1615482 (Refugee)

[2021] AATA 754

1615482 (Refugee) [2021] AATA 754 (2 March 2021)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615482

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE OF DECISION:  2 March 2021

DATE CORRIGENDUM

SIGNED:4 March 2021

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision record:

The ‘Date of Decision’ on the cover page of the decision record should read 2 March 2021 not 2 March 2020.

Simone Burford
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1615482

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE:2 March 2020

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 02 March 2021 at 4:04pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – opposition to ruling party – member of opposition group – participation in protests – discrimination based on ethnicity – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 8 September 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a [age]-year-old Ethiopian citizen who was born in [Tigray], Ethiopia. His family is from the Agame region of Tigray and he identifies himself as being ethnically Agame Tigrayan.[1]

   [1] The Tribunal notes there are various spellings of Tigrean/Tigrayan. For ease the Tribunal has generally adopted the spelling used by the Department of Foreign Affairs and Trade (‘Tigrayan’).

3. The applicant’s parents live in Mikelle, Tigray. He has lived in several areas of Ethiopia including Mekelle, Addis Ababa and the Amhara region. He had three siblings.  There is a sister living in Agame, Tigray, a brother who is deceased and another brother who he claims has been missing since 2017 but was living in Western Tigray prior to his disappearance.

4. He attended [University] graduating with a bachelor’s degree [in] July 2008. He joined [an educational] Institute in about May 2012 and completed his training in November 2012. He joined [a] Shipping Company in March 2013 as an [occupation] undertaking several six-month shipping contracts at sea.

5. He arrived in Australia onboard Marine Vessel [deleted] and was granted a Maritime Crew visa on 29 September 2015 and a further visa on 13 October 2015.  He made an application for a protection visa on 16 November 2015.

   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 his political opinion, as a supporter of the opposition ARENA Tigray for Democracy and Sovereignty (ARENA) and his Agame Tigrayan ethnicity.

7. He claims that he had experienced discrimination in Ethiopia from non-Agame Tigrayans, other ethnicities and persons from other political parties due to being an Agame Tigrayan and being an ARENA member. He claimed that ARENA is in opposition to the ruling Ethiopian People’s Revolutionary Democratic Front coalition (EPRDF) and that as a result of the discrimination he suffered he was unable to obtain high-level government positions or more beneficial employment.

8. The applicant stated that he took part in a protest [in] November 2005 regarding the May 2005 general election results and he was beaten by authorities and forced to sign a ‘blacklist’ in which he agreed to not take part in further political activity. He claimed he was suspended from the University for a month and as a result he could not study, did poorly on exams, and received an academic dismissal for one semester.

9. He claimed he joined ARENA in 2009. He would collect donations, distribute pamphlets and inform colleagues of party policies in the lead up to the 2010 and 2015 general elections. He claimed to have been beaten by police in April 2010 due to his political activities in breach of the blacklist. He claimed that while campaigning in April 2014 for the May 2015 for the general elections he and other members were attacked with stones by opposition party members. In order to avoid being detained or harmed he went to the capital, Addis Ababa.

10. He claimed in April 2015 he attended a protest in Addis Ababa in Meskel Square, in protest against the killing of Ethiopians by Islamic State (IS) in Libya. He claimed that he was beaten by police and they found his ARENA membership card. He claimed that following the protest they tried to detain him and he was forced to hide with friends and family members in and around Addis Ababa and Mikelle until obtaining further work as a Maritime Crew member in July 2015, which meant he was able to leave Ethiopia. He claimed he was unable to return to Ethiopia as the ruling party would attack him due to his political membership, political activities and for not abiding by the 2005 blacklisting. He also claimed to experience discrimination, including in employment, due to being an Agame Tigrayan, by other ethnicities and the Ethiopian government.

11. He also complained about his treatment on-board the maritime vessel on which he was working when he arrived in Australia.

    Submissions to the Department

12. The applicant submitted to the Department a typed statement in English titled ‘My Detail Previous History – Pact C Question 90’. The applicant also submitted the following documents to the Department:

    ·Identity documentation.

    ·An ARENA membership card (original copy and translation) noting an issuing date of [date] March [2010] ;

    ·A letter (original copy and translation) from ARENA dated [November] 2015 titled ‘Subject letter of appreciation and support’ certifying that the applicant is a member of ARENA, commencing in September 2009 . The letter notes that the applicant had been dismissed, because of his ARENA membership, from his job at ‘[Company 1]’ and he had left the country.

    ·Three untranslated receipts said to be receipts of ARENA membership payments.

    ·Temporary Certificate of Graduation from [the] University dated [July] 2000 and student record.

    ·A work experience certificate (in English and Amharic) from [Company 1], which said the applicant worked for the company from [August] 2008 to [June] 2010. Significantly, it indicates the applicant was employed for 10 months and under ‘reason for termination’ it states ‘at his own request‘.

    ·Documents relating to the applicant’s work including ‘references on sailing’ detailing the applicant’s shipping work, booking details of the applicant’s [Airlines] flight from Addis Ababa [in] July 2015, letter of guarantee (‘OK to board’) for the applicant and another person from the applicant’s shipping agents to [the] Airlines and a medical requirement form.

    ·A Grades Sheet from the [Institute] for the course ‘[deleted]’.

