1703914 (Refugee)

1703914 (Refugee) [2018] AATA 3088 (8 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1703914
COUNTRY OF REFERENCE:                  Ethiopia
MEMBER:Denis Dragovic
DATE:8 June 2018
PLACE OF DECISION:  Melbourne
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 08 June 2018 at 3:25pm

CATCHWORDS
Refugee – Protection visa – Ethiopia – Child applicant – Political opinion – Oromo Liberation Front (OLF) – Kinijit coalition volunteer – Race – Oromo – Detention – Demonstrations – Implicated in OLF records – Credibility issues – Family members in the civil service – Sur place actions – Father’s contrived political activism in Australia – Applicant’s father will subsequently be arrested and detained upon return – Impact of imprisonment on family – Mental health issues – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 91R(3), 424, 499
Migration Regulations 1994, Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
CPE15 v MIBP [2017] FCA 591
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 on 27 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
This is an application by a child of [age] born in Australia on [date] to parents [(the applicant’s father)] and [(the applicant’s mother)].
The applicant, whose parents are citizens of Ethiopia, applied for the visa on 5 September 2016. A birth certificate was provided which showed the applicant’s parents as being [names deleted]. Both parents provided Ethiopian passports as identity documents. Ethiopian Nationality Law Proclamation No 378/2003 states, ‘Any person shall be an Ethiopian national by descent where both or either of his parent is Ethiopian’. I accept that the parents are Ethiopian citizens and that the nationality law confers citizenship automatically to children of Ethiopian parents and as such I find that the applicant is a citizen of Ethiopia.
The delegate refused to grant the visa on the basis that the applicant’s parents were found to have no apparent political inclinations and that any future protests or political activities would not put the applicant at risk. The delegate’s decision was provided by the applicant to the Tribunal.
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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Mental health of applicant’s father and mother
Two hearings were conducted. At both hearings the mother refused to provide evidence claiming an inability to recall events and exhibiting an incapacity to focus on the matter at hand. Two psychologist reports were submitted prior to the hearing.
[Psychologist A] has seen the applicant’s mother on three occasions since 2013. In her submission dated 19 July 2013 she provided a clinical assessment including:
a.A forced return to Ethiopia would constitute a significant risk to the applicant and his parents
b.If the mother was to be left alone in Ethiopia she would struggle and ‘in all likelihood’ not function
c.On a number of occasions the applicant’s mother has considered suicide
d.There is a risk of the applicant failing to thrive based upon the distress of the parents
[Psychologist B], registered psychologist, provided a written submission dated 9 January 2018 in support of the applicant. The submission provided:
a.A summary of the applicant’s mother’s symptoms
b.The current treatment comprising of supportive therapy and practical cognitive behavioural strategies
c.A statement regarding the applicant’s mother’s claimed panic attack at the first hearing
d.Reference to having discussed with the applicant’s mother regarding her not providing evidence to the hearing
Following the hearing a further psychological report was provided by [Psychologist B] (Tribunal folder, folio 187) responding to issues raised by this Tribunal in which she states:
In terms of [the applicant’s mother’s] psychological wellbeing and her prospects for recovery, the stressors associated with an unresolved visa status, are likely to continue to exert a negative impact on her mental health, and present a barrier to her recovery. A visa resolution that meant a return to Ethiopia is likely to result in further deterioration of her mental health.
A letter was provided from [Doctor C], refugee health general practitioner at [a health service], who had seen the applicant’s mother on two recent occasions. The letter concludes that the applicant’s mother has experienced severe trauma in the past and continues to be traumatised by the ongoing uncertainty of the safety of her family.
A letter was provided from [Nurse D], a credentialed mental health nurse, registered practical nurse, registered nurse and registered midwife. In this letter she states the following:
a.She provided services to the applicant’s mother between 2013 and 2015
b.She gave two types of anti-depressants but thought that the applicant’s mother was sensitive to the medication
c.The applicant’s mother had passive suicidal thoughts
In a separate undated letter addressed to the then Minister, [Nurse D] wrote that the applicant’s mother was diagnosed with major depression and post-traumatic stress disorder and that she is on anti-depressant medication.
A letter from [a doctor] from [a named agency], who saw the applicant’s mother in February 2015 and again in March 2016. The letter provided a summary of the consultations and a note that ‘She was discharged from [our] care, as her well-being improved to a degree and her living conditions change’.
A timeline of engagement with health services was provided, showing a consistent need for support with different service providers, purportedly driven by the family’s move from one location to another.
The applicant’s mother did not provide evidence at the first hearing. The representative was put on notice of the Tribunal’s desire to hear from the applicant’s mother. At the second hearing the applicant’s mother was present but chose not to provide evidence despite the representative encouraging her to do so. I provided the applicant’s mother the opportunity to be sworn in, so that through the hearing if she wanted to provide evidence she could. The applicant’s father added that he didn’t believe that his wife was capable of providing evidence because of her psychological state. He encouraged her to try. The representative had explained the value of providing evidence. The applicant’s mother chose not to. She explained that everything has already been said. I concluded that under those circumstances she was free to go, to which the representative agreed.
