1615482 (Refugee)

Case [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…

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AGLC
1615482 (Refugee) [2021] AATA 754
Case
[2021] AATA 754
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse the applicant, an Ethiopian citizen, a protection visa. The applicant claimed 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, alleging discrimination and persecution.

The court was required to determine whether the applicant had a well-founded fear of persecution in Ethiopia based on his political opinion, ethnicity, or other grounds, or whether complementary protection provisions applied. This involved assessing the credibility of his claims regarding his involvement in political activities, including a 2005 student protest, his alleged membership in ARENA, and subsequent persecution by authorities.

The Tribunal found that while it was plausible the applicant participated in a 2005 student protest and was suspended from university for a month, it did not accept that he was placed on a government blacklist. This conclusion was based on a lack of evidence suggesting he was a high-profile organiser or otherwise drew the attention of authorities in a manner that would lead to such blacklisting, particularly given his subsequent ability to complete his university degree without further disruption. Consequently, the Tribunal concluded that the decision under review should be remitted for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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’). 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. 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. 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 claimsProtection visa application 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. 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. 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. 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.

Evidence

Evidence Before The Court

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 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. 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 For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Harm due to political opinion 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. 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. 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.

Decision

Reasons for decision

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 FRAMEWORKCriteria for a protection visa 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. 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. 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). 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. 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

Ratio Decidendi

Legal Principle Established

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 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 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. 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 For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.Harm due to political opinion 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. 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. 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.