1619347 (Refugee)

1619347 (Refugee) [2020] AATA 1544 (20 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619347
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Denis Dragovic
DATE:20 April 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 20 April 2020 at 4:27pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – Oromo ethnicity – imputed and actual political opinion – Oromo Liberation Front – applicant’s past occupation – opposition to the current and past governments – changed political environment – release of political prisoners – religion – Eastern Orthodox Christian faith – particular social group – failed asylum seeker – women in Ethiopia – gender based violence – degree of harm required to constitute persecution – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 91R, 91S
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
MIMA v Haji Ibrahim (2000) 204 CLR 1
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Ethiopia, applied for the visa on 13 August 2014 and the delegate refused to grant the visa on 14 November 2016.
The Tribunal was provided with a copy of the applicant’s Ethiopian passport. As such I accept that the applicant is a citizen of Ethiopia.
The applicant appeared before the Tribunal on 22 January and 5 March 2020 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Amharic and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearings.
RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
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 Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims: The applicant fears returning to Ethiopia because she is female. She fears that by practicing her Ethiopian Orthodox faith it places her at risk. Despite the recent changes led by the new Prime Minister, the applicant believes that the situation is getting worse and that this poses a risk to her because of her ethnicity, perceived association with the Oromo Liberation Front (OLF) and anti-government stance. The applicant was a journalist and fears that was she to resume her work as a journalist she would be targeted.
The applicant is in a relationship with a [Country 1] citizen who is residing in Australia and together they have a young child. She arrived to Australia [in] July 2014 to attend [an event] as a journalist. The applicant has not departed since. She applied for a protection visa on 13 August 2014.
Evidence and Findings of Fact
The applicant claims that during the first few weeks while in Australia she called her three brothers but found their phone not working. After trying repeatedly she called the person who they used to rent accommodation from and was told that some people came to take them away. The lady said that she saw the two older brothers being taken. The applicant explained that the lady owned a compound and her brothers lived in a house behind the lady’s house. The applicant said that the lady didn’t know at that stage where the younger brother was. I accept that the applicant’s brothers were taken away from their homes as described.
After about 6 months the younger brother was heard from. She claimed that he had run away to a town called [Town 1]. The applicant stated that there was no particular reason for him to go to [Town 1]. I accept that the younger brother was heard from six months later as described.
I asked about whether her brothers were involved in politics. She said that at that time, before the change of government, everyone was scared. She said that they weren’t involved; they just stayed inside of the house. She said that her brothers would talk about the government inside the house but fearing prison they wouldn’t do anything more. I accept this as fact.
The applicant clarified that she has no other relatives in prison. I accept this as fact.
The applicant described her extended family as her mother having a lot of brothers and sisters from different fathers – [number] in total. Her mother’s siblings from the father were [number] in total ([number of siblings] and her mum). On her father’s side there is [number] brother and [number] sister. She added that two of her mother’s brothers disappeared before her mother’s death 11 years ago. I accept this narration of her extended family.
The applicant claims that she doesn’t have a relationship with her extended family. She claims that they grew up separate. She explained that she doesn’t know what the problem was. I put to her that she had stated in a statutory declaration (Department file f.70) at [29], ‘During this time, I would travel to Addis Ababa on weekends and I would stay with family friends.’ The applicant explained that this was the house of her mother’s friend. Then she clarified that it was her uncle’s friend. She claims that she didn’t know her uncle much. I asked if she has been in touch with this uncle. She said that she asked him about her brothers in 2014 but not since then. I asked why she hadn’t called since April 2018 when the new Prime Minister came to power and released thousands of prisoners. She said she hadn’t because it was a long time since they had spoken. She said that she asked for help earlier and he wasn’t willing to help. She claims that as she hasn’t had contact with him for three years she feels she can’t talk to him. Considering the size of the applicant’s family, which includes [number of] uncles and aunts on her mother’s side and [number] on her father’s and having accessed accommodation for a period of years through her family I do not accept that the applicant has no family that she can rely upon for temporary support until she establishes herself. While she may not be as close to some as to others I do not accept that she would not have anyone to seek support from.