Without the applicant’s mother participating in the hearing, an opportunity was lost to test the evidence provided by the applicant’s father. This is problematic considering that credibility issues were at the heart of the delegate’s decision and the separate tribunal decision for the applicant’s brother, provided to this Tribunal by the applicant.
The applicant’s father did not present any psychological reports. At the hearing he confirmed that he was not on any medication. I found the applicant’s father to be lucid and cognisant throughout the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
Summary of claims
The applicant is [specified] age. He fears returning to Ethiopia for reasons expressed by his parents. Those reasons relate to his father’s claims of having been imprisoned in 2006 for six months on suspicion of being associated with the Oromo Liberation Front (OLF), for subsequently joining the OLF and being identified by the government as continuing to provide support to a designated terrorist organisation. The applicant’s father also noted the circumstances of two of the applicant’s uncles, one being killed at a protest and another fleeing to [Country 1] and being granted refugee status, as evidence of the genuineness of his fears. The applicant’s father has also expressed claims related to his activities while in Australia.
In considering the circumstances of the applicant I will first turn my mind to determining the circumstances of the parents, as not only may their claimed persecutors extend their hand against the child but in addition the child will bear a burden as a result of what happens to his parents and suffer consequences even if he was spared by any persecutors.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Evidence
In addition to evidence submitted to the Tribunal in writing and through oral submissions, the applicant submitted documents from his family members’ earlier applications as evidence for the applicant including:
a.A submission dated 10 December 2012 by their then representatives
b.Statutory declarations by the mother and father dated 10 November 2010
c.Summary of claims dated 17 November 2010
d.Nurse’s review of the mother addressed to the Minister (no date)
e.[Country 1] refugee status recognition for the applicant’s uncle
f.Statutory declaration by the father dated 22 July 2011 and another dated 8 April 2013
g.Tribunal decision record for the applicant’s brother dated 27 February 2013
The applicant’s father and mother claim to be of Oromo ethnicity. I accept that they are Oromo as is the applicant.
The applicant’s father claims that he started his career as [an Occupation 1] working at [a government Organisation 1] between [specified year] and [year] and also studying part time to get a [related] degree until he graduated in [year]. He claims that there was a lot of pressure on people who aren’t members of the ruling party, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), so he left his job and opened his own business shortly after graduating. He estimates this to have been in January 2009. He rented a space and worked with the Ethiopian company [from] whom he would buy stock as well as with private [manufacturers] who would sell their stock through him without having to purchase it. He had the initial capital required from his savings and his uncle, from his father’s side, who was a businessman and had contributed money. He claimed that he didn’t require a lot of money to start the [business], as being a senior [Occupation 1] with a licence allows you to sell others’ products. He was given the title of senior [Occupation 1] through [a certain Ministry]. When he left Ethiopia he left the [business] as it was. Nothing was sold.
While working with [Organisation 1], he was requested to join the political party of the ruling government. He refused and he claims to have received a lot of pressure including not having his salary paid.
The applicant’s father claimed that the persecution against him for the reason of being Oromo extended to which university he had attended. He had high marks and could have attended Addis Ababa University, but he claimed that unless you are a member of the ruling party you are not allowed to attend government universities and so he attended a private university.
The applicant’s father claims to have been involved with the outlawed group OLF. His journey to being a supporter began with his involvement in the May 2005 elections. He was a volunteer for Kinijit a coalition of opposition parties. He worked in the lead up as a mobiliser and during the election as an observer. In December 2005 the applicant’s father claims to have been detained with questions being asked about the father’s uncle’s support of OLF. He was detained for six months in conditions that he described in a statutory declaration as being ‘inhumane’.[1] While detained he met two people who subsequently became his friends, [Mr D] and [Mr E]. He claims that he was released upon condition of signing a document in which he committed not to associate with any counter political organisation.
[1] 10 November 2010 Tribunal folio 107b at [20]
The applicant’s father claims to have formally joined the OLF in June 2007. He worked with [Mr D] and [Mr E] to raise funds for the OLF. They would meet clandestinely in the latter’s [business]. During these meetings [Mr D] would take minutes of the meetings and then take them home. I asked the applicant’s father why [Mr D] would keep minutes of meetings if they were clandestinely meeting as members of what the Ethiopian government has designated as a terrorist group. He responded that everything they do is confidential and in secret, but when it comes to fundraising it is important to keep a record. I put to him that it seemed implausible that after a meeting someone would then travel to their home with the meeting minutes in hand, risking being stopped and having them confiscated. He reasoned that it may be hard to understand but that is how it is done.
In June 2010 [Mr E] advised the applicant’s father to go into hiding as [Mr D] had been arrested, his house searched and minutes identifying their association with the OLF were found. The applicant’s father involvement in fundraising for the OLF was in clear breach of his condition when released from prison in 2005. So the applicant’s father claimed that he left his wife and went into hiding. During this time he claimed that she was being visited by security forces so he began to consider how to leave the country. In a statutory declaration[2] he wrote that it was too dangerous to cross a border so instead he chose to go back to Addis Ababa and go through an airport. I put to him that it sounded strange that it would be safer to go through the major international airport rather than a sparsely manned land border crossing. He responded that he wanted to cross to [Country 2] by foot but [Mr E] advised against doing so saying that it would put his life at risk. He added that [Mr E] may have bribed officials at the airport which would make it safer. So [Mr E] organised for him to apply for a visa to Australia. Once the visa was granted he stayed at a hotel near the airport until his wife joined him and they left together. A person met him at the airport and helped get them through. I put to him that he left with his own passport and visas for Australia and didn’t have a problem leaving through the airport. He responded that in part it was because his wife and mother had purchased the tickets.