13. The following documents were referred to in the delegate’s decision but not on the Tribunal’s copy of the file.  A copy of these documents was provided by the applicant following the second hearing (following a request by the Tribunal for the applicant to provide copies if he could locate them):

    ·Letter of support from [an official] from [Ethiopian organisation] in Western Australia Inc dated [March] 2016, indicating support for the applicant. The letter notes the EPRDF has been committing human rights violations in Ethiopia and that ‘we have heard from [the applicant] that he has been harassed, beaten and finally became wanted by the ruling party because of his political views.  We heard from him he has been punished for not accepting the offer to be member of the EPRDF’.  The letter states that ‘what we heard from [the applicant] could possibly be true as it has happened and is happening now to millions of Ethiopians’.

    ·Letter from [Mr A] and [Mr B] dated [March] 2016 supporting the applicant and indicating the writer’s belief that the applicant would ‘certainly face persecution’ if returned to Ethiopia.

    ·Letter from [the] applicant’s cousin, dated 2 March 2016, noting the applicant had been living with him ‘hiding from the government securities here in Mekele’.  It notes he attended a protest in 2015 and was being searched for by ‘cadres’.

    ·Letter from [an official], [second Ethiopian organisation], (undated) providing an account of the applicant’s history as provided by the applicant and attaching country information in relation to activities of the EPRDF Government.

14. He also submitted country information regarding human rights problems, including treatment of the opposition supporters who demonstrated against the government in April 2015[2], and a handwritten notification of incorrect answers, amending his address and employment history.

    The interview

    [2] US Department of State Ethiopian Human Right Reports for 2014, 2013 and 2010, ‘Djibouti: An open letter from an Eritrean refugee’ 175 144/djibouti-an-open-letter-from-an-eritrean-refugee; ‘Ethiopia/ Djibouti: Refoulment/ fear of torture’ Amnesty International, 20 January 1998, ‘Ethiopian Amnesty International Report 2014/15’, Amnesty International, 25 February 2015, ‘Ethiopian Amnesty International Report 2015/16’, Amnesty International, ‘Human Rights in Ethiopia’ Wikipedia, Human Rights Watch Ethiopia Country Summary January 2014.

15. The applicant attended an interview with the Department on 4 April 2016. The delegate notes that the claims and incidents raised in the interview were consistent with the information stated in the applicant’s amended written statement of claims.

    The delegate’s decision

16. On 8 September 2016, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision with his application for review. 

17. The delegate accepted that the applicant was of Tigrayan ethnicity, originating from the Agame area, which now forms part of the Misraqawi zone of the Tigray region. However, the delegate did not accept the applicant’s claims with regard to his political activity or treatment as a member of ARENA.

18. The delegate found the applicant was using poor academic performance to create a profile as a long-time political activist who would be placed on a blacklist. Concerns regarding the lack of detail provided by the applicant with respect to his political activities and inconsistencies or authenticity issues in his ARENA membership documentation led the delegate not to accept the applicant was a member of ARENA. The delegate did not accept that the applicant engaged in political activities with ARENA, including during the 2015 elections, or that he was forced to flee Addis Ababa, based on inconsistencies between his account of this event and country information and the delegate’s rejection of his claim to be a member of ARENA.

19. The delegate placed little weight on the other supporting documents provided by the applicant given concerns regarding the authenticity of documents offered by the applicant generally.

20. 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

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

22. The applicant attended hearings before the Tribunal on 19 March 2020 and 21 September 2020 to give evidence and make submissions in support of the review application. 

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. The applicant had indicated in his response to the hearing invitation that he wished to call two witnesses in support of his application, [Mr C] and [the applicant’s cousin], however, no statements had been provided from those witnesses prior to the initial hearing.  The Tribunal indicated the applicant should submit written statements from any witness he was asking the Tribunal to contact to outline their evidence and to enable the Tribunal to determine if the witnesses would be contacted to give evidence at the hearing.

24. The second hearing was held in person, once in-person hearings recommenced at the Perth registry. In response to the invitation to attend the resumed hearing the applicant indicated he did not wish to call any witnesses and no statements from the previously identified potential witnesses were provided prior to the hearing.

25. In December 2017 the applicant submitted a form indicating he was represented by a registered migration agent, however the form was not signed by the agent. The applicant was invited by the Tribunal registry to submit a signed form but did not do so. Accordingly, correspondence continued to be sent directly to the applicant.  No material or communication was received from the identified agent and at the time of the hearing the applicant was unrepresented and attended the hearing alone.

26. The hearings were conducted with the assistance of interpreters fluent in the English and Tigrinya languages.

27. Prior to the first hearing 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):

    ·A letter to the Tribunal dated 4 March 2020 from [Mr D], [Church 1], Perth, noting the applicant [was] ‘an extremely responsible and committed community leader/representative’. The letter notes the applicant ‘has been a strong community advocate and has given generously of his time and skills to further advance the settlement, empowerment and participation of Horn of Africa migrants in Western Australia’.

    ·Letter dated 25 February 2020 from [the] Human Resources Manager, [company name], confirming the applicant’s employment with the company since April 2017 and noting he is a ‘reliable and conscientious employee’.

    ·Written submissions from the applicant addressing in detail matters raised in the delegate’s decision and ‘the current perilous political development in Tigray region’.

28. Prior to the second hearing the applicant submitted the following documents:

    ·A letter (copy of original and translation, no letterhead) from [Mr E], [ARENA], dated [August] 2020, regarding the applicant’s membership of ARENA, including an account of the applicant’s work with ARENA.

