1703498 (Refugee)

1703498 (Refugee) [2020] AATA 1497 (7 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703498
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:L. Symons
DATE:7 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 07 May 2020 at 5:22pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – member of the Tigray People’s Democratic Movement (TPDM) – credibility issues – evasive answers – procedures to become a member of the TPDM – inconsistent evidence – new claims raised late in process – particular social group – ship deserter – failed asylum seekers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIBP v SZMTA [2019] HCA 3
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 on 14 February 2017 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, arrived in Australia [in] September 2015 as the holder of [a] Temporary Maritime Crew Visa. He was reported as a deserter by the Master [later in] September 2015, and his visa ceased by declaration effective 0830 hours on [the same day], when he became an unlawful non-citizen.
The applicant applied to the Department of Immigration (the Department) for a subclass 866 Protection visa on 26 October 2015 and the delegate refused to grant the visa on 14 February 2017 on the basis that he was not a person in respect of whom Australia has any protection obligations. On 28 February 2017, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 15 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.
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 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, 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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS
The applicant’s claims
The applicant’s claims in his application for a Protection visa lodged on 27 October 2015 are summarised as follows:
·He was born on [date] at Mekelle in Ethiopia. He is of Tigray ethnicity and belongs to the Ethiopian Orthodox religion.
·His father worked as [an occupation] and passed away in 2003. His mother is a housewife. He has [number of siblings]. He is single and has no children.
·He completed a [Qualification 1] in 2008. He then worked [for] [Company 1]. This included 1 year of training at [School 1] in Addis Ababa. He commenced this training [in] March 2010. He worked at [Company 1] for 2 years [until] September 2012.
·[In] September 2012, he commenced 6 months training at [School 2] in Bahir Dar. He then worked for [School 2 until] March 2015. On 8 March 2015, he joined a [ship] [working] for a [Country 1] company called [name].
·[in] November 2013, he became a member of the Tigray People’s Democratic Movement (the TPDM). He was introduced to the Tigray People’s Democratic Movement (TPDM) by a friend named [Mr A]. He wanted to support TPDM because he was unhappy with the way the Ethiopian government was operating. He believed the Tigray people were suffering a lot.
·He kept his membership of TPDM a secret and the only person who knew about it was [Mr A]. His only involvement with TPDM was to contribute money which he did monthly. He contributed the equivalent of US$[amount] per month from November 2013 and increased the contributions to the equivalent of US$[amount] per month from March 2015. He gave this money in cash to [Mr A] who forwarded it to the TPDM.
·When he started his job on the ship, his family received part of his income. His sister [Ms B] paid his contribution to TPDM in cash to [Mr A] on his behalf. She was not aware of what the money was for. He kept his membership of TPDM a secret because he feared harm from the Ethiopian government. [Mr A] also kept his membership of TPDM a secret for the same reason.
·The ship he was working on departed [Country 2 in] September 2015 to travel to Australia. During the voyage to [Australian city 1] he had no access to the internet and was unable to make any telephone calls. On arrival in [Australian city 1] [in] September 2015, he obtained a SIM card and contacted a friend named [Mr C] who lives in his village.
·[Mr C] told him that Mola Asghedom and part of the TPDM were returning to Ethiopia from Eritrea and at an interview on the border Mola Asghedom stated that he was working with the Ethiopian government. He checked the online news and found out the events that preceded this. He found out that TPDM had merged with other opposition parties and that Mola Asghedom had provided information about TPDM to the Ethiopian government.
·He tried to contact [Mr A] but was unable to do so. His ship departed [Australian city 1] and travelled to [Australian city 2] arriving in [Australian city 2] [in] September 2015. Whilst enroute to [Australian city 2] he searched for more information online. He believes that the Ethiopian government now knows that he is a member of TPDM and he may be at risk of serious harm if he returns to Ethiopia. It is too dangerous for him to return to Ethiopia because there is a risk that the Ethiopian government will hunt him down and kill him. He made the decision to leave the ship.
