1620511 (Refugee)

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

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 claims
Protection 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.
The applicant attended an interview with the Department on 15 June 2016 in which he claimed:
·He was in the PDRE armed forces for approximately 12 months, obtaining the rank of [rank]. This included his time in officer training. However, he worked under a general for one month between training sessions. His activities involved general administration.
·He believes he cannot return to [Country 2], as he has lost his refugee status through departing to [Country 1]. He also has no family or connections in [Country 2] and, being Oromo, he will be forced to join the OLF or be harmed by them if he refuses to do so in [Country 2]. He also fears harm from the Ethiopian government who will target him in [Country 2], as they did his former general and friends, as he is Oromo and a former officer, as well as being imputed with being an OLF member.
·He was not politically active in [Country 1] or Australia, however he did criticise the Ethiopian government regarding their actions towards those of Amharic and Oromo ethnicity during some sermons in [Country 1], prior to his retirement from the church in 2008. He also voiced some criticism against the government in his [thesis].
·His email was hacked in 2005 by an Ethiopian opposition member, who believed that he was sending information to the Ethiopian government arising from his employment as a translator with the [Country 1] government.
·He will be targeted on the basis of his Oromo ethnicity by the Ethiopian government, and his profile has been heightened through his former employment as a translator for [Agency 1], being critical of the government in his sermons while in [Country 1], as a former army officer in the PDRE government, a pastor, and being well-educated.
·He did not apply for asylum while in [Country 1], as he enjoyed better conditions and status on a scholarship and as a student, which he would lose if he obtained refugee status. He also did not wish to have to rebuild his life in [Country 1], as he had to in [Country 2], as a refugee, and he feared the animosity of the Ethiopian diaspora in the country due to his activities up to 2009.
·He delayed his application for asylum in Australia as he was on a valid visa up to that point, and was of the impression he would be able to apply for a further visa as he did previously.
·However, stricter visa requirements in Australia required him to obtain a police clearance and birth certificate and as he was unable to obtain them from Ethiopian authorities, he had no choice but to apply for a protection visa.
·When gathering information for a further stay visa application, due to his brother asking for a police clearance and birth certificate in Ethiopia, he came to the attention of the Ethiopian government authorities, who now wish to question him on return to Ethiopia. The applicant fears being placed into a reintegration camp as he will be imputed with anti-government views as an Oromo and former PDRE officer, as well as through his activities in [Country 1].
·He did not submit his application and/or inform the Department regarding his issues in obtaining paperwork as he was of the belief it would be a useless exercise. He did not inform the Department of his refugee status or personal history, as this information was not required in applying for the previous visas and he hoped that his brother would still be able to obtain the police clearance and birth certificate prior to the expiry of his current visa at the time. He stated his main residence as Ethiopia in his prior visa applications and on his PAX cards, as he had an Ethiopian passport, wished to avoid issues and planned to return to Ethiopia once the conditions improved.
·Although he fears returning to Ethiopia, he feels that his profile has increased and he has become more at risk of being harmed due to his brother requesting documents from the Ethiopian government in March 2015. He has been informed by his brother in Ethiopia that the authorities wish to question him on return to Ethiopia.
·He believes the forced closure of his sister’s [business] in 2013 and his brother’s [business] in 2015 was due to their profile as Oromo, and the applicant’s history.
·He will be harmed by the Ethiopian government due to being imputed as an anti-government supporter due to his Oromo ethnicity, prior position as an army officer for the prior government, and through his actions as an interpreter, criticism of the government as a pastor and the views stated in his thesis while in [Country 1]. He will also find it difficult to support himself due to his age and being identified as an Oromo and former military officer.
This summary, which was included in general terms in the delegate’s decision, was put to the applicant at the first hearing. He agreed it was accurate other than correcting the dates his email was hacked (2008–2009) and claiming he was in the military for more than 18 months, comprising 12 months training and around seven months’ service.
Submissions to the Department
The applicant submitted the following documents to the Department, through his (then) representative:
·Identity documents including an electronic Ethiopian passport issued in [2013] (issued while the applicant was in Australia) and expired paper passports valid from 2004 to 2006 (issued when the applicant was domiciled in [Country 2]) and 2006 to 2013 (issued when the applicant was domiciled in [Country 1]).