I find it vexing that the applicant had not pursued every avenue to follow up on her brothers. While the uncle may not have been willing to act in 2014, the situation in 2020 is very different considering the change of government. That the applicant has not reached out strains her credibility.
The applicant claimed that political prisoners are still being held by the government. She showed a video on Facebook. The video appeared to be interviewing ex-prisoners outside of prison. I put to her that they were ex-prisoners. She disagreed. I find that the video shown to me was of ex-prisoners; nevertheless, I accept that there are some Ethiopians remaining in prison for political reasons. I discuss this in greater detail below.
The applicant provided through her earlier submissions a summary of her activities and potential imputed political associations.
·She had participated in the 2005 protests against the government during which she was detained, forced to sign some documents that she was unaware of their content, remained detained for 15 days and was beaten. Her parents received a written warning after her release, threatening them if she transgressed again.
·Arising from her 2011 work reporting on land issues she was warned to stop provoking Oromo farmers.
·While in [Country 2] between 2012 and 2014 she visited the Oromo Liberation Front (OLF) offices as a journalist and subsequently, upon her return to Ethiopia, she received a summons and was interrogated over her visit.
·Was detained following her return from [Country 2] in March 2014 at a time when other journalists were also rounded up. She was taken to [a] Prison and detained for one week, beaten and insulted.
I accept as fact the applicant’s narration of her background prior to coming to Australia as summarised here and detailed in her statutory declaration dated 19 October 2015 (Departmental file f.71).
I have considered the applicant’s circumstances and note that she wrote in her application form that she has lived in Addis Ababa from 2004 to 2012 after which she moved to [Country 2]. I asked the applicant where she would return to if she had to return to Ethiopia. Considering that she lived in Addis Ababa for 8 years and noting that she has family friends in Addis Ababa I put to the applicant that I thought she would return to Addis Ababa. The applicant did not disagree but noted the challenges in finding accommodation. I find that the applicant would return to Addis Ababa and as such I consider her circumstances in that light.
Considerations
Country information
I discussed with the applicant the following country information, the Prime Minister is Oromo and he is the leader of the Oromo Democratic Party. Since coming to power he has:
·     Fire the head of Ethiopia’s prison service after allegations of widespread torture and subsequently freeing thousands of political prisoners.[1]
·     Arrested the head of Somali region over human rights abuses.[2]
·     Pardoned Andargachew Tsege a leader of Ginbot 7 which was previously designated a terrorist organisation until the designation was lifted by Abiy[3] along with reaching a peace agreement with another rebel group, Oromo Liberation Front (OLF), which has been waging a 45 year civil war.[4]
·     Lifted the state of emergency and making peace with Eritrea which has led to the first direct flights between Ethiopia and Eritrea.[5]
·     Unblocked websites, blogs, radio and TV-stations, and allowed access to internet and mobile applications which were previously unavailable. Political prisoners have been released, including prominent journalists and members of blogging groups. At the end of 2018, for the first time in over 15 years, there were no journalists imprisoned[6]
[1] 'These changes are unprecedented': how Abiy is upending Ethiopian politics, The Guardian, 8 July 2018,
‘[2] Ethiopia arrests ex-Somali region head over rights abuses’, Al Jazeera, 28 August 2018
[3] Ethiopia pardons abducted Briton on death row, The Guardian, 27 May 2018
[4] OLF rebels look to political future, carve out new identity, Ethiopia Observer, 3 September 2018 Ethiopia's new Prime Minister has had a stellar two months, can he keep it up?, CNN, 7 June 2018
[6] Country Policy and Information Note: Ethiopia: Opposition to the government, August 2019
She responded that she had read all of that, but said that Prime Minister Abiy is doing this simply to further himself politically.
In a post-hearing submission the representative rebutted the country information that I had presented at the hearing. In the instance of Ethiopia and the fundamental changes that have occurred nearly two years ago it is important to carefully assess the country information being used to inform the circumstances to which an applicant would be returning to. As such I engage with the representative’s concerns.
The representative took issue with the country information on a number of points that can be summarised as being the uncertainty and relatively short period of time since the changes limiting the ability to place an overly optimistic reading of any progress, while the political situation is improving the ethnic and religious tensions are deteriorating, that there is still a long way to go to achieve peace and safety and that there is inconsistent application and adherence to the reforms.