29. Following the second hearing the applicant provided approximately 250 pages of post-hearing submissions as follows:

    ·Letter from [a doctor], dated 5 October 2020 noting that the applicant ‘has a lot of stress, worries, tension headache and sleep problems because it won’t be safe for him to go back to his country’, noting that the applicant ‘comes frequently to our practice to see different doctors for management of these symptoms’.

    ·Letter dated 8 October 2020, signed by several members of [a third Etiopian organisation] in Western Australia, noting the applicant is the Treasurer of the organisation and describing his role with the organisation.  The letter  notes that ‘if the Australian Government sent him back to Ethiopia, we assure you that he will be executed, because we have people within our association who lost their family member in the similar situation’ (signed by [Mr C], [and two others]).

    ·Letter from the applicant’s partner[dated] 8 October 2020, noting that the couple have been in a relationship for three years and the applicant is a ‘role model and father figure’ to her son.

    ·Letter from [Mr C] dated 9 October 2020, indicating [Mr C] had been asked to provide a reference for the applicant indicating [Mr C] is an ‘ARENA party staunch supporter and vigorous activist’. [Mr C] notes he returned to Ethiopia in 2018 and 2019 and observed that ‘still the ARENA party active members and staunch supporters were being subjected to summary political persecution/purge, arbitrary incarceration, ferocious interrogations, harsh physical punishment (beating), intimidation, harassment, and systematic social exclusions or discriminations’.  The letter notes that political divisions in Tigray meant the Prime Minister was ‘bent on mercilessly persecuting, mistreating, threatening, alienating and margilising innocent Tigray people’ in Ethiopia.

    ·‘Witness supporting statement’ from [name deleted] dated 7 October 2020 noting the writer had travelled to Ethiopia from December 2019 to December 2020 and had ‘noticed a lot of unexpected bad change such as an economic downturn and political unrest between ethnic groups of the country under the current government’, particularly in Tigray. The letter notes that the Tigrayan people ‘are now seen as anti-government and the killing and arresting of innocent people is continuing on a daily basis…civil war is hovering around the country with the central government treating to fight the TPLF (Tigray People Liberation Front) and its political factions such as ARENA’ noting the writer feared the applicant would be ‘in great danger of getting arrested and even killed for who he is and what he stand for politically’.

    ·Country information.[3]  Country information is considered further below.

    ·Approximately 20 photographs which feature the applicant and his partner and step-son in various locations.

    [3] ‘Ethiopian parliament votes to cut ties with Tigray region leaders’, Aljazeera, 7 October 2020; ‘Ethiopia Opposition rethinks election campaign after candidate killed’, VOA News, 1 March 2010; ‘Arena’s Abraha Desta reportedly escaped kidnapping attempt’, Ethiopia Observer, 10 August 2020; ‘Arena opposition party executive member attacked in Tigray, north Ethiopia, 18 February 2020; ‘Why there are fears that Ethiopia could break up’, BBC, 4 September 2020; Ethiopia: COI Compilation, Australian Red Cross; ACCORD, November 2019.

30. In submissions to the Tribunal, the applicant disputed findings of the delegate and claimed that he is at risk of harm from the TPLF in Tigray due to his political association with ARENA and cannot return to Ethiopia ‘as long as the regime perpetuates on political power’.  The applicant denied he was dismissed from the University in Mikelle for poor academic performance and maintained that he was reprimanded and placed on a blacklist due to his participation in a protest at the university involving around 2,000 students in 2005.

1. The applicant claimed to be a high profile member of ARENA.  He cited instances of harm to which prominent members of the ARENA party had been subjected including denial of access to basic living necessities and medical treatment on equal footing to other Ethiopians, limiting their access to medical services, barring them from Government jobs and causing them to be socially ostracised.

2. The applicant claimed that inconsistencies in documentation regarding the date of his ARENA membership were due to it taking six months for the party to conduct checks prior to confirming his membership. He claimed his brother, who had previously supported him, disappeared in 2017 and his whereabouts in unknown.

3. The applicant claimed that following the disbanding of the EPRDF and the formation of the Prosperity Party under Prime Minister Abiy, the TPLF consolidated power in Tigray and the regional government ‘embarked on purging, mopping up, hunting down, arresting, harassing and intimidating the ARENA party members’ who collaborate with the Abiy government.  He claimed that ‘nationwide Universities have become epicentre of human butchering and carnage where higher education students are ethnically murdering and massacring one another’. The applicant denied seeking protection for economic reasons, claiming that he had been enjoying ‘very decent, comfortable living standard, allowances, fat/superfluous salary and privileges’ in Ethiopia and is only fearful of return due to a risk of persecution.

4. At the first hearing he indicated that his brother went missing in 2017 and he thought it was to do with his claims.  At the second hearing he said that he thought his brother had bribed [someone] in 2015 to enable the applicant to leave the country and escape from the Tigrayan authorities.

5. 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).[4] 

   [4] DFAT Country Information Report: Ethiopia, 12 August 2020.

   ISSUES

6. 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.

7. The issue in the review is whether the applicant has a well-founded fear of persecution in Ethiopia due to his actual or imputed political opinion as a supporter of the ARENA Party, due to his Tigrayan or Agame Tigrayan ethnicity or for any other reason, or whether complementary protection provisions otherwise apply.