·A UNHCR Refugee Registration Card dated [in] 1995, issued by the UNHCR in [Country 2], and a letter from the ‘Office of the President’ dated [in] 1992 recognising the applicant’s status as a refugee in [Country 2].
·Selected pages of the applicant’s [thesis] titled ‘[title]’. The thesis included an acknowledgement to [General A] and [Leader A], who the applicant claims were members of the PDRE military.
The delegate’s decision
The delegate refused the visa on 11 November 2016. The applicant submitted a copy of the delegate’s protection visa assessment decision to the Tribunal.
The delegate accepted the applicant was an officer in the PDRE regime from 1990–1991 and that he fled to [Country 2] where he was granted refugee status. The delegate also accepted that the applicant was of Oromo ethnicity, is an ordained pastor, engaged in activities as a translator and faced issues from the Ethiopian community while residing in [Country 1] due to his position in the community.
The delegate did not accept that the applicant would be targeted by Ethiopian authorities on return due to his association with the PDRE given his relatively low rank, the length of time which has lapsed and current country information. Given the applicant’s lack of involvement with opposition or anti-government groups outside his interpreting services, the delegate found he was not of interest to authorities due to employment by [Agency 1] as a translator. As Christians receive support from the Ethiopian government and given his history of keeping a low political profile and being a Christian pastor, the delegate also found that Ethiopian authorities would not target him either for being a pastor and/or criticising the adverse treatment of Oromo and Amharic persons in sermons in Ethiopia. The delegate found that the applicant would maintain a low profile if returned to Ethiopia and would not be politically active, consistent with his past practice.
The delegate found Oromo peoples are not targeted on the basis of their ethnicity alone and that based on his prior practices, including his thesis, which did not directly criticise the government, and his stated desire to maintain a low political profile, the applicant would not be imputed with anti-government views on this basis, or as a pastor or as a former community leader. The delegate also did not accept the applicant faced a risk of harm due to inquires made to authorities by his brother, or on the basis of issues faced by his brother or sister. The delegate also found that the fact the applicant did not seek refugee status in [Country 1] when he believed he lost his refugee status in [Country 2], and despite having ties in [Country 1] and knowing that he would eventually have to return to Ethiopia, indicated he did not fear harm on return to Ethiopia at that time for the reasons now claimed. Similarly, the fact that he did not apply for asylum in Australia until the day his visa expired indicated his fear of harm was not as great as claimed.
Based on those findings the delegate was not satisfied the applicant was owed protection obligations under s.36(2)(a) or (aa) of the Act.
Review application
On 2 December 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.
The applicant attended hearings before the Tribunal on 19 March 2020 and 29 October 2020 to give evidence and make submissions in support of the review application.
The hearings were held during the COVID-19 pandemic. At the time the initial hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal determined it was reasonable to hold that hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal notes in this regard that the applicant’s representative was in [Country 3] at the time of the first hearing. The Tribunal notes that in response to the first hearing invitation, the applicant’s representative requested a delay of several months on the basis he was in [Country 3] and flights had been cancelled. He also noted he may have difficulty with an adequate phone connection. The Tribunal considered this request but decided it was reasonable to proceed with the initial hearing given it was unclear how long the pandemic would restrict travel and hearing arrangements and on the basis the hearing would commence hearing of the issues, evidence and arguments but could continue on a later occasion, ideally when in-person hearings resumed. The applicant’s representative was invited to participate via telephone and the hearing proceeded via telephone without any connection issues for the Tribunal, the representative or the applicant.
In proceeding with the initial hearing via telephone, the Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. At that hearing the Tribunal discussed with the applicant whether there were any changes to his claims as expressed in his application and at the interview with the delegate. The Tribunal discussed with the applicant the information on which he was seeking to rely in support of his claims and his intention to call witnesses in support of his application. The Tribunal indicated the applicant should submit written statements from any witness he was asking the Tribunal to contact to outline their evidence and to enable the Tribunal to determine if the witnesses would be contacted to give evidence at the hearing. A statement from [Witness A], who the applicant later called as a witness, was submitted following the first hearing.
The listing of the second hearing was delayed to allow it to be held once in-person hearings recommenced at the Perth registry. The hearing was further postponed to allow time for the applicant’s registered migration agent to return from [Country 3] and clear Australian quarantine processes.
The hearings were conducted in English, without the assistance of an interpreter. The Tribunal confirmed with the applicant at the commencement of the hearings that he did not require an interpreter and the Tribunal formed the view that the applicant was able to fully participate in the proceedings noting that the applicant had strong English language skills, including writing his [thesis] in English.