[2] 10 November 2010 Tribunal folio 105b at [40]
The applicant’s mother and father had travelled to [Country 2] prior to coming to Australia on two separate occasions. The applicant’s father went [in] October 2008 to meet with a [company] who told him that they would supply [products] without requiring them to be purchased in advance. In late December 2009 through to early January 2010 the applicant’s mother went to [Country 2] to follow up with the company regarding her husband’s initial discussions. The applicant’s father stated that he did not go because he was worried that the Ethiopian government would arrest him. He said that during his first travel to [Country 2], prior to crossing the border, he was asked questions about whether he was going to [Country 2] to meet with the OLF. He claims that upon his return they warned him not to travel again. I asked him why he thought that they allowed him to travel to which he responded that maybe they were planning to follow him while in [Country 2].
The applicant’s father claimed that his wife was picked up upon her return from [Country 2] and taken to a police station where they interrogated her. I asked why they would have let her leave the country if they didn’t want him to leave again, to which he responded that they knew that she doesn’t have any political involvement.
The applicant’s father claimed that the government must have known that he had contacted an Oromo friend in [Country 2] who had organised the meeting with the [company] and that is why they gave him the warning. He suggested that having met with other Oromo friends while in [Country 2], it could be a reason why the government issued him the warning. I put to him that if that was the case, why they allowed his wife to travel to [Country 2], noting that country information suggests that the government negatively views family members of those with ties to designated terrorist groups.[3] He responded that the government probably wasn’t sure that the people he met in [Country 2] were rebels and so they would have allowed his wife to travel. He then mentioned that the warning he received was a written statement banning him for an unlimited time and that his wife got a similar warning. He was unable to produce a copy of the warning.
[3] Canadian Immigration and Refugee Board, Ethiopia: Treatment of relatives of members of opposition parties, especially the Coalition for Unity and Democracy (CUD) (2006 - 2007), 4 January 2008 and Department of Foreign Affairs and Trade, DFAT Country Information Report: Ethiopia, 28 September 2017 at [3.34]

I noted that the claimed warning hadn’t been mentioned before in submissions. He said that no one had asked that question before. I put to him that I thought it would be important to put in a statutory declaration, to which he responded that he was sick and was on medication and just answered questions that lawyers asked him.
In a statutory declaration[4] by the applicant’s mother, the issue of accessing a building permit was raised. I asked the applicant’s father to explain the situation. He said that it was before his arrest in 2005. They wanted to apply for a permit to put up a fence around the house and so they went to apply at the local administration and were told verbally that there wasn’t a problem, but the chairperson was not there, and once he returned, the document would be signed. After he was taken to prison, his wife went back to talk to the local administration to pursue the document and she was told that her husband is suspected to be a member of the OLF and as such they wouldn’t get the permit to build a fence. I asked him to explain how the local kebele didn’t allow him a permit to build a fence but after his release, he was promoted by the Ministry [to] a senior [Occupation 1] position and he was granted a business permit. He responded by suggesting that the ruling party allowed him to return to work because they may have identified a shortage of [people in his occupation]. At another part of the hearing he said that he was helped to get a licence by an Oromo friend. I put to him that from what I read, it would be very unlikely that someone who is suspected of being a member of a terrorist group would be promoted by the government and allowed to open a business. He responded that he was suspected of being a member of the OLF but it had not been established and he was not convicted.
[4] Tribunal File 1703914 folio 110b at [12]
According to the applicant’s father, his wife had [specified siblings], all of whom were living in Addis Ababa and one of whom was married, while the rest were living with their mother. They are now unsure of the whereabouts of them as they have not been in touch.
The applicant’s father claims that one of his brothers was the victim of a targeted killing. A death certificate was submitted for the applicant’s uncle, [the] brother of his father. The certificate notes that he was killed [in] August 2016 ‘due to multiple injuries caused by bullets on his head and chest’. According to the applicant’s father [the uncle] was involved in a demonstration against the government’s attempts to grab land when he was shot and killed by a sniper. The applicant’s father claims that he was targeted because he is Oromo and because the killer knew that [the applicant’s uncle] was his brother. He is not aware of any media coverage nor is he sure how many participated in the protests. He told the Tribunal that he learned of the circumstances of his brother’s death through his [second brother], who lives in [Country 1]. I note that the death certificate does not show in what circumstances the man died other than the means by which he died.