These are all true to a degree. Ethiopia has traversed the spectrum from a dictatorial human rights abusing surveillance state to a relatively open multi-party democracy in a remarkably brief period of two years. I have considered the country information provided by the representative and those listed in this decision and find that the changes have entrenched themselves such that the path forward into the reasonably foreseeable future is on the same trajectory as it has been for the past two years.

Rather than entering into a discussion of each piece of country information presented by the representative, I acknowledge that it was all read in detail. I not only read the excerpts provided in the submissions but returned to the original sources to consider them in full. In doing so I gave greater weight to more recent reporting.
I note in this regard that a number of references relied upon by the representative pre-date the appointment of Prime Minister Abiy Ahmed in April 2018 including the Amnesty International Report of 2018 relying upon 2017 information, Freedom House references to arrests of journalists and bloggers from pre-April 2018, and the DFAT report. I also note that some sources were opinion pieces of individuals. While these may present alternative views I place less weight on them than the collaborative compilations of international organisations and governments.
Fear of harm arising from her Oromo ethnicity and her imputed OLF political opinions
The applicant claims that being Oromo puts her at risk. She said that people say you can learn the Oromo language if you go to prison inferring that the prisons are full of Oromo people. She said that she would be targeted because she used to write articles about Oromo farmers. She did not claim to be or had been a member of the Oromo Liberation Front (OLF). I asked if she thinks that the government will target her for writing such articles eight years ago. She responded that this government is a silent killer. She claims that the prime minister is putting people in prison while saying that everyone is out.
I asked the applicant to take her profile into consideration and explain why she feared being harmed if she returned now to Ethiopia considering the substantial changes to the political system. She said that at present the OLF are free and there is peace and the government has allowed them to enter into the country but the reality is that the senior leaders aren’t being arrested while the lower level OLF members are being arrested. I asked if she has evidence that they are being arrested because of being OLF or for doing something else. She responded that at the beginning all political groups were allowed to re-enter and work together but unfortunately the reality is not working out like that.
The applicant said that the government has a list of those who were at some time in prison and they want to detain those with a record of being political activists. She said that those people who are returning to Ethiopia are doing so safely as they are also citizens of other countries. I put to her that contingents of OLF fighters from Eritrea wouldn’t have had dual citizenships when they crossed back into Ethiopia out of hiding. She said that those people have weapons and can protect themselves. I put to her that part of the deal was that they were to disarm but she responded that they haven’t agreed to it and retain their weapons to protect themselves.
Of the country information provided by the representative, a more recent relevant example is an Amnesty International report referring to the arrest of up to 75 OLF members. While aligning with the applicant’s concerns, problematically, there is no information available at the time of this decision regarding neither what they were accused of nor who they were. There is no indication that their arrests were arbitrary or that they were detained without due process. I note that Ethiopia no longer has in place the State of Emergency Laws that allowed such acts. Nevertheless, I place some weight on it when considering the circumstances to which the applicant will be returning to, though, noting that the applicant has not been a member and has not expressed an interest in joining the OLF.
In considering the circumstances of the applicant as an Oromo who in the past has had an imputed association with the Oromo Liberation Front as she has claimed I note that the political situation has markedly changed since the applicant left Ethiopia. I note that the Prime Minister, as mentioned by the applicant, was awarded the Nobel Peace Prize. I note the significant relaxations of the formerly oppressive political environment including the release of political prisoners and the punishment of those responsible for past human rights violations. I note that the prime minister himself is Oromo. While I acknowledge that there is inter-ethnic violence occurring in Ethiopia and some OLF members have been detained I must consider whether the applicant faces a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of return. Considering the changed political environment and the country information described above I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of being associated in the past with the OLF or being of Oromo ethnicity.
Fear of harm arising from her being a former journalist
The applicant claims that in the past you risked harm if as a journalist you wrote about how people are living. She said for example if she asked questions about the homeless or why land is being taken arbitrarily away from people then she would be taken and imprisoned. She said that she wants to write about such things again. She said that even now journalists have to support the government in every article that is written. She said that if she wrote an article criticising the prime minister they would arrest her.