Prior to the first hearing the applicant submitted the following material to the Tribunal (in addition to copies of the material submitted to the Department prior to the delegate’s decision):
·Written submissions from the applicant’s representative addressing in detail matters raised in the delegate’s decision.
·A statutory declaration signed by the applicant on 13 March 2020.
·The applicant’s School Leaving Certificate from Ethiopia (High School) and [an] award from [College 2] awarded to the applicant on [date].
·Copy (original and translation) of the Constitution of the Ethiopian community in [Country 1] approved on [date].
·Letters and supporting documentation from [Seminary 1] dated 17 December 2007 and 16 May 2008 regarding the applicant’s participation in a program in [Country 4] and supporting documentation.
·A letter from ‘[a mission agency]’ dated 13 December 2009 to the [Country 4] Embassy in [Country 1] regarding the applicant’s participation in team training in [a Country 4 location] in February 2010.
·A letter from [a mission agency] dated 10 March 2010 to the [Country 4] Embassy in [Country 1] regarding the applicant’s participation in a leadership seminar in [Country 4] [between dates in] 2010.
·A letter from [Seminary 1] dated 22 July 2010 confirming the applicant’s participation in the 2011 Fall Session.
·A letter from former Ethiopian Armed Forces worldwide organisation dated 21 March 2015 to a range of persons including the President of the United States, the Pope, prime ministers of a range of countries including Australia, Canada and Great Britain and the UNHCR and ICC regarding human rights violations against former members of the Ethiopian army and police force signed by Ashebir Gebre.
·A copy of the applicant’s [thesis] titled ‘[title]’, dated [year] including inserted commentary from the applicant.
Prior to the second hearing the applicant submitted the following documents:
·A witness statement from [Witness A] dated 20 October 2020.
·Further written submissions from the applicant’s representative dated 26 October 2020, which included a review of country information including the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report – Ethiopia dated 12 August 2020 (the 2020 DFAT Country Information Report).
·A further written submission from the applicant’s representative submitted 26 October 2020 concerning a Ministerial intervention referral request, including the following evidence in support of the Ministerial intervention referral request:
oA certificate of appreciation to the applicant from [Church 2] dated 27 January 2019.
oA letter of support from [Church 3] dated 13 October 2020 noting the applicant’s work with the network of ministers supporting the professional development of pastors and his involvement in [a named Christian program].
oAn invoice from [a training agency], dated 30 March 2020 regarding the completion of a [course] by the applicant.
oDocument outlining a program for the [Christian Organisation 1] including a note from the applicant:
We were running prison ministry with [Christian Organisation 1] called [program 1]. I developed a discipleship teaching material which is 12 weeks course in various languages English, [and specified languages]. [Number range] students graduated and two baptized in [a program] since it was allowed to take them out. Here is the course outline and also I have the full teaching materials.
oAn International English language Testing System (IETLS) test report for the applicant dated [in] August 2010.
oCertificates of achievement from [Christian Organisation 1] to the applicant following completion of the ‘[named] Project’ at [a named prison] from October to November 2014 and from [another prison] from February to April 2015.
oA copy of the applicant’s [Master] qualification and academic record from [College 1], [Country 1].
oA copy of the applicant’s PhD from [University 1] and a copy of his transcript of academic record.
oA copy of a certificate of completion from [another Christian agency] for the applicant for completion of [deleted] – Leaders Training Program dated [in] 2019.
oA copy of a certificate of participation from [a college] for the applicant completing a Home Tutor Scheme Training Course.
oA copy of the applicant’s curriculum vitae.
oA copy of [the] Award from [College 2] awarded to the applicant on [date].
oA character reference from [Christian Organisation 2] dated 15 October 2020, noting the applicant’s participation in a range of ministry roles.
oA copy of [a named] magazine dated 1 May 2017 including an article from the applicant.
oA letter from [Church 2] dated 15 October 2020 noting the applicant’s service to the community.
oA copy of a page from the Australian Government Department of Education, Skills and Employment website with a note from the migration agent noting that as per the Department, the visa applicant’s PhD from [University 1] is the equivalent of an Australian PhD.
oCertificate of recognition from [a named] Project [Men’s Group] for the Protection of Violence Against Women and acknowledgement as a supporter of White Ribbon dated [in] September 2018.
oA certificate of appreciation to the applicant for volunteering during 2015 for [a named agency’s] Migrant Support Programs.