I put to the applicant’s father, under s.424AA of the Act, information that would be a reason or part of a reason to affirm the matter. I noted that at the first hearing he said that [Mr E] had contacts in the government and that he had facilitated the applicant’s father’s departure, but he had not mentioned any role that his brother played. Similarly, when he had first applied to the Department he did not mention that his brother was [an employee] with the Ethiopian government. Specifically I read from the previously constituted Tribunal’s decision relating to the parents’ protection visa applications in which their appeal was considered. I read the following extract from the decision record:
When questions were put to you and your husband during the interview with the delegate regarding your relationships with [the] [applicant’s father’s brother] and [the] [applicant’s mother’s sister], both you and your husband maintained that you were not related to these people and you had no knowledge of them.[5]
I also noted at the hearing that the applicant’s father hadn’t mentioned that his wife’s sister was married to his brother. I explained that the information is relevant to the review as it goes to questions of credibility. The applicant’s father responded that the situation is not different to what he had presented already. Through the help of [Mr E] he got an Australian visa. He didn’t know that [Mr E] had contacted his brother for help. When he applied for the protection visa in Australia he had concerns over the confidentiality of information, so he chose to keep those facts about his brother private because he wanted to protect him just in case the information became known to the Ethiopian authorities. He emphasised that he didn’t intentionally give false information. Through earlier engagement with the Department, the applicant’s father provided a statutory declaration dated 22 July 2011, which was provided to the Tribunal by the applicant, in which the father explained that the reason he had initially not told the Department that his brother worked in [a public agency] was to protect his brother’s security.[6]
[5] DIBP File [number] folio 33b
[6] Tribunal File folio 91
I read the following country information to the applicant’s father, ‘relatives of members of CUD [Kinijit] are treated as “enemy” of the government of Ethiopia’ and were still ‘subjected to treatment such as job discrimination … refusal of business licence applications or loss of existing business licences’.[7] I note that the most recent DFAT report similarly notes that ‘family members and neighbours of members and supporters (or perceived supporters) of opposition groups may be monitored, harassed, arrested and detained by authorities’.[8] I put to the applicant’s father that his brother, despite being related to his uncle who he had claimed to have been arrested as a member of OLF, continued to hold his government position. Furthermore, the applicant’s father continued to be employed in [Organisation 1] and was given a business licence despite having spent time in prison for associations with the OLF. I explained that he is on the one hand trying to tell the Tribunal that he is in danger because of his activities and his family’s activities with the OLF and on the other hand his brother is a senior official in the government, he had a business licence and he was employed by a government [Organisation 1]. As a result this leads into question his claims of any association with the OLF. He responded that the EPRDF does whatever they like. For a period he was a professional, then he was arrested and when he was released he was put back into his previous role. They can do whatever they like, he said. He also said that his brother had a senior position by name, but all that he did was [unimportant duties]. He emphasised that if you are not a member of the Tigrayan People’s Liberation Front (a constituent party of the ruling EPRDF) you have a position but no authority.
[7] Canadian Immigration and Refugee Board, Ethiopia: Treatment of relatives of members of opposition parties, especially the Coalition for Unity and Democracy (CUD) (2006 - 2007), 4 January 2008, Department of Foreign Affairs and Trade, DFAT Country Information Report: Ethiopia, 28 September 2017 at [3.34]
The applicant also submitted documents from his father’s application to the Tribunal and his father’s representative’s submission from 2012. I have taken into account evidence arising from these submissions including the father’s explanation that [the applicant’s uncle] had avowed his membership of and sympathy towards the ruling EPRDF.
The Tribunal asked the applicant’s father whether he communicated with any relatives in Ethiopia, to which he responded no and that he didn’t have anyone’s number. If he needs any information he contacts his brother in [Country 1]. I asked if I could review communications on his mobile phone. The applicant’s father responded that the Tribunal could. The representative did not have any objections. The applicant’s father’s communication apps were reviewed to see whether any communication was occurring with his brothers. On WhatsApp the Tribunal identified a number that was being repeatedly called and asked the applicant’s father about it. The conversation was as follows:
Applicant’s father: He’s maybe someone from [an organisation] I don’t know.
Tribunal: But you’ve tried many times.
Applicant’s father: Yes I tried but I can’t contact him.
Tribunal: Who is this person?
Applicant’s father: Maybe an old friend from [Organisation 1], I don’t know.
Tribunal: What do you mean you don’t know, you’ve made the calls.
…
Tribunal: This number, you are calling many times but you don’t know who it is.
Applicant’s father: Yeah, he too tried many times but haven’t been able to contact him.
Tribunal: I’m trying to understand why you are trying to contact a number who you don’t know.
Applicant’s father: I see he is trying to contact me and so I’m trying to contact him. Maybe he is [my second brother]’s friend; how he got my number I don’t know.
Tribunal: It says that you spoke to this person for 53 mins last month [[in] November 2017].
Applicant’s father: I never talked to him. No. Maybe it’s the voice mail kept going. Maybe my children tried.
Tribunal: It says that you had a conversation with someone for 53 minutes but you don’t know who it is?
Applicant’s father: I don’t know who it is. It takes a long time to connect maybe that is why.
The Tribunal called the phone number at 6:00 am Ethiopian time. Guidance was given to the interpreter as to what would be said if the phone owner responded. The applicant’s father was apprised of the approach and gave permission. The representative did not object. The phone was answered. The Tribunal requested that the interpreter ask what their relationship was with the applicant’s father. The answer was that he knew the applicant’s father and that he was his brother. The applicant’s father disputed that the term brother was used, but when asked again the man on the other side of the phone said family. The applicant’s father then responded that he is a family friend. At that stage the phone line was cut. I asked the applicant’s father why he hadn’t told the Tribunal who he had been speaking with. He responded that the lines were bad and that they had attempted to contact each other, but they never connected because of network problems. But now his understanding is that the person we spoke to was the family of the granddaughter of his uncle and her husband. I asked again about the 53 minutes that he had spoken with someone to which he responded that he didn’t talk to them. Regarding the term ‘brother’, the applicant’s father argued that it can be used in other contexts such as to people you are close, but he persisted that the term brother was not used. The interpreter confirmed that the term ‘brother’ was said.