I put to the applicant country information that indicates that freedom of expression has increased and journalists and bloggers are not likely to be at risk of treatment amounting to persecution or serious harm.[7] She responded that the report’s authors might say anything but they don’t know what is happening in Ethiopia. She claims that they are basing this on what the media says.
[7] Ibid 2.4.22
I referred to a Reporters Without Borders article, ‘New era for Ethiopia’s journalists’, published 2 April 2019, and noted, ‘For the first time in more than 15 years, no journalists are being held in connection with their work’. I put this to her and said that it is strange that she is saying that no journalist has the courage to write articles against the government today and yet before under a harsher regime they had the courage and were arrested and imprisoned. She said that you can’t trust the source of information.
I put to her that the Ethiopian federal Attorney-General’s office dropped all pending charges against bloggers, journalists and diaspora-based media organizations, including the Zone 9 bloggers, Ethiopian Satellite Television (ESAT), and Oromia Media Network (OMN), which had previously faced charges of inciting violence by criticizing the government.[8] The applicant said that the prime minister is doing this for himself and not for people like her.
[8] Human Rights Watch, Ethiopia: Events of 2018,
I note that the applicant’s representative submitted information reporting intimidation and arrest of journalists as reported by the Committee to Protect Journalists and Amnesty International. I noted, though, that the original source of this information states, ‘Investigations throughout 2019 to compile CPJ’s list of 250 journalists imprisoned in connection with their work on December 1 identified multiple complex cases of jailed activist-journalists. These individuals’ ongoing detentions were found to be more connected with their political activities than their journalistic work.’[9] The applicant responded that this is just information from websites and that the real situation is different.
[9] Muthoki Mumo and Jonathan Rozen, ‘Nigeria and Ethiopia jail activist-journalists amid crackdown on free expression’, Committee to Protect Journalists, 11 December 2019 >
I note that the applicant has not worked as a journalist since coming to Australia. Her previous experience was limited. Nevertheless, I give her the benefit of the doubt and consider her circumstances were she to return to Ethiopia and to find work as a journalist. I note that the government has released all journalists from prison, a fact certified by external watch groups with the caveat that those who are in prison are there because of other activities. I note the positive reporting on the freedom afforded to journalists to report on matters. In weighing this evidence in contradistinction to the applicant’s verbal evidence and claims in response to the country information I find the international sources more credible and as such give little weight to the applicant’s claims of journalists being imprisoned without the international community being aware of it. For this reason I find that the applicant does not face a real chance of serious harm or a real risk of significant harm were she to work as a journalist and report on issues such as but not limited to Oromo farmers, ethnicity, religion and anti-government activities.
I have also considered whether the government would harm her for her past journalism. I note that the above country information is clear on the shift the new government has taken in their views towards journalists and as such find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of her past reporting as a journalist.
Fear of harm arising from opposition to the past government and general opposition to the current government and concerns over freedom of speech
The applicant is not a supporter of the current government. She has shared social media posts against the government including criticism that says the Prime Minister isn’t doing anything. On Facebook she posts information on what is happening against the churches in Ethiopia. She claims that the Ethiopian Orthodox Churches in Australia are against the prime minister for not doing anything to stop the attacks upon the churches. She said that in the five and a half years that she has been in Australia she has participated in one protest, which when she arrived had already dispersed as she was running late. This protest was against the previous government. She also attended a vigil for people who have been killed in protests against the previous government. She claims that she intends to participate in future protests. She said that in the US there were protests run by religious Christians and a second round of protests was going to be held in Australia which she had intended to attend but the Bishop of the Ethiopian Orthodox Church gave instructions not to protest until they undertake their own efforts to deal with Abiy.
The applicant fears being unable to engage in general conversation about the political situation in Ethiopia. She claims that there is no freedom. There isn’t any clarity on what is allowed and what isn’t allowed and without certainty it’s difficult.
The applicant’s very limited political activities in Australia and particularly that she has not participated in any protests other than post FB posts during the Abiy government leads me to conclude that in looking towards the future the applicant would on an intermittent basis be involved in low level, legal, political activities against this government.