The Tribunal notes that submissions on the Ministerial intervention referral request indicated that those documents “were submitted only in support of the request for referral for Ministerial Intervention”. However, the submissions went on to state: “While these documents were not intended as a supporting document for his protection claim. You may still wish to consider them for the purposes of verifying any claims of employment or education relating to the protection obligations assessment.” The Tribunal notes that to the extent the documents are relevant to considering the applicant’s protection claims the Tribunal has had regard to them in that context.
Following the second hearing the applicant submitted the following material:
·Further submissions from the applicant’s representative dated 13 November 2020 addressing issues arising in the second hearing.
·A copy (original and translation by the applicant) of a ‘[Power of Attorney] Letter’ dated [in] 2015 for the applicant in the name of his brother issued by [an Ethiopian agency] with a note from the applicant’s representative offering to obtain an official NAATI translation if required. Given the nature of the document the Tribunal did not consider it was necessary to obtain an official translation.
In submissions to the Tribunal, the applicant disputed findings of the delegate and claimed that he is at risk of harm in Ethiopia. The applicant submitted that the delegate had failed to consider the applicant’s cumulative adverse profile and in particular his ‘sur place’ claim arising out of the 2015 request for documents in Ethiopia. He submitted that the 2015 request for his birth certificate and police check initiated a full background check, and the accumulation of his circumstances created a sur place claim such that there is a real chance of harm on return to Ethiopia.
The applicant submitted that:
while he has tried to avoid politics, his leadership positions amongst the Ethiopian diaspora nevertheless resulted in others believing that he had a political opinion and took sides. Pro-government supporters noted that he helped people apply for asylum and at the same time opposition supporters wanted to control the community for their own benefit and accused him of supporting the government. He knows important information about political asylum seekers, or the Ethiopian government may believe that he has valuable information about them given that he helped to translate statements and interpret for them. Obviously the government would not be able to torture him in [Country 1] but it would be very plausible in Ethiopia.
The applicant claimed that there was a real risk that upon return to Ethiopia he would be interrogated, tortured and imprisoned. Considered cumulatively, his background as an army officer of the PDRE regime, critic of the government through his thesis, a person with a connection to and knowledge of opposition supporters in [Country 1] through the Ethiopian diaspora and his role providing interpreting services to asylum seekers would mean that Ethiopian authorities would expect that he has information that would be of interest to them. He may further be imputed to be an anti-government supporter, including of opposition parties such as the OLF, as he has not vocally supported the government as a community leader.
The applicant maintained that the discovery by local authorities in 2015 of his PDRE army links was the trigger for the opening of investigations leading him to have a well-founded fear of harm. He claimed that the government has a history of torturing people to obtain information and confessions.
Following the hearing the applicant further submitted that the fact he had been issued with an Ethiopian passport which was renewed on two occasions did not suggest he was not of interest to the authorities because there would have been no reason based on his standing as a pastor and community member for him to have raised suspicions prompting further checks at that point, and further, that the Ethiopian government likely does not have sophisticated IT systems enabling it to perform advanced identity and security checks.
In the event the Tribunal was not satisfied the applicant was owed protection and affirmed the decision under review, the applicant asked the Tribunal to consider referring the applicant for Ministerial Intervention on the basis of his contributions to the Australian community.
The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below. The Tribunal also discussed with the applicant relevant country information, including information contained in the 2020 DFAT Country Information Report.[2]
[2] DFAT Country Information Report: Ethiopia, 12 August 2020.
The Tribunal indicated to the applicant at the commencement of the second hearing that he should not assume that any of his claims have been accepted by the Tribunal, even if they had been accepted or not addressed directly by the Delegate. The Tribunal indicated that it considered that all aspects of his claims were in issue before it, including whether he satisfied each of the criteria of ss.36(2)(a) and 36(2)(aa).
ISSUES
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.
The issues in this review are whether there is a real chance, if the applicant returned to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ethiopia, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
DECISION MAKING FRAMEWORK
Criteria 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.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[4] Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[5]
[4] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[5] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[6] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[7]
[6] MIMA v Rajalingam (1999) 93 FCR 220.
[7] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[8] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[9]
[8] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[9] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
The Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held. If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[10] The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.
[10] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].
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 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,[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’.