·He has not heard from [Mr A] despite trying to contact him. He has not contacted his sister to collect any further money and she has not heard from him. He is concerned for his safety. He spoke to another friend [who] lives in the same town as [Mr A]’s mother and he told him that she does not know where [Mr A] is either. She told him that some unknown men had visited her house twice looking for [Mr A].
·Since he departed Ethiopia in March 2015 for employment purposes, the situation for TPDM supporters in Ethiopia has become much more dangerous. The former leader of TPDM, who was operating out of Eritrea, has returned to Ethiopia and provided authorities with the names and personal details of TPDM supporters. He fears his name and details are amongst those provided to authorities in Ethiopia. He fears he will be arrested and detained by Ethiopian authorities should he return.
·He has heard that the Ethiopian government is looking for members of TPDM. Whilst it is not illegal in Ethiopia to support TPDM, he fears that he will be killed because he is a member of TPDM. He has heard of TPDM members being kept in secret prisons, killed and their bodies secretly disposed of. He fears that he will be subject to similar mistreatment and harm.
·He is also at risk of serious harm from the Ethiopian government because he has sought asylum in Australia. He is aware that failed asylum seekers are brutally mistreated by the Ethiopian government. He fears that he may be detained, mistreated and suffer physical torture or punishment if he returns to Ethiopia.
·He fears that the Ethiopian government knows that he deserted his ship because his job was arranged through an Ethiopian agent who is likely to have made the notification. His ship’s Captain and the ship’s owner have reported his desertion to his agent [who] has a duty to report this to the Ethiopian authorities.
·There is no place in Ethiopia that is safe for him. The Ethiopian government controls the Police, the Military and the Courts and there is no way for him to seek protection against harm from the Ethiopian government. There are no non-government organisations operating in Ethiopia that can assist him or provide him with protection. The Ethiopian government has a history of taking action against anyone who opposes it.
The applicant attended an interview with the Department on 8 February 2017. At the interview, he provided the delegate with a Statutory Declaration dated 2 February 2017 attested before a Solicitor/migration agent. The Statutory Declaration set out his claims in his visa application in more detail. He reiterated his written claims at the interview.
The applicant filed with the Department his Seaman’s Work Licence and a work reference dated [in] February 2017 from the Director of [named company]. He has also provided the Department with country information on the political situation in Ethiopia.
The applicant has also provided the Tribunal with country information on the political situation in Ethiopia. On 8 October 2019, the Tribunal received a typed document from him referred to as a ‘New Supporting Statement of Claims’. The document is unsigned and undated. In this document, he refers to and quotes from various websites, asserts that the delegate was biased, did not consider all the relevant facts, relied on ‘unsubstantiated biased information towards Tigrayan people’ and misunderstood his evidence and reiterated his previous claims. He also made the following new claims:
·In 1997, his mother’s younger brother was detained, tortured and killed by Tigray regional security personnel. He was morally, psychologically and emotionally affected by his untimely and unexpected death. This led to his dislike of the TPLF government’s policy and human rights violations.
·Some months after he became a member of TPDM he attended a secret meeting with [Mr A]. He used to meet him two to three times a week at different [places]. The meetings progressed to a division of duties. His duties were to nominate new members, distribute pamphlets and printed materials and get information from other sources. They actively worked on getting the support of the younger generation as they made up a majority of the population and their support was key for change.
·[In] February 2019, at about 8.30pm three undercover security people armed with pistols went to his parents’ home and questioned his mother about his whereabouts. They searched the house for weapons, documents and other valuable materials. They took his laptop, two filing folders and general filed printed materials. They took his mother and sister [Ms B] to the Police Station for questioning. They were kept at the Police Station for 3 days without formal charges. They released his mother on bail as her health was deteriorating. His sister was not released for 25 days. She was tortured, raped, interrogated and exposed to hardship. She was unable to give them any information about his involvement with TPDM as she was not aware of it.