   DECISION MAKING FRAMEWORK

   Criteria for a protection visa

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

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

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

11. Under s.5J(1) of the Act, 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–5LA of the Act, which are extracted in the attachment to this decision.

12. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Credibility assessments

13. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5]

    [5] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [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; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

14. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[6]  Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[7]

    [6] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

    [7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

15. 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.[8] 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.[9]

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

    [9] 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.

16. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[10] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[11]

    [10] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

    [11] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

17. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held.  If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[12]  The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.

    [12] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

18. In considering issues of credibility, the Tribunal has also had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].

    Mandatory considerations

19. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.  The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report[13] which is the most recent DFAT country report prepared for this purpose.

    [13] DFAT Country Information Report: Ethiopia, 12 August 2020.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

21. 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.

    Analysis, reasons and findings

22. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Harm due to political opinion

23. The Tribunal had concerns regarding the credibility of some aspects of the applicant’s claimed political activities in Ethiopia. Some of these concerns reflect matters raised in the delegate’s decision, including the applicant’s claimed membership of, and profile with, ARENA and his claimed persecution by the authorities due to his entry on a blacklist following his participation in a student protest in 2005. 

24. With respect to the applicant’s participation in a student protest in 2005, the DFAT report notes that there were protests following gains by opposition parties following the 2005 elections, where opposition parties disputed election results favouring the incumbent EPRDF government.[14] Large-scale protests in Addis Ababa turned violent and resulted in causalities and arrests among protestors and opposition leaders. While DFAT refers to protest activities in Addis Ababa, the Tribunal accepts on the basis it is plausible that there may have been protests elsewhere, including on university campuses.

    [14] DFAT 2020 Country Information Report at [2.36]; See also Ethiopia COI Compilation (submitted by applicant) at page 16 citing DFAT 2017 Country Information Report: Ethiopia, 28 September 2017, page 8.

25. The Tribunal accepts the applicant was at university at that time and that on that basis it is plausible that he was involved in a protest on campus in 2005.  The Tribunal also accepts that police may have dispersed the protest and that the applicant may have been reported to the university as a result.  The Tribunal also accepts on the basis that it is plausible, that the applicant was suspended from classes for a month.  However, as discussed with the applicant, the Tribunal does not accept, based on the country information and the evidence, that the applicant was placed on a blacklist which resulted in him being discriminated with respect to government services or employment or later identified by authorities following the incident.  The reasons for the Tribunal not accepting this claim are that there was no evidence to suggest the applicant had been a high profile organiser of the protest or would otherwise have drawn the attention of authorities as a political activist such as might give rise to a blacklisting of the type claimed by the applicant.  This is consistent with a suggested one month suspension and later return to academic study with no disruption to the completion of his degree.  The Tribunal does not regard it as plausible that the applicant would be placed on a government blacklist with the effect of restricting his access to government services and employment, yet able to complete his university degree without further disruption. 

26. Further, the available evidence did not support the applicant’s claim he was discriminated against in employment following the 2005 incident for reasons of his actual or imputed political opinions. The applicant claimed he had to leave Mikelle to get a job in Addis Ababa as a result of political persecution because he had been placed on a blacklist.  However, there was no evidence to corroborate this claim.  Had the applicant been placed on a blacklist by the Ethiopian authorities, it is not clear why moving to the capital would have avoided scrutiny in this regard. Further, given the applicant’s poor to average grades at university (with a cumulative grade point average of 2.2) the Tribunal regards on the evidence that he initially struggled to obtain employment in Mikelle for reason of his qualifications. In this regard the Tribunal notes that he graduated in July 2008 and commenced work in August 2008 timing which does not suggest he had significant difficulty obtaining employment or consistent with being ‘blacklisted’.  Further, he submitted to the Tribunal that he did not seek protection for economic reasons, claiming that he had been enjoying ‘very decent, comfortable living standard, allowances, fat/superfluous salary and privileges’ in Ethiopia.  This was not consistent with his claims to have suffered discrimination in employment due to his political affiliations, either as a blacklisted student or an ARENA member.  The Tribunal does not accept he was discriminated against or persecuted in his employment for these reasons and regards that this casts doubt on his claim to have been placed on a government blacklist such as would place him at risk of harm on return to Ethiopia.

27. The Tribunal accepts that the applicant moved to Addis Ababa for employment reasons after he finished university in 2008.  As noted earlier, he claims to having a ‘very comfortable living standard’ while in Ethiopia.  The Tribunal accepts this to be the case. Although the applicant changed jobs several times between 2009 and 2015, the Tribunal does not accept this was due to political persecution.  As noted above, the Tribunal does not accept the applicant was on a blacklist.  Further, although the applicant claimed to have suffered employment discrimination on this basis in Mikelle and Addis Ababa, documents related to his employment at [Company 1] indicate he left that company of his own choosing.

28. The Tribunal also had concerns with some aspects of the applicant’s claims to be a member of ARENA. In particular, the Tribunal was concerned about the vaidity of the membership card the applicant offered as evidence of his membership.  The Tribunal notes that the applicant claims to have had his membership card confiscated by authorities following his participation in an anti-government protest in 2015 in Addis Ababa.  The delegate details concerns about this document.  The Tribunal’s concern was that when the applicant was asked how he had been able to produce a membership card when this had been confiscated in 2015, he said that he had reported the loss of the card to the party and they had sent him a new card in Australia.  The difficulty with this claim is that the card issue date is 2010 and its expiry was 2015, yet the applicant claims to have been issued the card sometime after arriving in Australia in October 2015 and having the document translated in December 2015.  The Tribunal regards it as implausible that ARENA would issue the applicant a membership card late in 2015 to Australia with an issue date five years prior and an expiry date of 2015.