The applicant presented information regarding his uncle, the applicant’s father’s brother, who fled Ethiopia for [Country 1] and was granted refugee status. A document was provided with the title, ‘[regarding] Refugee Status in [Country 1]’. While I accept that the document is legitimate, I give this document very limited weight for the reason that it does not mention upon what basis it was granted. The applicant’s father in his application in 2012 as noted in the submission by the applicant, stated that he knew that the reasons for his brother’s application and granting of refugee status, garnered through brief conversations, were those of persecution suffered on account of his suspected association with the OLF. Due to credibility issues of the applicant’s father discussed further below, I do not give this evidence any weight. As such, even accepting the veracity of the document, I find that the reasons stated by the applicant’s father for the uncle’s refugee status may be different than those claimed by the applicant’s uncle. I find that whether the applicant’s uncle has refugee status or not in [Country 1] is not relevant to the question at hand, which is whether the applicant faces a real chance of serious harm or a real risk of significant harm. I have also considered whether the uncle having refugee status in [Country 1] would somehow impute a political opinion on the applicant and find that there is no basis for this.
The applicant’s father claimed that his wife’s mother was imprisoned for months and died in prison. He said that the reason she was imprisoned was that they were seeking her daughter.
Credibility
I have considered the evidence provided by the applicant’s father as a whole and find that the number of revisions and omissions is such that the applicant’s father’s credibility is in question.
The applicant’s father misled the Australian government by omitting his brother’s position in the [civil] services of Ethiopia. This is not a minor omission considering that country information in Ethiopia suggests that the family of people associated with opposition groups and in particular illegal groups are penalised through discrimination in employment, refusal of business licence applications or loss of existing business licences. That the applicant’s father’s brother was a member of the [civil service], despite the uncle being imprisoned for being a member of a designated terrorist group, and the applicant’s father himself claiming to have been jailed for six months on suspicion of being involved, yet being released and then promoted to a senior [Occupation 1] and given a business licence, represents a series of circumstances in contradiction to country information that is of serious concern. I note the father’s response that the EPRDF can do whatever it likes and that his brother isn’t senior but these responses are contrary to country information put to him and do not allay my concerns.
The applicant’s father claimed that he did not communicate with any family in Ethiopia. When a phone call lasting 53 minutes was identified he claimed that he didn’t know who the other person was. When the Tribunal made the call to that number it became evident that they were family, though the applicant’s father explained it as distant family. His initial denial of communication and subsequent evidence of recent and substantial communication is troubling. His evasiveness is of concern.
The applicant’s father claimed that he would meet secretly with [Mr D] and [Mr E] and the former would take minutes of the meetings which he would subsequently carry home and store. These were apparently found by the authorities and the applicant’s father being mentioned in the minutes triggered the circumstances that led to him fleeing Ethiopia. I find it improbable that members of a designated terrorist group in a country that has a highly capable domestic intelligence system[9] would record meeting minutes and then carry them home for filing. On its own this may be improbable, though not sufficient to invalidate the applicant’s response, but combined with other concerns about credibility this improbable claim further adds to a series of serious concerns.
[9] Department of Foreign Affairs and Trade, DFAT Country Information Report: Ethiopia, 28 September 2017 at [5.9]
The applicant’s father claimed that he was banned from travelling abroad following his trip to [Country 2] but had not mentioned this previously. I find this to be problematic, considering the applicant’s father has been engaged with the Australian immigration process since 2010, including through numerous applications and appeals for himself, his wife and his first born son. As such he would understand the process and what is relevant information. I had regard to the delegate’s decision record, which was provided to the Tribunal by the applicant, in which the delegate summarised the claims of the applicant’s father and mother in their previous applications. In response, the reason he gave was that no one had asked him and that he was sick and on medication. Had he only one interview I would give some weight to his response, but considering that he has been engaged with the protection application process since 2010, including through applications and appeals for himself and his wife, a separate application for his first son and then a further application in the current case I do not accept that he could believe that it wasn’t important or that he was sick at every stage throughout this process. For this reason I do not accept that the applicant’s father was warned not to travel abroad or that he was banned from travelling abroad. That he made such claims further adds to my concerns over his credibility.
The death certificate of the applicant’s uncle shows a person who was killed by bullets to the head and chest. The suspicion of the applicant’s father that it was a targeted assassination and that they knew he was the brother of the applicant’s father is unsubstantiated and I find to be unlikely. Questions abound, such as why would the government use a sniper to shoot into a protest with the intent of killing someone when they could simply detain them and then kill them in a more discreet manner? The applicant’s father claimed that his death triggered a lot of violence, but he is not aware of any reporting of the event. His source for this information was his brother in [Country 1]. This claim raises doubts that are of concern though not in of themselves sufficient to undermine the claim, but when considered together with other inconsistencies and doubts, adds to the overall question of the applicant’s credibility.