·His sister was released on bail [in] February 2019. She did not return to work immediately as she was not well. On her return to work, she was issued with a letter of termination. His family has been exposed to economic hardship. He is the sole financial supporter of his grandmother, mother and [siblings]. His family are isolated and living in fear.
·The Tigray People’s Liberation Front (TPLF) are doing the same thing to Arena party members. This party is an opposition party based in Tigray. If he returns to Ethiopia he will be arrested, detained and killed by the TPLF because they know he is in Australia and has sought asylum. There is no where in Ethiopia that is safe for him.
At the end of the Tribunal hearing, the applicant stated that he had two untranslated documents that he wished to provide the Tribunal. He was given further time after the hearing to have the documents translated into English and submitted to the Tribunal. The Tribunal subsequently received two translated documents the details of which are referred to below.
Receiving country
The applicant claims to be a citizen of Ethiopia. The Tribunal has before it a copy of his Ethiopian passport. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Ethiopia. The Tribunal finds that Ethiopia is his receiving country for the purpose of assessing his claims for protection under the refugee criteria and under the complementary protection criteria.
Third country protection
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.
Assessment of claims
The applicant gave evidence that his application for a Protection visa was prepared by [a community centre] based on information provided by him which was true and correct. When asked whether he was satisfied that his visa application was accurate and complete, he responded that it contained insufficient information and he was told that it could be “clarified” during his interview. When asked whether he clarified the information during his interview, he responded that he did not explain everything in detail as there was insufficient time.
The Tribunal notes that the applicant filed a Statutory Declaration, that was signed before a Solicitor/migration agent, during the interview and this Statutory Declaration set out his claims in further detail.
The Tribunal asked the applicant whether there had been any changes in his circumstances since he filed his visa application. He responded that something happened to his family in February 2019. When asked why he does not want to return to Ethiopia, he responded that the government is imprisoning members of TPDM. He made no mention of his claimed fears in relation to being a ship deserter and a failed asylum seeker.
During the hearing, the Tribunal discussed with the applicant his family, education, employment, where he lived in Ethiopia, his reasons for coming to Australia and why he fears returning to Ethiopia. The Tribunal found aspects of his evidence to be vague, evasive, inconsistent and unconvincing. He made new claims throughout the hearing and the Tribunal formed the view that he was manufacturing some of his evidence as he was giving it. He repeated country information on Ethiopia like someone who had memorised information rather than as someone speaking from personal knowledge. The Tribunal finds that he is not a credible witness for the following reasons.
First, in his visa application, the applicant claimed that he became a supporter of the TPDM in 2013 when he became a member. He used the words ‘member’ and ‘supporter’ interchangeably in his visa application. In his Statutory Declaration dated 2 February 2017, he claimed that [in] November 2013 he became a member of the TPDM. The Tribunal asked him when he became interested in the TPDM and he [responded] November 2013. When asked what the procedure was to become a member of the TPDM, he was evasive and could not answer the question. The Tribunal checked to make sure he understood the question and repeated the question a couple of times. He initially responded that everyone who opposes the government can become a member of the TPDM. He then stated that his friend [Mr A] recruited him and explained everything to him, but he could not tell the Tribunal what his friend explained to him.
When asked again what the procedure was to become a member of the TPDM, the applicant stated that after communicating with [Mr A] for one year, discussing politics, realising that they had similar views [Mr A] told him he was a member of the TPDM. He stated that some months later he also became a member of the TPDM but could not tell the Tribunal how he became a member. He stated that according to [Mr A] he became a member. He stated that he became a member [in] November 2013 when he started making financial contributions to the TPDM. If he and [Mr A] had been discussing politics for over a year before he became a member of the TPDM [in] November 2013, it is highly unlikely that he only became interested in the TPDM [in] November 2013 as stated.