The Tribunal has considered these submissions but does not accept them for a number of reasons. Firstly, having submitted that the Tribunal should place less weight on the most recent DFAT Country Information Report for the reasons stated above, the applicant’s submissions then heavily cite the 2017 DFAT Country Information Report[13] (the 2017 Report) in support of the applicant’s claims. This is despite the fact the 2017 Report is presented in a format which is consistent with the 2020 DFAT Country Information Report, including with respect to the reference to sources in paragraph 1.4. The obvious difficulty with this position is that the 2017 Report was prepared and published prior to what is generally recognised in country reporting to be a significant shift in the political landscape in Ethiopia through the formation of a new government under Prime Minister Abiy. Indeed, a number of the sources cited by the applicant were prepared prior to the Abiy government coming into power and while those sources may be useful in understanding the historical landscape of Ethiopia, they present a challenge with respect to assessing the current landscape, including with respect to the PDRE.
[13] DFAT Country Information Report: Ethiopia, 28 September 2017.
Secondly, sources the Tribunal was urged to prefer, including reports of the UK Home Office, frequently cite and rely on DFAT Country Information Reports on Ethiopia, suggesting they are regarded as a credible source of country information.[14]
[14] See for example the UK Home Office, Country Policy and Information Note, Ethiopia: Opposition to the Government.
Thirdly, the DFAT Country Information Report is prepared for a particular purpose as stated in paragraph 1.1 and 1.2 of the report. The Tribunal regards that it is to be read and understood in that context. Further, and in any event, the Tribunal has considered a range of sources including those cited by the applicant, particularly with regard to assessing the current situation in Ethiopia or where the 2020 DFAT Country Information Report does not cover certain aspects of the applicant’s claims.
Finally, the Tribunal notes that while the applicant made a general submission that the 2020 DFAT Country Information Report was not as reliable as other sources of country information, the applicant failed to cite any specific instances of where the information should be treated with care or given less weight, urging the Tribunal instead to accord less weight to the report as a whole.
For these reasons, the Tribunal does not accept the applicant’s submission. The Tribunal has given consideration to the DFAT 2020 Country Information Report where relevant to the applicant’s circumstances and claims and places weight on the report as a current assessment of the circumstances prevailing in Ethiopia at the time of writing and prepared for use in protection determination proceedings. The Tribunal notes that it has also had regard to a broad range of other sources of independent country information in assessing the applicant’s claims. The Tribunal’s consideration of country information is detailed further below.
Delay in seeking protection and passports
As discussed at the hearing, the delegate’s decision noted that the applicant did not apply for asylum in his eight years in [Country 1] or in Australia until just before the expiry of his third student visa, in August 2015, having arrived in Australia in January 2011. The delegate found the applicant’s failure to apply for asylum in [Country 1] suggested he did not want to reside permanently in [Country 1] and that his preference was to live in [Country 4] as indicated by his nine visa applications to [Country 4] from 2008 until 2011, when he decided to reside in Australia.
As discussed at the hearing, the applicant told the Tribunal he believed he lost his right to refugee status in [Country 2] when he left to study in [Country 1] in 2002. He claims to have left [Country 1] due to threats from the Ethiopian government and opposition supporters. He claims that he came to the attention of authorities in Ethiopia due to his military service in 1989–1990, his [thesis] in [year] and his work as an interpreter in [Country 1] in 2007–2009. Further, the issues regarding the applicant’s birth certificate and police clearance occurred in March 2015, yet he did not apply for the protection visa until August 2015 on the last day of his student visa.
Given that the applicant held an Ethiopian passport and understood he had no right of return to [Country 2] or [Country 1] but would be returned to Ethiopia once his temporary visa expired, the Tribunal considers that his delay in seeking protection contributes to doubts as to the extent of his claimed fears arising from events in [Country 1] and his personal profile in Ethiopia.
In response, the applicant said he had been unable to travel to [Country 4] even though he got a scholarship there. He said he didn’t want to apply for refugee status in [Country 1] because the benefits associated with being on a student visa were much higher than being a refugee. He said it might have cost him his scholarship. He said in Australia he was planning to apply for a further student visa but then he had issues getting documents from Ethiopia and he ‘just felt hopeless’. He said he thought maybe things would change.
The Tribunal put to him that the fact he had previously been given refugee status in [Country 2] suggests he would have been aware that was an option if he genuinely feared harm on return to Ethiopia. He said he was at risk for his activities and profile. He said trying to get the security clearance was a big risk from him as that is what triggered interest in him.