In considering the evidence presented as a whole, in particular the repeated and independently verified contradictions, I find the applicant’s father to wholly lack credibility as a witness. As such I accept material which is not contradicted by country information or blighted by inconsistency or evasiveness.
I accept that:
·The applicant’s father was a volunteer for Kinijit during the May 2005 elections
·The applicant’s father did not participate in the protests following the disputed 2005 elections
·The applicant’s father was the owner of a [business] and that his wife worked with him
·The applicant’s father and mother travelled together to Australia with the help of his brother who was in the Ethiopian [civil service]
I do not accept that:
·The applicant’s father was imprisoned for six months in December 2005
·The applicant’s uncle was an OLF member or that he was jailed for being an OLF member
·The applicant’s father joined the OLF and raised funds for it
·An uncle was assassinated for the reason of being related to the applicant’s father or for having a leadership profile
·The mother received a written warning banning her from travel
·The father and mother were denied a permit to build a fence
·The applicant’s grandmother on his mother’s side was imprisoned for months and died in prison because the authorities were looking for her daughter.
As regards the applicant’s father’s claims that he met [Mr D] while in prison, I do not accept any element of the applicant’s father’s claims relating to [Mr D] being arrested and the subsequent efforts he claimed to have gone through in departing Ethiopia including going into hiding.
Sur place considerations
The applicant’s father claims to have been involved in the Ethiopian community in Australia. A letter of support was provided, which states that he has been involved in providing help in ‘organising cultural events, actively participating in organising demonstrations against the brutal killings of innocent people’.[10] When asked about his activities he claimed that he participated in an August 2016 major protest as well as three to four other protests. He couldn’t recall the first time that he participated in a protest. When I asked how many people attended these protests he responded hundreds but not into the thousands. He fears return to Ethiopia because he claims that most of the people in [his current city] are from the EPRDF and they are spies who record everything. This is supported by a Human Rights Watch report of such action having occurred previously.[11] I put to him that if it’s so dangerous why he didn’t raise it in the numerous applications he has submitted to date and extensive engagement with the Department. He responded that maybe he didn’t focus on that. His representative added that he didn’t know that events in Australia could contribute to the process.
[10] Tribunal file 1703914 folio 57
[11] Human Rights Watch, ‘Australia: Protests Prompt Ethiopia Reprisals’, November 7 2016 available at an1/07/australia-protests-prompt-ethiopia-reprisals accessed on 9 March 2018

I called the [office bearer] of [a named community group] to confirm his letter of reference and ask for further information. During the call he explained that he had known the applicant’s father since approximately August 2016. The applicant’s father contributed collectively to organising a demonstration in approximately May 2017 against the [activities of the] Ethiopian [government]. Approximately 150–200 attended this protest. In addition to this political activity he noted that the applicant’s father participated in cultural activities. I accept these assertions as fact.
Other supporting material was submitted, verifying his participation in political protests through a submission dated 22 February 2018 which included letters from [three named persons].
Having found that the applicant’s father was not active politically in Ethiopia, and after arriving to Australia did not participate in political activities until 2016 or 2017, I find that the actions of the applicant’s father are contrived for the purpose of furthering his refugee claims, but I do not engage with s.91R(3) for the reason that the applicant’s father is not an applicant. Nevertheless, I do find that the applicant’s father would not pursue political activism if he were to return to Ethiopia as his only activities in Australia were contrived for the purpose of furthering his refugee application.
As such the actions of the applicant’s father while in Australia are to be considered as they would impact upon the applicant. A DFAT report suggests, ‘The Ethiopian authorities have significant intelligence-gathering capabilities and are likely to be aware of significant protest activity undertaken in other countries and online’.[12] It is questionable whether the applicant’s activities would amount to ‘significant protest activity’, but considering the severe consequences in Ethiopia I accept that he would appear on the government’s radar. As such, I find that the applicant’s father will be arrested and detained upon return because of his sur place actions.
[12] Department of Foreign Affairs and Trade, DFAT Country Information Report: Ethiopia, 28 September 2017 at [5.21]
It is necessary, though highly speculative, to estimate a time frame of his detention for the purpose of assessing the impact upon the applicant. A few days would have a very different impact than a few years. Country information is varied on this matter, ranging from a high end example, such as the above referenced Human Rights Watch report on relatives of protestors being arrested and detained for several months and possibly longer, to a report from the Canadian government suggesting that there are, ‘[v]arying opinions on how high a profile you need to be in order to be monitored in this way. High profile individuals definitely are, but sometimes individuals who wouldn't seem to be of much interest are also monitored’.[13] This suggests an ad hoc approach on the part of the government, which aligns with wider country information reviewed for this decision including the following:
[I]t is very difficult to give reliable information about what will happen with Ethiopians in exile who may be returned to Ethiopia by force and who are critical to the Ethiopian regime. Landinfo has experienced that the sources are vague and cautious in its [sic] statements about what may happen when Ethiopians are returned. The sources we have met differ on what may happen. Landinfo's assessment is that those who will be under the Ethiopian authorities' suspicion are, first and foremost, people they apprehend as a threat and who may mobilize and are prepared to use military force for change.[14]
I do not accept that the applicant’s father would be perceived to be a threat or someone who would be perceived to have the potential to mobilise and use force against the government. In balancing these reports, for the purposes of this decision, I find that the worst case situation is for the applicant’s father to be detained and therefore absent from the applicant’s life for a period of 12 months.