The applicant gave evidence that he contributed [amount] Ethiopian birr a month (equivalent of US$[amount] a month) to the TPDM which increased to the equivalent of US$[amount] a month when he started working on the ship. He stated that he gave the money to his friend [Mr A] in cash for him to forward to the TPDM. He stated that he never received a receipt for his financial contributions. He stated that he continued to make the financial contributions until he came to Australia ([in] September 2015).

The applicant has not provided the Department or the Tribunal with a membership card, a letter, a receipt or any other evidence of his membership of the TPDM. He was vague in his responses to questions about the procedure to become a member and how he knew that he was a member of the TPDM. He is tertiary educated and appeared intelligent, resourceful and articulate in his presentation to the Tribunal. The Tribunal would expect him to have asked his friend some questions about the process to become a member of the TPDM and some evidence that his monthly financial contributions were going to the TPDM.
These issues raise concerns for the Tribunal in relation to whether the applicant was a member of the TPDM or just a supporter or neither and that [Mr A] kept the money he thought he was contributing to the TPDM. When the Tribunal raised these issues with him, he responded that when you became a member of an opposition party in Tigray you kept it a secret or else you would have been in trouble. He stated that he felt secure because his relationship was with [Mr A] and had the benefit of knowing the tasks they had to do. He stated that he was giving documents to [Mr A]. He stated that the cost of printing was more than the money he was giving to [Mr A].
The Tribunal raised as an issue with the applicant that, even if it accepts that he is a member of the TPDM, it had difficulty accepting that the Ethiopian government would be aware of this. He responded that all the top officials (in the TPDM) are in prison and they know all the members. He stated that that is why they went to his family home and intimidated his family. He stated that it is because the TPDM have been sending materials to him. (This is a new claim made at the hearing that had not been made previously). The Tribunal noted that if the Ethiopian government was aware that the TPDM was sending material to him they would have done something about it between 2013 and 2015 but nothing happened during this period. He agreed that nothing happened and stated that 2014 was the TPDM’s successful year.
The Tribunal is not convinced by the applicant’s response and it does not alleviate the Tribunal’s concerns. These issues raise concerns in relation to his credibility and the veracity of his claim that he became a member of the TPDM in 2013.
Second, in his Statutory Declaration dated 2 February 2017, the applicant claimed that he wanted to support the TPDM, even though it was dangerous for him to do so, because he was unhappy with the way the Ethiopian government was operating. He claimed that the Tigray people were suffering as a result of the Ethiopian government’s operations. He stated that he wanted to contribute to the TPDM because it was working towards seeking peace and establishing human rights in Ethiopia.
During his interview with the Department on 8 February 2017, the applicant claimed that he became a supporter of the TPDM because people were not happy as they were educated but there was limited employment. Shortly prior to the hearing, he filed a Statement of Claims with the Tribunal in which he made a number of new claims including that his uncle was detained, tortured and killed by the TPLF in 1997, he thereafter disliked the TPLF government and this was his main motivation to become a member of the TPDM.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that the changes in his evidence in relation to whether he was a member or supporter of the TPDM and his reasons for why he supported or, alternatively, became a member of the TPDM raised concerns in relation to the credibility of his claims. He responded that he was giving them information and it was the highlights. He stated that he thought he could explain everything in detail at the interview. He stated that when he became a member of the TPDM he did not actively participate for 3 months. He stated that he gradually became the recruiter of youth.
The applicant stated that, in relation to his uncle, he was only asked about his mother and sister at the interview. He stated that he did not explain it before because he was not asked about it. He stated that he has now included everything.
The Tribunal does not accept this explanation for a number of reasons. Firstly, in his Statutory Declaration dated 2 February 2017 he provided an explanation for why he joined the TPDM. He has provided evidence that he was assisted by lawyers from [named organisation] and other lawyers. His Statutory Declaration was signed before a Solicitor. He has therefore had the benefit of legal advice. He made no mention of his uncle’s death in his Statutory Declaration despite referring to why he joined the TPDM in that document. Secondly, he spoke about his reasons for joining the TPDM during his interview with the Department but made no mention of his uncle’s death.