I put to the applicant the following country information from the UK government:
[S]ince April 2018, the political space has opened up and the government has shown increased tolerance and acceptance of opposition groups…the overall situation for opposition parties, including the former EDP, has improved significantly. In general, the available information indicates that members of non-armed political groups are not subject to treatment amounting to persecution.
The applicant responded that it’s just politics. She explained that the UK government has large numbers of asylum seekers and questioned if the situation was so good why don’t they return them to Ethiopia.
Based upon the country information discussed with the applicant and what has been provided in pre- and post-hearing submissions on the situation in Ethiopia I find that the applicant’s activities against this government and any future activities will not lead to her facing a real chance of serious harm or a real risk of significant harm.
I have also considered whether the current government would seek to harm her as a result of her past political activities against previous governments and her claim that the government has a list of past political detainees and wants to detain them again. Based upon the large scale release of upwards of 10,000 political prisoners[10] and other political reforms taking the country in a direction away from the past I find that the applicant’s past political activities will not lead her to facing a real chance of serious harm or a real risk of significant harm.
Fear of harm arising from having claimed asylum in Australia
[10] 'These changes are unprecedented': how Abiy is upending Ethiopian politics, The Guardian, 8 July 2018, >
I asked the applicant whether she maintained a fear of harm arising from having claimed asylum to which she answered that the government knows that she has applied and her application is against the ruling government.
I do not accept that the government of Ethiopia would know the content of her application. It may be known through various channels including via the diaspora that she had applied but then it would be known that her application was made in 2014 during the previous government. No evidence was provided by the representative or the applicant and there is no evidence available to suggest that the Abiy government is concerned about failed asylum seekers.[11] When I put this to her she said that she hadn’t heard of anyone who has been harmed. As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of having sought asylum.
Fear of harm arising from her Eastern Orthodox Christian faith
[11] I reviewed CISNET, Refworld and used Google.
The applicant fears returning to Ethiopia because of her faith and the violence she claims is being perpetrated against Christians. She believes that the prime minister is not acting to protect Christians because he has a Muslim background. She acknowledges that legally there is freedom to go to church but she fears those who are burning churches and cutting believer’s throats. I asked whether any churches in Addis Ababa had been burned, she said that they tried to burn one church but their attempts were stopped.
Country information was provided of churches being burned in other locations where there are simmering ethnic/religious tensions.
I put to her that 44% of the population are Orthodox Christian and it would be difficult to understand how she would be at risk. I explained the real chance and real risk test and noted that the population of Ethiopia is 102 million and that it is difficult for me to see that her circumstances would rise to a real chance or a real risk by her being in a church that is attacked especially considering there has been only one attempted attack on a church in Addis where she would return to. She said that she doesn’t have confidence that she won’t be killed.
I read to the applicant country information from the Department of Foreign Affairs:
While there are some tensions between religious groups across Ethiopia, these tensions rarely result in serious, systematic discrimination or violence between different groups. The two largest religious groups, Orthodox Christians and Muslims, generally respect each other’s right to practise their religion, despite some low-level mutual mistrust between the groups.
While I note that this report is from 2017 and the political situation has changed I put it to her as an indication of the underlying inter-religious stability that exists. The applicant said that it was old information and that currently there are risks.
At the second hearing the applicant claimed that there was an incident at a church in which the government’s forces entered and killed worshippers. I found the news article reporting this incident during the hearing and put to her that the information available to me was that the situation arose because people were building a church without permission, the government sent personnel to demolish it, there were protests which escalated and led to the killing of two people.[12] She then put to me that had the government wanted to stop the construction of the church then why did they storm it at 1am. She questioned the legitimacy of the government and suggested that nothing has changed and that everyday someone is killed or kidnapped. I do not agree with the applicant’s speculation of events at this church as it is possible, for example, that the killing occurred at 1am due to a long siege. The reporting is clear that it is a specific incident relative to the circumstances of this church which led to an escalated confrontation. I give this evidence little weight.
[12] Mayor confirms two followers of Orthodox Church killed in Addis as they defend against demolition of church, denies he ordered it, Borkena.com, 5 February 2020 >
While I accept the country information provided to the Tribunal by the representative outlining instances of churches that have been attacked I find that due to the size of the population and the lack of any successful attacks in Addis Ababa where she is from and would return to, the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of her faith including her desire to practice it.