[13] Canada: Immigration and Refugee Board of Canada, Ethiopia: Information on the ability of the Ethiopian government to monitor and censor Ethiopian dissidents living in Canada, including scope and type of surveillance, and technology used; treatment of returning dissidents from Canada, including whether particular profiles face greater risks upon return (2014-January 2017), 2 February 2017, ETH105729.E, available at: [accessed 13 March 2018]
[14] Norwegian Country of Origin Information Centre quoted and translated in Canada: Immigration and Refugee Board of Canada, Ethiopia: Information on the ability of the Ethiopian government to monitor and censor Ethiopian dissidents living in Canada, including scope and type of surveillance, and technology used; treatment of returning dissidents from Canada, including whether particular profiles face greater risks upon return (2014-January 2017), 2 February 2017, ETH105729.E, available at: [accessed 13 March 2018]
I accept that the applicant’s father will subsequently be monitored as a result of his sur place activities, though, based upon a finding that he would not participate in Ethiopian politics I do not accept that such monitoring would lead to further harm to the father such that it would impact the applicant.
Applicant’s mother
The applicant’s mother did not provide evidence at any of the hearings. Instead, the Tribunal refers to material submitted by the representative including statutory declarations, legal submissions and a previous tribunal decision record.
In a statutory declaration, the applicant’s mother stated that she had never been politically involved and did not vote in the 2005 election. I accept that the mother was not politically involved then nor would she be in the future were she to return to Ethiopia.
The mother claims to have had the authorities interrogate her, seeking information about her husband in 2005/06. As I did not accept that the applicant’s father had been arrested and imprisoned for six months, I do not accept the mother is known to the authorities.
The mother claims that she was harassed, slapped and threatened by the authorities when her husband went into hiding in June 2010. I did not accept that her husband went into hiding; as such, I do not accept that she encountered such harm.
The mother had claimed that she would suffer harm as a result of being married to someone who was a member of Kinijit. I accept that the applicant’s father was involved in Kinijit and as such the applicant’s mother would be a wife of someone involved in Kinijit. I will consider how this may impact the applicant further below.
Considerations for the applicant
I put to the applicant’s father the question, if he was imprisoned why his son couldn’t live with his mother without facing serious or significant harm. His response was that the applicant faces harm not only for political reasons but also for economic, social and psychological reasons. He said that without him, his wife cannot raise their children.
Claims arising from political issues
The applicant’s father said that it is possible that the authorities will put them all in prison, including the applicant. The applicant’s mother’s claim was that she would be harmed for being married to someone who was a member of Kinijit. The applicant provided country information in a submission dated 12 April referencing an Amnesty International report, Ethiopia: ‘Because I am Oromo’: Sweeping repression in the Oromia region of Ethiopia.[15] I note that the previous DFAT country report mentions Because I am Oromo:
3.10 A number of international human rights organisations have reported publicly on what they describe as the ‘repression’ of Oromos in Ethiopia. This includes organisations such as Amnesty International, which DFAT generally considers a credible source for the purposes of country information. However, in consultations for the preparation of this report, interlocutors raised issues around the accuracy of reports such as Amnesty’s Because I am Oromo: Sweeping repression in the Oromia region of Ethiopia. The concerns around these reports included methodological concerns, with a number of international human rights organisations (including Amnesty International and Human Rights Watch) being unable to travel into Ethiopia to collect information; instead, information is often obtained from the Ethiopian diaspora, particularly refugees in other countries.[16]
[15] Amnesty International, Ethiopia: ‘Because I am Oromo’: Sweeping repression in the Oromia region of Ethiopia, 28 October 2014, p.52-53 available at accessed on 13 April 2018.
[16] Department of Foreign Affairs and Trade, Country Information Report: Ethiopia, 1 April 2016
While I accept that Amnesty International may have identified several cases of multiple members of the same family being arrested, I note the methodological problems inherent to its reporting and give it little weight and as such find there is a remote chance that the applicant and his mother would be incarcerated. (The other reference is an Asylum Research Consultancy report which references the Amnesty Report for the quote that the representative has referenced.)
Other sources of information were provided, including a report by the Special Rapporteur on Prisons to Ethiopia. It spoke of situations in which the mother was incarcerated in the context of the mother committing the crime (as a common sense reading of the text would surmise). I have not found evidence to suggest that being a wife of a member of Kinijit is a crime of its own standing. Considering that the mother has not committed a crime, this report does not add weight to the claim that the family would be incarcerated.
For the reasons given above, I find that there would be a remote chance that the applicant would be detained along with his mother because of his father. For this reason I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for the reason of his father’s political opinions.