The Tribunal would expect the applicant to put his best case forward in his visa application, but he made no mention of his uncle’s death in his visa application. The Tribunal would also expect that, if the “main motivation” for him joining the TPDM was the death of his uncle, he would have mentioned this in his detailed Statutory Declaration dated 2 February 2017 and during his interview with the Department when he was discussing his reasons for joining the TPDM. His failure to do so raises concerns in relation to the credibility of this claim and his credibility in general.
Third, in his visa application, the applicant claimed that he was only able to support the TPDM in secret so as to avoid harm and arrest. In his Statutory Declaration dated 2 February 2017, he stated “because it is dangerous for me to be a member of TPDM, my only involvement is to contribute with monthly payments.” During his interview with the Department, he stated that he gave money to a friend by hand and when he was working away from home his sister gave the money by hand to the friend when he called at the house.
Shortly before the hearing, the applicant filed an undated and unsigned document with the Tribunal titled ‘New Supporting Statement of Claims’. In this statement, he made a number of new claims including that he attended secret meetings with [Mr A] two to three times a week. He claimed that it quickly progressed to a division of duties and he started nominating new members, distributing pamphlets, printing materials, getting information from other sources and actively working towards recruiting young people to join the TPDM. During the hearing, he made further new claims including that he participated is a large meeting and passed on information to TPDM. When asked what information he passed on, his answer was non-responsive.
The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his failure to mention any of this in his visa application or during his interview with the Department raises concerns in relation to his credibility and the veracity of his claims. The Tribunal noted that it may find that he has fabricated these claims to increase his prospects of obtaining a Protection visa.
The applicant responded that the delegate did not receive the document beforehand and he handed it to the delegate on the day of the interview. He stated that if it was sent in a week before, the delegate would have been prepared for the interview. He responded that the delegate did not ask questions about the history or the documents. He stated that because he was not asked questions about the documents at the interview, he prepared documents now. When the Tribunal reminded him that this information should have been in his visa application, he responded that they prepared his visa application for him and he did not know about it. He then stated that there was a misunderstanding. He stated that there was no interpreter at the interview.
The Tribunal is not persuaded by this response for a number of reasons. Firstly, the applicant spoke good English during the hearing even though there was an interpreter there to assist him. Therefore, the Tribunal has difficulty accepting that he was unable to give this evidence at the interview because there was no interpreter there. He did mention that the interview was not very long so that may be a possible reason for not mentioning these new claims during the interview. However, that does not explain the issue in relation to the inconsistencies in his evidence.
Secondly, the applicant provided a statement to the Tribunal which is written in very good English. There is nothing on the document to indicate that it was prepared by someone other than him or that it was translated into English. This raises further doubts that he was unable to give evidence during the interview because he did not have an interpreter. Thirdly, he has had the benefit of legal advice and the assistance of lawyers to prepare his visa application and his Statutory Declaration dated 2 February 2017. The issue is why these new claims were not included in those documents.
Fourthly, the applicant’s evidence in relation to the delegate not getting the document until the day of the interview and not asking him questions about it makes no sense and does not address the issue raised with him. The Statutory Declaration dated 2 February 2017, that he provided the Department at the interview, contradicts the new claims he made in his statement to the Tribunal.
The contradictions in the applicant’s evidence in relation to what he did as a member of the TPDM raises serious doubts about his credibility and the veracity of his claims.