Fears of harm arising from her gender
I asked the applicant to explain what she feared as a result of her gender. The applicant responded rhetorically by asking how it could be possible to return back to Ethiopia with her child because young people are killing others on the street and sexually abusing women. She said that the young people are being sent by others (she named one name) to do such things including to burn churches and rape women.
The representative presented figures from the Ministry of Foreign Affairs of Denmark which state, ‘nearly 1 in 4 of all Ethiopian women have been victims of physical violence, while 1 in 10 has been victims of rape.’ I reviewed the original source of those statistics, the Ethiopian Demographic and Health Survey (“the survey”). This document notes that physical violence in their methodology includes, ‘hit, slapped, kicked, or done something else to hurt them physically’. Furthermore, the survey asked whether the woman had experienced such harm at any time of their lives since they were 15 years old.[13] Does being slapped meet the criteria of serious or significant harm? Could being kicked meet those thresholds?
[13] Ethiopia: Demographic and Health Survey, 2016 p290
Section 91R(2) of the Act provides that the following are instances of serious harm: (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.
In MIMA v Haji Ibrahim McHugh J emphasised the degree of harm that would be required to constitute persecution. His Honour explained:
The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution. Similarly, while persecution always involves the notion of selective harassment or pursuit, selective harassment or pursuit may not be so intensive, repetitive or prolonged that it can be described as persecution.[14]
[14] MIMA v Haji Ibrahim (2000) 204 CLR 1 at [55].

This interpretation was repeated in Appellant S395/2002 v MIMA (2003) 216 CLR 473 (in joint judgment with Kirby J) at [40] ‘[w]hatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it’.
While there may be some light between the interpretations of Justices McHugh and Kirby and the text of s.91R(2) in that the legislative test may not extend as far as being intolerable I find that a single slap or a kick used as a marker in the survey muddies the water. What was the severity of the slap or kick? Was the victim vulnerable for a particular reason such that a slap or a kick was intended to cause particular damage? In addition the survey asked for information on incidents that may have occurred 30 or 40 or more years ago which would be in a very different cultural and social environment. I find that these figures cannot be simply translated into the context of refugee assessments without acknowledging that they include responses which would not amount to serious or significant harm or would not be relevant to the environment into which the applicant would be returning to. The survey remains relevant but the headline figures cannot be simply translated into assessments of real risk or real chance.
The data in the Survey was also disaggregated further to differentiate between never married women and those who have been married. For the purposes of the context of this survey ‘never married’ would best apply to the applicant as it reflects the circumstances of women who have not been exposed to the actions of a partner in the context of living in Ethiopia under its jurisdiction and culture. In this instance of those women who had reported being harmed 27% identified their perpetrators as brothers or sisters, another 14% other relatives, another 13% a father or step/father, another 11% teachers and another 8% former boyfriends.[15] When these are taken out, as would be the case for the applicant according to her claims, the rate of incidence reduces substantially.
[15] Ethiopia: Demographic and Health Survey, 2016 p292
I read to the applicant the statistics from this Survey and raised the issues at the hearing. In a post-hearing submission the representative noted that despite some information being focused on family violence there was other information which indicated general gender based violence. I note that the data discussed at the hearing is for both family based violence and general violence as the question asked in the survey relate to the rate of incidence of sexual based violence and then disaggregates it into family and non-family.
The representative in her pre- and post-hearing submission included other country information that women continue to suffer sexual and gender-based violence. I accept that women face gender based violence in Ethiopia. The question that needs to be considered is whether the applicant faces a real chance of serious harm or a real risk of significant harm. The information submitted by the representative also included details about the lack of implementation of laws, the general culture and its attitude to women, domestic violence and that the situation in rural areas was worse. I have drawn upon these to form a picture of the situation the applicant would be returning to.
I put to the applicant country information that the government is attempting to combat sexual and gender based violence through the establishment of child and women protection units in police stations, the Violence against Women Investigation and Prosecution Team in Addis Ababa and Dire Dawa, and victim friendly benches within courts.[16] The applicant said that if the information is real then she would be happy but it is not implemented and it’s not real.