29. As noted above, the applicant has presented an ARENA party membership card dated 2010. He has also provided receipts he said were for party membership though they were untranslated.  He provided two letters said to be from the ARENA party from 2015 and 2020.  The 2015 letter stating that the applicant participates in political activism, that they had had members beaten and persecuted and the letter asked for cooperation. The second letter was dated August 2020 and was purportedly provided by the head of Arena public relations.  The name correlates with a person reported to hold that position,[15] however the letter was not on letterhead, causing the Tribunal to have concerns regarding its authenticity. The applicant told the Tribunal the letter was written in [Mr E]’s personal capacity.

    [15]  Ethiopia: Arena opposition party leader attacked in Tigray (borkena.com).

30. While the Tribunal had some concerns with inconsistencies in the documentation and the applicant’s account of his activities in Ethiopia, in general the documents lend support to his claims to have been a member of the ARENA party. He has provided copies and translations and the Tribunal accepts that the ARENA letters are genuine and support his membership of ARENA.

31. The Tribunal is prepared to accept that the applicant was a supporter of ARENA and a general member of the organisation.  The Tribunal makes this assessment based on the applicant’s backgound and as a Tigrayan from Mikelle, his general level of knowledge of the organisation, including their current membership of the Medrek party, and based on the political views he expressed at the hearing, which were consistent with the Arena agenda. On this basis, the Tribunal accepts that the membership card may be genuine and that the applicant may have engaged in low level political activities supporting ARENA during elections. The Tribunal also accepts that he may have attended the 2015 rally in Addis Ababa denouncing the ISIL attacks on Ethiopians in Libya.  However, for the reasons given above, the Tribunal does not accept that the applicant’s ARENA membership card was confiscated at that rally by authorities or that he was identified by or pursued by authorities following the rally on that basis. 

1. In this regard, the Tribunal notes the applicant claimed to have come to Addis Ababa from Mikelle and to have been staying with his uncle.  He said the police came to his uncle’s house two days after the protest in 2015 looking for him but he was hiding at a friend’s house.  However, given he was at that point based in Mikelle, he was unable to provide a credible explanation for how police had known to look for him at his uncle’s house even if they had possessed his identification details. In this regard the Tribunal notes the applicant made no reference on his application to having an address in Addis Ababa during this period but listed his address as being in Mikelle noting that he provided a detailed address list including several short listed stays in Addis Ababa in 2011 and 2012.

2. Further, the Tribunal notes the applicant was able to leave Ethiopia without incident several months after the event, in July 2015. While he claimed before the Tribunal that he was able to do so because his brother paid a bribe to Ethiopian Airlines, the Tribunal does not accept that to be the case.  Firstly, this was a claim the applicant did not raise before the delegate, raising concerns about the credibility of the claim.  Further, the evidence he provided indicates he travelled from Ethiopia on a [flight] organised by his employer and that he exited the country with another person whom it can be inferred was also an employee of the shipping company. Giving the applicant the benefit of the doubt and accepting that his brother has lost contact with the family for some reason, the Tribunal does not regard it as plausible that the applicant’s brother would disappear some two years after the applicant’s departure for a reason associated with the applicant’s departure in 2015, particularly in circumstances where the applicant left under the ‘sponsorship’ of a shipping company employing him and where he did not report any issues associated with his exit to the delegate or to the Tribunal.

3. While the Tribunal had concerns about the credibility of some aspects of the applicant’s claims, overall and giving the applicant the benefit of the doubt, the Tribunal accepts that he holds views opposed to the TPLF in Tigray and more broadly that he is opposed to the politicisation of ethnicity in Ethiopia and may express these views if returned to Ethiopia.  The Tribunal also accepts that notwithstanding his opposition to the TPLF, he is similarly opposed to the military intervention of the Abiy Government to overthrow the TPLF and install an alternate regime in Tigray. 

4. The applicant has travelled extensively from 2010-2015 as an employee for the shipping company including to [countries] in 2013, and [countries] in 2014.  The Tribunal discussed with the applicant why he did not claim protection in any of the countries visited on these earlier trips and he said that before 2015 there was a low risk but after 2015 there was a high risk and this was the first time he visited Australia.  As noted above, the Tribunal does not accept the applicant was identified by police in the 2015 demonstration, because it does not accept his Arena membership card was taken on that occasion, because it does not accept that he was on a blacklist given his ability to operate freely for the 10 years prior to the 2015 demonstration and because he was able to leave the country without drawing adverse attention from the authorities.

5. Further, if the applicant’s claims to be on a blacklist were genuine and he had been involved as an active Arena member since 2010, it is reasonable to infer that he would have been at risk on that basis and to have had grounds for seeking protection during his earlier travels.  This casts doubt on the credibility of the applicant’s claim to have feared harm from authorities due to his political views at the time he left Ethiopia in 2015 and later sought protection in Australia in 2016.