Fourth, in an undated and unsigned statement provided to the Tribunal shortly before the hearing, the applicant made new claims that on 2 February 2019 three undercover security people armed with pistols went to his parents’ home, questioned his mother about his whereabouts, searched the house for weapons, documents and other valuable materials and took his laptop, two filing folders and general filed printed materials. He claimed that they took his mother and sister [Ms B] to the Police Station for questioning, his mother was released on bail after 3 days, his sister was tortured, raped, interrogated, exposed to hardship and released on bail after 25 days. He claimed that she did not return to work immediately as she was not well and, on her return to work, she was issued with a letter of termination. He claimed that his family has been exposed to economic hardship and are isolated and living in fear. He claimed that he is the sole financial supporter of his grandmother, mother and [siblings].
The applicant has provided to the Tribunal two documents that have been translated into English. The first is titled ‘Support letter that she was under arrested for investigation accused by law’ and is dated 3 March 2019. It states ‘The accused person is [Ms B] who was the suspected and arrested on [day]/02/2019 for the investigation purpose. It is known that she was released after the relevant investigation carried out on [day]/02/2019. Therefore, we wrote this letter to confirm that she stayed with us for the investigation purpose from [day]/02/2019 until [day]/02/2019. With greeting.’ It is written by the ‘Assistance Sergeant, [specified] Unit’. (sic)
The second document is titled ‘Ref: Regarding job termination’ and is dated [in] February 2019. It states ‘as mention on the reference the person [Ms B] was [working] at [named employer]. It is known that starting on [day]/03/2017, she had a permanent [job]. She stopped attending without giving notice to the office. Starting from [day]/02/2019 until to day of [day]/03/2019. She could not attend to her work place so from today, we terminated her job and we are confirming that starting from today her position will be replaced by another worker.’ It is written by the ‘Position Manager’. (sic)
The Tribunal has concerns in relation to the credibility of these new claims. Firstly, the applicant claims that Mola Asghedom, the former leader of the TPDM who was operating out of Eritrea, returned to Ethiopia in 2015 and provided authorities with the names and personal details of the TPDM supporters and or members. He claims that he fears his name and details are amongst those provided to authorities in Ethiopia and that he will be arrested and detained by Ethiopian authorities should he return. The Tribunal finds it implausible that, if the Ethiopian authorities became aware that he was a member of the TPDM in 2015, they would have waited until 2019 before they conducted an investigation into him particularly in view of his new claims that he printed materials, distributed pamphlets, recruited youth to join the TPDM, passed information on to the TPDM and received materials from the TPDM.
Secondly, the applicant has not lived in Ethiopia since March 2015. His own evidence is that he had no involvement with the TPDM since then other than contributing a small amount of money to them until he came to Australia [in] September 2015. Thirdly, he has claimed that the Ethiopian authorities are aware that he is in Australia since he was reported for deserting his ship in September 2015. If they are, there was no reason for them to question his mother about his whereabouts in February 2019 as there would be no record of him returning to Ethiopia. Fourthly, he does not have the profile of someone who would be of interest to the Ethiopian authorities.
The Tribunal also has concerns in relation to the authenticity of the two documents referred to above. Firstly, the Tribunal finds it implausible that an official letter issued by the Police Department would end with the words ‘with greetings’. Secondly, the letter from the Police Department does not indicate, nor does the applicant claim, that his sister was charged with any offence. This is not consistent with the references in the letter to ‘the accused person’ and ‘accused by law’. Thirdly, the applicant claimed that his sister was released on bail. The letter makes no reference to her being released on bail nor is there a need for her to be released on bail if she was not charged with any offence.
The letter in relation to the applicant’s sister’s employment states that she did not attend work [from] February 2019 [until] March 2019. However, the letter is dated [in] February 2019 and refers to an event in the future. In view of the above, the Tribunal has concerns in relation to the authenticity of these documents.
The Tribunal raised as an issue with the applicant its concerns about document fraud in Ethiopia and the authenticity of documents he provides from Ethiopia. He responded that he cannot do anything to prove whether the documents “are real or not real” while he is in Australia.
