1620511 (Refugee)

Case [2021] AATA 2231

1620511 (Refugee) [2021] AATA 2231 (30 April 2021)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1620511

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE OF DECISION:  30 April 2021

DATE CORRIGENDUM

SIGNED:30 June 2021

PLACE OF DECISION:  Perth

AMENDMENT:  The following corrections are made to the decision:

The reference to China in paragraph 36 should be changed to Ethiopia

Simone Burford
Senior Member


DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1620511

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE:30 April 2021

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 30 April 2021 at 4:13pm

CATCHWORDS

REFUGEE – protection visa – Ethiopia – race – Oromo – political opinion – anti-government views – former PDRE Army member – church leadership – criticism of the government – assisting asylum seekers from Ethiopia – fear of forced Oromo Liberation Front recruitment – fear of detention – fear of killing – passport renewals – police clearance security screening – renewed political and ethnic conflict – de-proscribing of opposition parties – church advocacy for disadvantaged groups – cumulative adverse profile – decision under review remitted

LEGISLATION

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

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chan v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
DAJ19 v Minister for Immigration [2020] FCCA 2142
DAO v Minister for Immigration and Border Protection [2018] FCFCA 2
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Ram v MIEA (1995) 57 FCR 565
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
WAKZ v MIMIA [2005] FCA 1065

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 11 November 2016 to refuse to grant the applicant…

Continue reading 1620511 (Refugee)

Sign in free to access the full text

Details
AGLC
1620511 (Refugee) [2021] AATA 2231
Case
[2021] AATA 2231
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Immigration and Border Protection's decision to refuse to grant the applicant, an Ethiopian national, a protection visa. The applicant claimed he feared persecution upon return to Ethiopia due to his past involvement as an officer in the People’s Democratic Republic of Ethiopia (PDRE) Army, his subsequent work interpreting for asylum seekers and political opponents of the Ethiopian government, and his role as a pastor accused of preaching anti-government views.

The court was required to determine whether the applicant had a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, such that Australia had protection obligations towards him. This involved assessing the applicant's credibility, the plausibility of his claims, and whether he had a current and existing right to reside in any country other than Ethiopia. The court also considered the weight to be given to the 2020 DFAT Country Information Report, which the applicant contended was unreliable due to a lack of cited sources and unclear dating of information.

The Tribunal acknowledged the applicant's claims, individually and cumulatively, and considered the most recent DFAT Country Information Report. It found that while it was plausible the applicant retained refugee status in [Country 2], the material before it was insufficient to establish a current and existing right to reside there, given the time elapsed since his departure and changes in [Country 2]. Similarly, the Tribunal accepted the applicant no longer had a current right to reside in [Country 1]. Consequently, the Tribunal found that section 36(3) of the Migration Act 1958, which deals with third country protection, did not apply.