6. The Tribunal notes that the statements provided from a number of the witnesses in Australia seek to support the applicant’s account of his activities in Ethiopia but also attest to his good character and commitment to the Ethiopian community here.[16]  With respect to events in Ethiopia, the letters indicate that these statements rely on accounts of events provided by the applicant and as such the Tribunal does not place significant weight on those statements as evidence of the events themselves.  However, the Tribunal places weight on the statements to the extent they support the applicant’s claims to be a committed member of the Ethiopian community in Australia. ^[17]  The applicant provided a number of statements falling into this category which support both his general character and his contribution to the Ethiopian community and [Church 1].

   [16] See letter from [Ethipian organisation] in Western Australia Inc, dated [March] 2016; letter of [Mr A] and [Mr B] dated [March] 2016; letter of [a second Ethipian organisation] (undated but submitted prior to primary decision).

   [17] See letter from [Mr D] dated 4 March 2020; Letter of [a third Ethiopian organisation] in Western Australia, dated 8 October 2020.

7. 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 2015. The DFAT 2020 Country Information Report notes[18]:

   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.

   [18] DFAT 2020 Country Information Report at [2.2]- [2.3].

8. 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.[19]

   [19] 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,

9. 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.[20]

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

10. 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].[21]

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

11. This information is consistent with other reputable sources[22] in indicating that 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 2020 but without changes being wound back significantly.[23]

    [22] 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,

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

12. 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.[24]  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.’[25]

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

    [25] DFAT Country Information Report Ethiopia, Department of Foreign Affairs and Trade, 12 August 2020, 4.15.

13. 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.’[26] The UK Home Office, in July 2020 published a report in which they stated:[27]

    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).

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

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

14. There are indications that the dispute between the Abiy Government and the TPLF also had the effect of causing a further crackdown on political dissent in Tigray by the TPLF including against the Arena Party leadership and members.[28]

    [28] Ethiopia: Arena opposition party leader attacked in Tigray (borkena.com).

15. More recently, it appears that the war in Tigray (discussed further below), ethnic unrest  and other factors have impacted the Abiy Government’s tolerance of for 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.[29]  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.[30]

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

    [30] 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).

16. While the applicant’s early claims focussed on the EPRDF, his evidence at the hearing and in submissions before the Tribunal focussed on harm from the TPLF, which at the time of the hearing was the regional government in Tigray.  The Tribunal accepts this is plausible given the dominance of the TPLF in the EPRDF at the time the applicant made his original claims but the subsequent disbandment of the EPRDF and formation of the Prosperity Party under Abiy - without the inclusion of the TPLF.  However, the circumstances prevailing in Ethiopia at the time of decision are somewhat more complicated with respect to these claims as the position of anti-TPLF Tigryans is more unclear in the current environment.

17. The interim regional government installed by President Abiy in November 2020 has invited opposition parties, including Arena, to be included in the cabinet of the new government.[31]  The position of the ARENA leadership to this invitation is not clear on country information before the Tribunal.  However, the Tribunal notes that the TPLF forces have made the disbandment of the interim government a condition of peace talks.[32] Several veteran and retired TPLF leaders have been killed or captured, but the party's more active and military leaders are still fighting.

    [31] News: Tigray interim admin CEO says Mekelle gets new mayor, urges civil servants to resume work and cautions door-to-door search for unlawful firearms begins today - Addis Standard.

    [32] ‘Tigray's ousted leaders 'set conditions for talks'’, BBC News, 20 February 2021. >

    The situation of Tigrayans generally is considered further below.

    Harm as an ethnic Tigrayan or Agame Tigrayan

18. The applicant also claims to fear harm on the basis of his ethnicity. He claims that he is Tigrayan, specifically of Agame Tigrayan ethnicity, which he says places him at risk of persecution on return to Ethiopia. The delegate accepted the applicant was Tigrayan based on his facial scarring, personal history and Tigrinya language skills.  The Tribunal also accepts the applicant is Tigrayan for these reasons. 

19. The delegate accepted the applicant was from the Agame area of Tigray.  However, the delegate did not accept that Agame Tigrayans are identifiable as a subgroup of Tigrayans or that they are discriminated against on this basis.  There was similarly no country information before the Tribunal to support the applicant’s claim that Agame Tigrayans would be singled out for distinct persecution from other Tigrayans and the Tribunal does not accept that they would be.

20. The DFAT report states that ‘[w]ith the exception of the ethnic Anuak people of Gambela State, most ethnic groups in Ethiopia are indistinguishable by their physical appearance, partly as a result of inter-marriage.’[33] The DFAT report also says:

    Different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a ‘non-factor’ in Addis Ababa — most people consider themselves from Addis Ababa as opposed to a particular ethnic group. Violence based on ethnicity is not common in Addis Ababa, but is a growing concern in regional states.[34]

    [33] DFAT Country Information Report Ethiopia, Department of Foreign Affairs and Trade, 12 August 2020, p.21, 20200812101229.

    [34] DFAT Country Information Report Ethiopia, Department of Foreign Affairs and Trade, 12 August 2020, p.21, 20200812101229.

1. According to the DFAT report ‘[t]he largest concentration of Ethiopian Tigrayans outside of Tigray State at the time of the 2007 census was in Addis Ababa (nearly 170,000).’[35]

   [35] DFAT Country Information Report Ethiopia, Department of Foreign Affairs and Trade, 12 August 2020, p.23, 20200812101229.

2. The DFAT report goes on to say:

   There is a growing sense among Tigrayans that their community is under threat. Anti-Tigrayan sentiment has become more overt since 2018, and hate speech against ordinary Tigrayans has increased in this time.