In view of the above, the Tribunal is not satisfied that the applicant was or is a supporter or member of the TPDM and does not accept any of his claims that flow from that. The Tribunal is also not satisfied that the two documents referred to above are authentic documents.
Fifth, in his visa application, the applicant claimed that he fears that the Ethiopian government knows that he deserted his ship because his job was arranged through an Ethiopian agent who is likely to have made the notification. He claimed that his ship’s Captain and the ship’s owner have reported his desertion to his agent [who] has a duty to report this to the Ethiopian authorities. He claims to fear harm from the Ethiopian authorities for this reason. In his Statutory Declaration dated 2 February 2017, he claimed that he is at risk of serious harm because the Ethiopian government may have been notified that he left the ship because his job was arranged through an Ethiopian agent who is likely to have made this notification. The Tribunal discussed these claims with him during the hearing.
The Tribunal asked the applicant why he fears harm if he returns to Ethiopia as a ship deserter. He responded that the government is imprisoning his family and he is afraid that he will also be imprisoned for this reason. The Tribunal noted that he made this claim long before his family members were arrested. He responded that he remained in Australia after Mola Asghedom returned to Ethiopia and gave information to the Ethiopian government. When asked again why he thought he would have a problem in Ethiopia because he is a ship deserter, he responded because the government is imprisoning the TPDM members.
The applicant did not appear to be aware that he had made this claim. The Tribunal explained to him that this was a separate claim he had made and repeated the question. He responded that if he seeks asylum the government considers that he is opposing them. He stated that he has given information to another country which exposes the things they are doing to their people. He stated that this is the main reason they will kill him and imprison him if he returns to Ethiopia.
The Tribunal pointed out to the applicant that he has not provided the Australian government with any information that is not freely available on the internet. He responded that that is correct and it is information he can access. When asked why he claims the Ethiopian government would be angry with him for giving information to the Australian government which it is able to get without any help from him, he responded because he is a member of the TPDM and they can imprison him.
The Tribunal informed the applicant that it had asked the Country Information Service to undertake some research to find out what happens to ship deserters when they return to Ethiopia, but they were unable to find any mention of this. The Tribunal noted that this tends to indicate that it would not be an issue for him if he returned to Ethiopia. He responded that the main issue is because he is a member (of the TPDM) and because of his “political movement” they would imprison and kill him. He stated that the “chief reason is because I am a member of a political party”.
The Tribunal is not convinced that the applicant fears serious harm or significant harm, on his return to Ethiopia, because he is a ship deserter. His evidence tends to indicate that he was not even aware that he had made this claim. In any event, there is no evidence before the Tribunal to indicate that he would be at risk of harm because he is a ship deserter if he returns to Ethiopia.
When the Tribunal raised this as an issue with the applicant, he responded that factually it is correct and the Tribunal is right. He stated that he did not mean that he will be harmed. He stated that it has some influence. He stated that the political involvement is a “big deal” and he could be harmed or killed. He stated that ship deserter is not and will not cause “a big deal or big harm”.
On the evidence before it, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm if he returns to Ethiopia as a ship deserter.
Sixth, in his visa application, the applicant claimed that he is at risk of serious harm from the Ethiopian government because he has sought asylum in Australia. He claimed that he is aware that failed asylum seekers are brutally mistreated by the Ethiopian government. He claimed that he fears that he may be detained, mistreated and suffer physical torture or punishment if he returns to Ethiopia. In his Statutory Declaration dated 2 February 2017, he claimed that he is at risk of serious harm from the Ethiopian government because he attempted to seek asylum in Australia. The Tribunal discussed these claims with him during the hearing.
The Tribunal asked the applicant why he claims he will be at risk of harm if he returns to Ethiopia as a failed asylum seeker. He responded that the main issue is the political involvement. He stated that the second issue is that he disclosed country information that Ethiopia is not democratic. He stated that being a failed asylum seeker is not the main reason. This is not consistent with his written claims. He has also not provided any information to the Australian government that is not available on open sources on the internet.