The Tribunal is not persuaded by some aspects of the applicant’s explanation. Firstly, the applicant had ample opportunity to seek advice and assistance in Australia following his arrival here and the Tribunal regards that he would have done so in a more timely fashion if he had come to Australia to escape persecution or threats from Ethiopian groups in [Country 1] or if he feared harm on return to Ethiopia due to his former military service, criticism of the government or imputed political profile. The applicant offered no evidence to support his claim that his scholarship status would be threatened by an application for asylum in [Country 1]. In any event, this consideration does not explain his decision not to seek protection in [Country 1] once his studies were complete. The Tribunal finds the applicant’s failure to apply for protection earlier is an indication that he was not fearful of serious harm on return to Ethiopia when he arrived in Australia in 2011.
Further, while the applicant claims that it was his request for documents in 2015 which triggered the interest by the authorities in his personal history, he also claims the authorities were aware of his work in [Country 1] as an interpreter, preacher and academic. All these activities were engaged in many years prior to the lodging of his application in 2015 and the delay suggests he was not fearful of serious harm from Ethiopian authorities with respect to them, notwithstanding his temporary visa status in [Country 1] and in Australia. This contributes to doubts regarding his delay in seeking protection.
The Tribunal also raised concerns with the applicant regarding his capacity to obtain a series of Ethiopian passports, including as late as 2013, despite his claims to be known to authorities and to have an ethnic and political profile that puts him at risk of persecution from them. The Tribunal notes the final of those passports was an electronic or machine readable passport from which it can be inferred a central database of personal information linked to the passport exists and is maintained by the Ethiopian government.
At the hearing the applicant told the Tribunal he had never provided a police clearance to obtain those passports. He said the first was a paper passport obtained in [Country 2]. The second was processed in the embassy in [Country 5] and he sent away for it. That was also a paper passport. The third was an electronic passport and he said he also had to sign paperwork for that. He said that wasn’t processed in Australia either but was sent to [Country 5] and then to Ethiopia. The Tribunal notes the Ethiopian Embassy in Australia was established in December 2013.
The Tribunal put to the applicant that country information suggests fingerprints and police clearances are required to obtain passports and it appeared likely this has been the practice at least since paper passports were no longer issued after 2010. The applicant said he did have to provide his fingerprints and get an Australian police clearance. The Tribunal put to the applicant that the fact he had been able to obtain three Ethiopian passports might suggest he was not of interest to Ethiopian authorities. He said the Ethiopian system was not centralised and any information is in a paper file form so the authorities wouldn’t have that information on his background. He said it only came up when his brother went to request documents (police clearance and birth certificate) at the local authority where he had lived with his uncle from middle primary school to high school so he could apply for a [specified] visa or permanent residency in Australia. He said he went to the local authority (kebele) and said he was looking for police clearance and a birth certificate and they went to look for the file and when he joined the army he had to get permission from the local authority. He said that was what triggered it.
The Tribunal put to the applicant a concern that the fact that Ethiopia had moved to electronic, machine readable passports suggested that records of passport holders would be centrally maintained, whether electronically or in paper form, and it seemed likely then that security checks would be triggered with respect to passports being issued, if indeed it triggered those sort of checks when birth certificates or police clearances were obtained.
The 2020 DFAT Country Information Report provides the following information with respect to passports in Ethiopia:[15]
Passports
All Ethiopian citizens are legally entitled to obtain an Ethiopian passport. To obtain a passport, an applicant must present: a completed passport application form; an application fee; a national identification card or government employee card (for applicants over the age of 18); a birth certificate (for applicants between six months and 18 years of age); a clinic card or letter from the institution of birth (for applicants under six months of age); passport photographs; and a recently issued police clearance certificate. Fingerprints are also taken at the time of application. Passports can be obtained countrywide, through local branches of the Immigration Office.[16]
[15] DFAT Country Information Report: Ethiopia, 12 August 2020 at [5.57].
[16] This information is consistent with that contained in the DFAT Country Information Report: Ethiopia, 28 September 2017 and DFAT Country Information Report: Ethiopia, 20 April 2016.