   …

   DFAT assesses that, excluding in Addis Ababa, ethnic Tigrayans face a moderate risk of violence in rural parts of the states where they constitute a minority. DFAT notes most Tigrayans reside in Tigray State, which is majority Tigrayan and where the central government wields less influence. DFAT assesses Tigrayans face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector.[36]

   [36] DFAT Country Information Report Ethiopia, Department of Foreign Affairs and Trade, 12 August 2020, p.23, 20200812101229.

3. A February 2019 journal article in the Journal of Ethnic and Migration Studies (JEMS), based in part on fieldwork conducted in Addis Ababa, states:

   During my stay in Ethiopia, it became clear to me that many people in Addis Ababa, and beyond, perceived Tigrayans as a distinct and privileged group. Many expressed these opinions in conversations that ranged from inquiries about conditions in Tigray to heated discussions about Tigrayan political dominance and their perceived plot to deprive the rest of the country of power and resources.[37]

   [37] 'Ethnicity across regional boundaries - migration and the politics of inequality in Ethiopia', Breines, Markus Roos, Journal of Ethnic and Migration Studies (JEMS), Routledge, 14 February 2019, p.7, 20190709103451.

4. The article goes on to say:

   Even though the representations of Tigrayans as a privileged group draw upon the same problematic assumption that the government employs in its rigid and fixed approach to ethnicity, and fail to acknowledge the inequalities and varying ethnic identities among people from and in Tigray, assumptions of ethnic-based inequality and Tigrayan advantages were common in Addis Ababa.[38]

   [38] 'Ethnicity across regional boundaries - migration and the politics of inequality in Ethiopia', Breines, Markus Roos, Journal of Ethnic and Migration Studies (JEMS), Routledge, 14 February 2019, p.7, 20190709103451.

5. However, as noted above the situation for Tigrayans has become more complicated since the outbreak of conflict between the Ethiopian government and the regional TPLF government in November 2020.

6. On 4 November 2020, the Abiy government ordered a military offensive in Tigray, accusing the TPLF of attacking government military bases and trying to steal artillery and weapons.[39]   After government troops seized the regional capital, Mekelle, on 28 November 2020, Prime Minister Abiy stated “we have completed and ceased the military operations.”[40] However,  while federal forces seized control of Tigray’s main towns, TPLF forces continue sporadic fighting with the former leader declaring they were committed to extensive resistence.[41]

   [39] Ethiopia's War With Its Tigray Region Explained - The New York Times (nytimes.com), Published Nov. 5, 2020 Updated Feb. 12, 2021.

   [40] Ibid.

   [41] Ibid.

7. A November 2020 British Broadcasting Corporation (BBC) article says that some Tigrayans in Ethiopia have said they ‘have been harassed, detained or discriminated against since fighting began in their home region on 4 November.’[42] The report goes on to say that “… people who have spoken to the BBC have said that they have been singled out because of their ethnicity rather than anything they may have done … If the conflict is short-lived then concerns about ethnic tensions may go away but if it proves to be protracted then there are fears that life for Tigrayans outside Tigray may become more difficult.”[43]

   [42] ‘Ethiopia's Tigray crisis: Fears of ethnic profiling stalk conflict’, British Broadcasting Corporation (BBC), 25 November 2020, 20201204162117.

   [43] ‘Ethiopia's Tigray crisis: Fears of ethnic profiling stalk conflict’, British Broadcasting Corporation (BBC), 25 November 2020, 20201204162117.

8. More recently there have been reports of Tigrayans attempting to leave Ethiopia being questioned by authorities.[44]

   [44] How an Australian woman survived the conflict in Ethiopia's Tigray region - ABC News, ABC News, 26 December 2020.

9. While the situation for Ethiopians in Tigray has been described by the UN and Red Cross as a humanitarian crisis, the situation for Tigrayans in Ethiopia more broadly has changed since the conflict in Tigray region. As above, more recent news reports indicate that those identified as Tigrayan may be harassed, detained or discriminated. Those who are identified as Tigrayan have been singled out because of their ethnicity rather than for any other reason.

10. Further, while the Tribunal accepts the Abiy Government has asserted authority over Tigray and gained control of major population centres there, the TPLF remains active and has promised protracted hostilities.  In such circumstances it is reasonable to conclude that the ethnic hostilities in Tigray may continue for some time and that Tigrayans, including those outside Tigray may continue to come to the attention of authorities for a protracted period.

    Conclusion

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

12. The Tribunal accepts that the applicant would return to Tigray and live with his family in Mikelle as he has done in the past. As noted above, the Tribunal accepts the applicant holds genuine political views opposed to the TPLF in Ethiopia and against the war in Tigray. This places him in potential opposition to both the TPLF and the Abiy Government.

13. 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 the TPLF. The Tribunal accepts that the applicant will be distinguishable as of Tigrayan ethnicity and that he comes from a region associated with the ARENA party. The Tribunal also accepts that the applicant has been a general member and supporter of ARENA in the past.

14. These factors individually may not lead to the applicant being harmed by the authorities or by the TPLF.  However, the Tribunal regards that they give the applicant has a cumulative adverse profile which places him at risk of serious harm on return to Ethiopia now or in the reasonably foreseeable future.

15. The applicant fears that he may be detained or harassed by the authorities because of his Tigrayan ethnicity. Having regard to the country information and the developing situation in Ethiopia, the Tribunal does not consider these fears far-fetched or implausible.