[16] UK Home Office, Country Background Note: Ethiopia, November 2019 at [15.6.5]
The representative referenced the 2017 DFAT Ethiopia country report in which it states that women face a ‘high risk of domestic violence’. As noted above, the applicant’s partner is in Australia. She does not face, into the reasonably foreseeable future, the context of being in a relationship in Ethiopia. It also states that women face a moderate risk of rape and sexual assault. The Survey distinguishes ‘physical violence’ from ‘sexual violence’. The data available in the Survey then distinguishes sexual violence according to married and never married. For the latter group which I noted earlier is most representative of the applicant’s circumstances 2% have ever experienced sexual violence.[17]
[17] Ethiopia: Demographic and Health Survey, 2016 p292 page 291
The representative also noted that country information states that there are high levels of societal discrimination in Ethiopia (Tribunal f.54b—DFAT Country Report at [3.51]). The report, though, goes on to state that women ‘seldom pursue’ rights such as going to the courts, that women’s limited financial independence exacerbates this situation and that Sharia law further influences it. It would be inappropriate to accept such a generalisation about women and simply transpose them onto the applicant. The applicant has lived in Australia for an extended period, has a relatively high level of education and worked as a journalist. She has not exhibited any behaviour that would suggest she would shy away from pursuing her rights. I have found, below, that she would be able to find employment in the future. She is not Muslim and as such Sharia law does not apply. It is hard to equate the generic ‘women’ from the country information the representative has extracted that includes illiterate, uneducated, Muslim women and those who live in rural areas and then infer that the applicant would suffer societal discrimination. In discussing this with the applicant I noted that the president of Ethiopia is female[18], the chief justice of the Supreme Courts is female[19] and that half of the cabinet positions are held by women[20]. She responded that they are doing nothing for women more generally. I acknowledge that this is not evidence in of itself that there isn’t societal discrimination but rather that ‘women’ can’t be considered generically. Based upon the applicant’s specific circumstances I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from societal discrimination.
[18] ‘Who is Sahle-Work Zewde, Ethiopia's first female president?’, Al Jazera, 28 October 2018 ‘Ethiopia Swears In First Woman Supreme Court Chief’, NPR, 1 November 2018 Ethiopia’s new 50% women cabinet isn’t just bold—it’s smart, Quarz Africa, 17 October 2018,
The applicant claimed that women are being kidnapped from university campuses. I put to her that the situation[21] she was referring to was specific to one instance at a university campus in the far north-east of the country and was not directly relevant to the circumstances that she would be returning to in Addis Ababa. She said that it was representative of the circumstances of women. I place little weight on this information as it is not representative of women but is very specific to the circumstances of the region in which the university is situated. With no evidence of women being kidnapped in Addis Ababa I find that the applicant does not face a real chance of serious harm or a real risk of significant harm from being kidnapped.
[21] Growing outcry in Ethiopia over abducted university students, ABC News, 28 January 2020 >
Considering that the Survey indicates that most of the perpetrators of violence are known to women but recognising that she would not be returning to school nor engaging with an ex-boyfriend, nor would she be living with her intimate partner, and noting the definition of physical violence used by the survey muddies the waters by including incidents that would not amount to serious or significant harm and that the data encapsulates periods of time far in the past and different to the circumstances the applicant will be returning to I find that the rate of physical violence against women and specifically as would be the circumstances faced by the applicant is not as reported by the headline figure presented by the Danish Ministry of Foreign Affairs. When taken as a whole alongside all of the country information including what was submitted by the representative I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from gender based violence (physical violence excluding sexual violence).
The figures for sexual violence were also included by the representative on the basis that the applicant fears being raped. The Survey shows that sexual violence is often committed by individuals with whom women have an intimate relationship. I note that the same report states that two percent of never-married women have reported experiencing sexual violence. Based upon the applicant’s circumstances I find that the applicant does not face a real chance of serious harm or a real risk of significant harm arising from the risk of sexual violence.
Other concerns
The applicant also expressed a fear of finding employment. The applicant stated that it is very hard to find work. She also said that it is hard to find a rental property. She said that she is by herself and doesn’t have relatives. She said that if she had family or relatives she could be helped.