Prior to April 2010, Ethiopian diplomatic missions abroad issued handwritten passports. While this practice has officially ceased, some missions continue to produce handwritten passports. Some handwritten passports remain in circulation and are valid for travel.[17]
[17] DFAT Country Information Report: Ethiopia, 12 August 2020 at [5.58].
The DFAT report suggests that Police Clearance Certificates (‘A Certificate of Good Conduct’) for migration purposes can only be issued by the Federal Police Forensic Investigation Department in Addis Ababa. A police clearance certificate confirms the applicant has never engaged in any criminal activity. Any person who has resided in Ethiopia for more than six months can obtain a police clearance certificate following payment of a fee and presentation of: a formal request letter seeking issuance of a police clearance certificate for migration purposes; a copy of the applicant’s national identity card or passport; three passport-sized photographs; and original fingerprints of the applicant.[18] Birth certificates are issued by the Vital Events Registration Agency (VERA) via the local administrative (kebele) office, within which jurisdiction the applicant was born.[19]
[18] DFAT Country Information Report: Ethiopia, 12 August 2020 at [5.53].
[19] DFAT Country Information Report: Ethiopia, 12 August 2020 at [5.42]; this information is consistent with the information contained in the DFAT Country Information Report: Ethiopia, 28 September 2017 and DFAT Country Information Report: Ethiopia, 20 April 2016. The 2016 Report states that a new style of certificate began being issued in 2012.
In written submissions following the hearing the applicant maintained that his ability to obtain a passport did not suggest he was not at risk of harm in Ethiopia because he was able to obtain his initial passport because:
·He was a member of his church in high standing, having graduated top in his class at a Christian college and obtained a scholarship to study in [Country 1], and also served as a Sunday school teacher;
·His accomplishments as a pastor encouraged people to help him. There were two people from church who worked in the Ethiopian [embassy].
·The church members who worked at the Ethiopian embassy would be likely to have advised the passport interviewer that he was a fellow church member of good standing applying to do higher [studies], and thus deemed as low risk. Thus they would not need to do thorough background checks.
Further, the applicant submitted that the DFAT 2020 Country Information Report account of the requirements for a passport was not consistent with the information on the Ethiopian embassy website in Canberra, which the applicant submits provides that ‘to replace an expired passport, a national identity card is not required, nor are police clearances and fingerprints required.’ The applicant submitted that given the lack of information required for a passport renewal, it suggests that minimal identity and security checks are done. The applicant replied the thing which triggered it was when he sought his birth certificate from the local authority.
With respect to replacement of an expired passport, the Ethiopian Embassy – Canberra website provides:[20]
[20] Passport Services | The Embassy of the Federal Democratic Republic of Ethiopia – Canberra Australia (ethiopianembassy.net)
REQUIREMENTS FOR REPLACEMENT OF AN EXPIRED PASSPORT:
o2 Copies of the completed Passport application form.
o4 recent colour photographs of the applicant.
oA letter which assures the Embassy that the applicant is not the citizen of another country.
o2 copies of the applicants residency Visa for Australia or New Zealand.
o2 certified copies of your old Ethiopian Passport.
oPassport application fee, pay service fees in cash at the Ethiopian Embassy or by Australia Post Money Order, or International Bank Cheque (Australia Post Money Orders and Bank Cheques must be payable to the “Ethiopian Embassy”).
oA prepaid self-addressed trackable and registered envelope for the return of the new Passport, please keep a copy of the tracking number to follow up your application.
oApplicants whose passport was issued prior to [deleted] and applicants who have never submitted their fingerprints and are over the age of 14 must submit their fingerprints with their application.
(Hyperlinks omitted.)
The Tribunal notes that this suggests that fingerprints are required for passport renewals where they have not previously been provided, though it is not clear from the information when this requirement was introduced, although the reference to pre-2000 (GC) passports now requiring fingerprints to be provided suggests that the requirement may have applied to passports issued from 2000. Electronic passports were introduced in 2010. In any event, the Tribunal notes the applicant told the Tribunal he provided an Australian police clearance and fingerprints when he applied for his 2013 passport renewal.
These matters are considered further below.
Harm as a former PDRE officer or returned asylum seeker
When asked why the applicant was seeking protection in Australia, the applicant said the first reason was that he was a former military officer in the Ethiopian government who had worked for a general who was close to the former president. He told the Tribunal he was given the task of defending Addis Ababa and when the government lost the war he had to flee to [Country 2] where he was granted refugee status.

(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 2231

30 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Natural Justice