The Tribunal discussed with the applicant country information from DFAT in relation to failed asylum seekers returning to Ethiopia. It states that:
Authorities typically welcome voluntary returnees to Ethiopia who are not outspoken opponents of the government. The government has on occasion publicised voluntary returns, in recognition of the Ethiopian diaspora’s contribution to the economy through remittances. There have been some reports of authorities monitoring voluntary returnees for a period following their return, but DFAT is not aware of any credible reports of voluntary returnees who are not active opponents of the government facing problems stemming from their status as failed asylum seekers.
However, DFAT assesses that people who return to Ethiopia and who are perceived as being political activists opposed to the government are likely to face a high risk of being monitored, harassed, arrested and detained, particularly if they continue to engage in political activities upon their return.
The applicant responded that he agreed. He responded that even those who are not active members are imprisoned. This is not consistent with the country information above. The Tribunal asked him on what country information he was basing this assertion. He responded that he follows the media and has the information at home. When asked whether he could provide it to the Tribunal, he responded that he has it at home and could provide it to the Tribunal. He was given further time after the hearing to provide additional evidence to the Tribunal. He did not produce this country information.
On the evidence before it, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm if he returns to Ethiopia as a failed asylum seeker.
The applicant has provided country information to the Department and the Tribunal in relation to the political situation in Ethiopia. The Tribunal has had regard to this country information.
Other considerations
The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Ethiopia and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.
Section 438 Certificate
The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on one page in his file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it referred to internal working documents and business affairs. The Tribunal informed him that the information subject to the s.438 Certificate relates to an internal email in relation to his documents and noted that he had already been provided with his documents such as his passport. The Tribunal informed him that this information was not relevant to the issues in his case. The Tribunal also informed him that the s.438 Certificate appears on its face to be invalid. The Tribunal invited him to make submissions on the validity of the s.438 Certificate and he declined to do so.
In light of the High Court decision in MIBP v SZMTA[1], the Tribunal is of the view that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.
Findings
[1] MIBP v SZMTA [2019] HCA 3
Having considered all the applicant's claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he fabricated his material claims for the purpose of obtaining a Protection visa.
The Tribunal accepts that the applicant was born on [date] at Mekelle in the State of Tigray in Ethiopia. The Tribunal accepts that his father passed away in 2003 due to illness. The Tribunal accepts that his mother, grandmother and [siblings] live in Ethiopia and are financially dependent on him. The Tribunal accepts that in 2008 he completed a [Qualification 1] and thereafter worked for [Company 1], [School 1] and [School 2] before commencing work [in] March 2015 [on] a ship.
The Tribunal accepts that the ship the applicant was on arrived in [Australian city 1] [in] September 2015 and in [Australian city 2] [in] September 2015. The Tribunal accepts that he deserted the ship [in] September 2015 and claimed asylum in Australia on 27 October 2015.
The Tribunal does not accept that the applicant was or is a supporter or member of the TPDM or that he has any desire to become a supporter or member of the TPDM. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal is not satisfied that he is at risk of serious harm or significant harm because he is a ship deserter if he returns to Ethiopia now or in the foreseeable future. The Tribunal is not satisfied that he is at risk of serious harm or significant harm if he returns to Ethiopia now or in the foreseeable future as a failed asylum seeker. The Tribunal does not accept that he was or is of adverse interest to the Ethiopian government or the TPLF.
In view of the above findings, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will suffer serious harm or significant harm for any of the reasons claimed if he returns to Ethiopia now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the refugee criterion?
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his actual or imputed political opinion, membership of a particular social group or any other reason set out in s.5J(1)(a) of the Act if he returns to Ethiopia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.
Having considered all of the applicant's claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Ethiopia now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
CONCLUSION
The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2020] AATA 1497

7 May 2020

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