16. The applicant also claims his support for ARENA and opposition to the TPLF places him at risk of harm in Tigray and elsewhere in Ethiopia from TPLF members and supporters. Having regard to the country information and the ongoing situation in Tigray, the Tribunal does not consider these fears far-fetched or implausible.

17. The Tribunal is satisfied, considering his personal circumstances, and the country information on the situation of Tigrayans in Ethiopia, that there is a real chance that he would be seriously harmed if he returns to Ethiopia in the reasonably foreseeable future for reasons of his ethnicity as a Tigrayan, his political opinion as a Tigrayan opposed to the TPLF, and his support of the opposition ARENA Party.

100.   Given the current and developing situation in Ethiopia, if the applicant were to return to Ethiopia, now or in the reasonably foreseeable future, this combination of factors would lead to a real chance of him being detained and potentially mistreated by the authorities or by TPLF forces or supporters in Tigray. The Tribunal finds that he would likely face detention and questioning on return as a result of his Tigrayan ethnicity and real or imputed political profile. His return to Tigray may also be impacted by border restrictions due to the conflict in Tigray and may bring him into further engagement with Ethiopian authorities.  Even if he were not, the Tribunal accepts the applicant would be involved in political activities on return to Tigray which may bring him to the attention of the TPLF or the Ethiopian authorities. Cumulatively, given the situation in Tigray, this would lead to him being differentially treated by the authorities on the basis of his ethnicity in Ethiopia and place him at risk of harm from TPLF forces in Tigray due to his real or imputed political opinion as an opponent of the TPLF.

101.   While country information suggests that incidences of torture and other mistreatment in detention in Ethiopia have declined, and torture and mistreatment, including by the police and inside prisons, is less common[45], such information does not account for the current hostilities and the heightened sensitivity and hostility towards Tigrayans. Further, there is widespread reporting of human rights abuses against Tigrayans perpetrated by government forces, the TPLF and other armed groups active in border regions of Tigray. Such factors increase the chance of the applicant facing torture or other mistreatment amounting to serious harm if he is detained or imprisoned by Ethiopian authorities on the basis of his ethnicity or targeted by the TPLF as an opposition supporter. 

[45] DFAT Country Information Report Ethiopia, Department of Foreign Affairs and Trade, 12 August 2020, p.40, 20200812101229.

102.   Based on the evidence and country information, the Tribunal finds that that there is a real chance that the applicant would be subjected to harm on the basis of his political opinion and his ethnicity. The Tribunal finds that there is a real chance, that is one that is not remote or far-fetched, that if the applicant returns now or in the reasonably foreseeable future to Ethiopia, he will face serious harm amounting to persecution from the authorities or the TPLF for reasons of his political opinion and his ethnicity.

103.   The Tribunal is also satisfied that the harm he would suffer would amount to serious harm. Indicative examples are set out in s.5J(5) of the Act, and include a threat to the person’s life or liberty, significant physical harassment of the person and significant physical ill-treatment and denial of capacity to earn a livelihood where it would threaten the capacity to subsist. The Tribunal finds that the harm faced amounts to serious harm including mistreatment, harassment or torture by the authorities or TPLF forces.

104.   The Tribunal is also satisfied that harm would be for the essential and significant reasons of his political opinion and his ethnicity as it would be directed against him for these reasons. The mere impact of circumstances which an applicant may face in the future, even if arising from past persecution, would not constitute persecution for the purposes of s.5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[46] In MIMA v Haji Ibrahim, McHugh J explained that his use of the expression ‘systematic conduct’ in Chan v MIEA (1989) 169 CLR 379 was not intended to mean that there can be no persecution unless there is a systematic course of conduct; rather it was used as a synonym for non-random.[47] Discriminatory refers to the motivation of the persecutor.[48] The Tribunal is satisfied that the harm the applicant would suffer would involve systematic and discriminatory conduct as it would be directed at the applicant because of his political opinion and ethnicity.

[46] See for example WAKZ v MIMIA [2005] FCA 1065 at [49].

[47] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [95].

[48]Ram v MIEA (1995) 57 FCR 565 at 568.

105.   A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.

106.   A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2).

107.   Since the Abiy Government is responsible, in part, for the persecution that the applicant fears, the Tribunal is not satisfied that effective protection measures as per s.5LA are available to the applicant in Ethiopia provided by the State, party or organisation.  The Tribunal finds that the applicant would not be able to access effective protection if returned to Ethiopia for the purposes of s.5LA(2).

108.   For the same reasons, the Tribunal is not satisfied that there is any part of Ethiopia in which he would be safe from the persecution that he fears due to his political opinion and ethnicity.  Country information suggests that Tigrayans are subject to adverse attention of authorities outside Tigray and that Tigrayans face discrimination in areas where they are a minority.  While in circumstances outside the current conflict Tigrayans may have been able to live safely in areas such as Addis Ababa, the Tribunal does not regard that such areas offer protection now or in the reasonably foreseeable future having regard to the applicant’s circumstances.  The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Ethiopia and therefore satisfies s.5J(1)(c).

109.   The Tribunal notes that s.5J(3) 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 alter his ethnicity or political beliefs: therefore s.5J(3) does not apply.

110.   Accordingly, the Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J. In considering whether he comes within the definition of a refugee contained in s.5H, it 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.

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

112. 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

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

Simone Burford
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.

…