I asked about the family of the applicant’s partner. She responded that he only has his mother who is very sick and living alone. She claimed that his mother has the attitude that if she dies so be it and for that reason the mother’s circumstances are not comparable to hers. The applicant said that her partner’s mother is living in [Town 1], the same place where her brother was last known to be. She claimed that she hasn’t been introduced to the family. I put to her that when you have a child you become a part of the partner’s family. She accepted this.
I put to the applicant that Ethiopia has a non-discriminatory health insurance scheme: ‘The CBHI benefit package covers all outpatient and inpatient services at the health centre and hospital levels.’[22] She disagreed. She said that to get a health services card you need money. I asked if there was a reason to believe that she would be unable to get the money required to register for the card. She then said that it’s not a professional service and that you have to pay for the card each time you need a service. This is not what the country information suggests.
[22] HSFR/HFG Project. June 2018. Community-Based Health Insurance: Achievements and Recommendations for Sustaining Gains in Ethiopia. Rockville, MD: Health Finance and Governance Project, Abt Associates, >
Regarding the applicant’s chances of finding work and being discriminated against based upon being a woman I noted that country information states that the percentage of women who are employed increases with increasing education, from 29% among women with no education to 70% among women with more than a secondary education. I noted that she has education reaching beyond secondary level. The applicant responded that if the information was true it would be good but she believes that it is not the reality claiming that even those who finished a bachelor degree can’t find work.
The applicant’s access to the health insurance scheme and ability to find appropriate housing would be tied to her finding work. Considering that the applicant had found work before coming to Australia and noting that she has educational qualifications beyond secondary school I find that the applicant will be able to find employment.
I find that she can also rely upon her own extended family and friends in Ethiopia in the near term until she finds work or alternatively through financial support from her partner and his family who reside in [Country 1] (including three sisters and one brother). When I put this to her she said that she can’t make any decisions on that. I find that she would be able to sustain herself through a combination of any or all of the above and as such would not face a real chance of serious harm or a real risk of significant harm arising from an inability to subsist.
I asked the applicant if there was a reason why her partner couldn’t return temporarily or visit Ethiopia. She said that she doesn’t think that he is interested. I asked again whether the government would prevent him or that he was a refugee in NZ for example. She responded that for him there is no problem, he can go in and out any time. I find that the absence of the applicant’s partner from her life on a temporary basis until such time as he visits her or she acquires a partner visa would not amount to serious or significant harm.
The applicant has a young child. It is up to the parents to decide the future of the child and whether the child will remain with the father or mother. She has indicated that if she returns she would fear for her child and that the child doesn’t have Ethiopian citizenship and that she can’t leave her child with her partner. I have considered how this may impact the applicant noting that she is the sole applicant for this visa and find that while there may be some difficult decisions before her and whatever decision is made will entail some heartache the psychological distress arising from the parent’s decision will not amount to serious or significant harm as it relates to the Act, namely that there is a refugee nexus or that there is an intentionality of a third party to inflict harm as required under Complementary Protection.
I have also considered were the parents to choose that the child travels to Ethiopia how having her child with her would affect her finding work. If she was to choose to return to Ethiopia with the child then she would have the option of paying someone from her wages to take care of the child in her absence while at work or to rely upon her extended family or friends. I find that having a child with her in Ethiopia would not limit her ability to find work such that her chance to subsist will be threatened.
I have also considered the applicant’s situation cumulatively. She is an Oromo with a past profile of imputed and actual political activity who is a practicing Christian with ambitions to once again be a journalist. She opposes the government though at a low level not amounting to what would put her at risk of harm. She has sought asylum in Australia. The applicant is also a woman, a mother and a partner who would not have her partner with her. In considering them cumulatively I have focused on those circumstances where the risk profile may overlap such as but not limited to, for example, were the applicant to find work as a journalist alongside her opposition to the government and whether the two would lead her to face harm or alternatively whether her past profile would prevent her from finding work and isolate her from other options to subsist. In considering the earlier findings individually and when bringing them together to consider her cumulative risk I find that the applicant does not face a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of removal to Ethiopia.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Denis Dragovic
Senior Member

[2020] AATA 1544

20 April 2020

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