required by s 5J(4)(c) of the Act, in that the persecution which he fears involves systematic and discriminatory conduct that is deliberate or intentional and involves his selective harassment for reason of his real or imputed political opinion or ethnicity.

174.   Section 5J(2) of the Act provides that an applicant to whom effective protection measures are available does not have a well-founded fear of persecution. Section 5LA(1)(b) requires that the relevant State must be both willing and able to offer the relevant protection.  It is in this context that the Tribunal has considered whether effective protection measures as defined in s 5J(2) and s 5LA of the Act are available to the applicant. The State will be taken to be able to provide protection against persecution if the person can access the protection, the protection is durable, and, in the case of protection provided by a State, there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system. These are findings of fact, to be assessed based on the evidence before the decision‑maker.

175.   According to the most recent DFAT report, there are credible reports of abuses committed by federal and regional police forces, ranging from beatings and arbitrary arrest and detention to rape, torture and extrajudicial killings, including in the context of the 2014–18 protests in the Oromia and Amhara states and counterinsurgency operations against the ONLF in Somali State. There have been further reports of abuses by state actors in the context of the war in Tigray.  DFAT further assesses that government efforts to strengthen the independence of the judiciary from political interference and to combat judicial corruption are genuine, but this will be a long-term undertaking. Accordingly, the Tribunal is not satisfied that the applicant can access the protection of the Ethiopian State, nor is there a reasonably effective police force to protect him from political and ethnic violence of the types identified, for the purposes of s 5LA(2)(a) and (c) of the Act. Based on credible country information, the Tribunal is not satisfied that the state is willing and able to offer protection to the applicant. Given the current political and ethnic instability in Ethiopia, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the applicant in Ethiopia as provided by the state. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s 5J(2) of the Act.

176.   The Tribunal has considered if the applicant faces a real chance of persecution in all areas of Ethiopia as required by s 5J(1)(c). In the Tribunal’s view, given his cumulative profile, the applicant would face a real chance of persecution for reasons of political opinion and membership of a particular social group in all areas of Ethiopia given country information regarding the situation of Amahara people in areas were they are minority and the ongoing political instability in Ethiopia particularly in the Amhara region which hares a border with Tigray.

1. The Tribunal notes that s 5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic. In this case, the Tribunal is satisfied that the modification would require the applicant to modify his ‘political beliefs or conceal his true political beliefs’ and/or conceal his ethnicity, which the Tribunal is satisfied he would be unable to do, and therefore s 5J(3) does not apply.

178.   Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well‑founded fear of persecution for reasons of his cumulative adverse profile if he returns to Ethiopia, now or in the reasonably foreseeable future. The Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s 5J.

1. In considering whether he comes within the definition of a refugee, contained in s 5H, the Tribunal accepts that he is outside the country of his nationality and unable to return to it owing to his well‑founded fear of persecution. Therefore, he meets the criteria in s 5H(1). There is no information before the Tribunal to indicate that any of the exclusions set out in s 5H(2) apply to the applicant. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s 36(3) of the Act.

2. The Tribunal finds, therefore, that for the purposes of s 36(2)(a) of the Act, the applicant is a refugee.

181. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act.

DECISION

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

Simone Burford
Senior Member

ATTACHMENT - 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.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

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 the 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.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(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.

…

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• Immigration

• Statutory Interpretation

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• Procedural Fairness

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• Statutory Construction

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Citations

1613280 (Refugee) [2022] AATA 1120

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Cases Citing This Decision

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Cases Cited

8

Statutory Material Cited

0

Re Ruddock; ex parte Applicant S154/2002 [2003] HCA 60

WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198

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