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 11 November 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).Background The applicant is [an age]-year-old citizen of Ethiopia, who was born outside Addis Ababa. His mother was Gurage and his father was Oromo. He lived and studied in Addis Ababa. His father died around 2008 and his mother is alive and living outside Addis Ababa in the Oromo region. He has a number of [specified family members]. One brother is deceased. Another brother is living in [Country 1] with his wife, and the others are in Ethiopia, in Addis Ababa or elsewhere in the Oromo region. He has lost contact with one [sibling]. One sister and her children live with his mother. He left Ethiopia for [Country 2] in 1991 and was recognised as a refugee in that country in 1992. He left [Country 2] in 2002 and travelled to [Country 1] where he lived until 2011. He travelled to [Country 1] on a scholarship to undertake further study. He completed a [Master course] at [College 1] and later completed a PhD at [University 1] in February 2011. Since leaving Ethiopia he has travelled to [Country 2], [Country 1], [and various specified countries]. Most of this travel was undertaken as part of his missionary work as a pastor. The applicant first travelled to Australia on a [temporary] visa in 2010. He later returned on a student visa in January 2011. He was granted a further student visa in October 2015, which expired on 27 August 2016. He applied for the protection visa on 27 August 2016. While in Australia he made several trips overseas, including to [Country 1] for his graduation [between dates in] February 2012. He has not left Australia since February 2015. Protection claimsProtection visa application The applicant provided detailed written claims on his application for protection. In summary, the applicant claimed that: ·He was an army officer and [worked with] a general in the military of the People’s Democratic Republic of Ethiopia (PDRE).[1] He was forced to flee Ethiopia to [Country 2] in May 1991 during a coup by tribal secessionist militia and rebel groups as rebel groups were arresting, torturing and killing anyone who supported the previous PDRE regime, particularly those in the armed forces. The same groups remain in power following the toppling of the former government.[1] The PDRE was the civilian government which succeeded the military Derg regime in 1987, however the Derg leaders remained in power as leaders of the PDRE and the regime is often referred to as ‘the Derg’.·He fled to a border refugee camp in [Country 2] but Ethiopian government forces crossed the border in raids and he was moved to another camp. His army commander was killed in [Country 2]. ·He was granted refugee status in 1991 in [Country 2] and commenced studies there.·He was offered a scholarship to [Country 1] to complete a [Master] program and took the opportunity to move there for his safety. ·During his residence in [Country 1] he was a community leader, [an office holder] for the Ethiopian diaspora community and a pastor and founding member of [Church 1] in [Country 1]. He would interpret for [Agency 1], during refugee status determinations of other Ethiopians, including political opponents of the Ethiopian government (the Coalition of Unity and Democracy (CUD), Oromo Liberation Front (OLF) and GINBOT 7).·He was forced to resign from the Ethiopian diaspora community when supporters of the new government identified his employment by [Agency 1] as assisting asylum seekers from Ethiopia. He was also forced to cease his work as a pastor at [Church 1] when he was accused of preaching and teaching anti-Ethiopian government views and making comments critical of government policies in his [Master] thesis. He received threats by Ethiopian government supporters and they hacked his email.·In 2010 he received an invitation from a Christian mission in Australia and came to visit. He returned to Australia in 2011 to study, both to prevent his return from [Country 1] to [Country 2] or Ethiopia and as a ‘Christian mission opportunity’.·He will be persecuted, arrested, imprisoned or killed if returned to Ethiopia due to his past involvement with the armed forces and the assistance he provided to asylum seekers like GINBOT 7 through his interpreting work and religious activities while in [Country 1].·In attempting to obtain his birth certificate and police clearance through his brother in Ethiopia, the local authorities found documents stating his involvement with the PDRE Army and reported him to the local police for arrest. ·Although not harmed in Ethiopia physically, his flight into [Country 2] was psychologically scarring.·He has not returned to Ethiopia since 1991 and those who took control of the country are still in power. Due to his military profile and being a PhD graduate and preacher, he will be a prime target for the current government. His support for GINBOT 7 members has put him on a political watchlist.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration. 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). 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), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision. 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 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.[3] [3] 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.

Ratio Decidendi

Legal Principle Established

The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report,[11] which is the most recent DFAT country report prepared for this purpose.CONSIDERATION OF CLAIMS AND EVIDENCE[11] DFAT Country Information Report: Ethiopia, 12 August 2020. Analysis, reasons and findings The applicant has made a number of claims which the Tribunal has considered, both individually and cumulatively. These claims were discussed with the applicant at the hearings and were the subject of detailed written submissions from the applicant’s representative.Country of reference and third country protection 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. As noted earlier, the applicant has resided for extended periods in [Country 2] and [Country 1] prior to coming to Australia in 2011. The Tribunal notes that the applicant was granted student visas to reside in [Country 1] during his studies, and those visas have expired as shown in the passports supplied to the Department and noted in the delegate’s decision. The applicant submitted he had no right to reside in [Country 1]. The Tribunal accepts on the basis of the material before it that the applicant no longer has a current right to reside in [Country 1]. The applicant was granted refugee status by the [Country 2] Government and the UNHCR in 1992 and 1995 respectively. He claims he does not have an existing right to reside in [Country 2] since his departure in 2002. As noted in the delegate’s decision, the UNHCR registration certificate supplied by the applicant to the Department expired in December 2000. The Tribunal discussed with the applicant the analysis of the applicant’s refugee status contained in the delegate’s decision. The applicant agreed that he thought because he left [Country 2] in 2002 he no longer held refugee status there. As noted in the delegate’s decision, the [Country 2] legislation governing the Refugee Status Determination process does not explicitly contain any provisions to indicate that refugee status is automatically lost upon departure from [Country 2].[12] The Tribunal accepts it is plausible that the applicant still holds refugee status in [Country 2], however the Tribunal considers that on the material before it, in particular the amount of time the applicant has resided outside of the country and the changes in [Country 2] since his departure, the Tribunal is not satisfied that he has a current and existing right to reside in [Country 2]. On that basis, the Tribunal finds that the applicant does not have a current right to enter and reside in a country other than his country of citizenship, Ethiopia, and s.36(3) of the Act does not apply to him.The 2020 DFAT Country Information Report[12] [Source deleted.] The Tribunal notes that the applicant’s revised submissions contended that the 2020 DFAT Country Information Report, issued on 12 August 2020, should be afforded lower weight than other reports including those from the UK Home Office or non-government organisations because the report indicates that where sources aren’t cited it ‘may be to protect the source’ and as many sources are not cited ‘this leads to doubt as to how recent the information is, how reliable the information is and whether it is from an authoritative source’. The applicant also submitted that the age of the sources is often not clear and ‘other sources which are clearly dated may actually be information that is newer than the information from the latest DFAT report’.