The applicant’s father claimed that he was pressured to join a political party while he was working for the government and that when he refused he went for a period without being paid. Despite having found the applicant’s father lacking credibility, based upon available country information, this claim is plausible. In considering what may happen I first must turn my mind to consider whether the applicant’s father will be able to secure a job with the government in the reasonably foreseeable future. As I have found that the applicant’s father will be convicted and will spend up to 12 months in prison I find it highly unlikely that he will be employed within the government sector again. Based upon his previous entrepreneurial endeavours and his education, I find that the applicant’s father can find work within the private sector in a position that would not attract the interest of the authorities. For this reason, I do not accept that he will face any significant pressure to join the ruling political party and as such find that the applicant will not face a real chance of serious harm or a real risk of significant harm for the reason of the applicant’s father rebuffing pressure to join a political party and in turn causing harm to the applicant.
Claims arising from his education
I have also considered the possibility of corporal punishment at school and whether it constitutes cruel and inhuman treatment. I put to the applicant’s father that country information states corporal punishment is prohibited in schools:
Corporal punishment is explicitly prohibited in schools in article 36 of the Constitution 1995, which states: “(1) Every child has the right … (e) to be free of corporal punishment or cruel and inhumane treatment in schools and other institutions responsible for the care of children.” Corporal punishment is not among permitted disciplinary measures in the school administration regulation issued by the Ministry of Education in 1998.
The applicant’s father agreed that it is banned but said that in practice it is occurring especially for Oromo children. He also said Oromo children face other discrimination. He gave the example that in the place where he was born, there was only one primary school and it would be very hard to get a place for his children because of being Oromo and his political background. He said that if you are from the Oromo ethnic group, students don’t get any chances through their schooling unless belonging to the ruling group. I asked how he and his wife got the education that they received. He responded that they learned what they had to learn with the help of their parents, in his case especially his mother.
By way of a letter, I put to the applicant the following information from DFAT: ‘Primary education (typically from seven years to fifteen years of age) is officially provided free of charge and is compulsory’[17] and asked that he provide evidence of claims that he will be discriminated against. The representative provided a submission[18] including references to various human rights reports describing the monitoring of teachers, killings of students and influence upon teaching. One directly spoke of Oromo students and their plight. The representative rightly pointed out that the material relates to high school and university level students. The argument put forward is that the applicant will be targeted for discrimination because of his father being viewed as being political, a situation he saw as being amplified because he is Oromo and because they fled Ethiopia seeking asylum.
[17] Department of Foreign Affairs and Trade, DFAT Country Information Report: Ethiopia, 28 September 2017 at [2.11]
[18] Tribunal File 1703914 folio 193
I find that the reasonably foreseeable future does not extend beyond the applicant’s primary education, as anything beyond is dependent upon too many variables, including possible changes to government and the child’s own interests and abilities to pursue further studies. For this reason I do not consider information regarding high school and university further. Primary education through to 15 years of age is provided free and is compulsory. No evidence was made available or found that would suggest that children were discriminated against such that it would amount to serious or significant harm while at primary school or in lower levels of education for reason of being Oromo or children of parents imputed with a political opinion or who were failed asylum seekers.
I find that taking into account the possible discrimination against Oromos and those who live with the possibility of inherited suspicion, and the applicant’s having being born in Australia and sought asylum, the applicant does not face a real chance of serious harm by way of corporal punishment in school or for the same reason a real risk of significant harm. I also find that the applicant will have full access to primary school education and as such does not face a real chance of serious harm or a real risk of significant harm through any form of discrimination during his education.
Claims arising from mother’s psychological problems
The applicant’s mother is on medication. The applicant’s mother has been assessed by psychologists. Concern was raised about her ability to function as a mother were they to return to Ethiopia. In the most recent assessment dated 2018 the report notes that ‘[the mother’s] current mental health appears to be primarily exacerbated by her family’s unresolved visa circumstances in Australia’.[19] The representative of the applicant sought clarification from the psychologist, who responded with the following:
In terms of [the applicant’s mother’s] psychological wellbeing and her prospects for recovery, the stressors associated with an unresolved visa status, are likely to continue to exert a negative impact on her mental health, and present a barrier to her recovery. A visa resolution that meant a return to Ethiopia is likely to result in further deterioration of her mental health.[20]
[19] Tribunal File 1703914 folio 142
[20] Tribunal File 1703914 folio 187
Another submission from [a health service] written by [Doctor C] a General Practitioner included:
I would be very concerned about the welfare of her children should she be sent back to Ethiopia. If her husband is arrested she will be a single mother with severe mental health problems and no access to the current psychological and medical support she has currently. She would be at very high risk of losing her ability to function as a mother.
There is the possibility that the mother would receive family support in Ethiopia just as she receives support from her husband in Australia. Alternatively it is possible that the applicant’s mother would lose her ability to function as a mother, not get any support and possibly commit suicide. The outcome of either is the applicant would be dependent upon the availability of relatives who could provide support (under the circumstance that she is somewhat incapacitated) or complete care (if she is fully incapacitated) of the applicant for a period of 12 months until his father is released from prison.
The applicant’s father has claimed that they have no one. I do not accept that. He emphasised that his wife doesn’t have family members to rely upon and her parents are deceased. He said that she doesn’t know where her sisters are living. I explained that the concept of family is broader than in western society and asked why her sisters wouldn’t support her. He responded that [a number] of her sisters are younger, and even so, they don’t know where they are or even if they are alive, and [another] sister is his brother’s wife and they are not happy with them. I asked why his wife wouldn’t get support from [that] sister. He responded that it is very hard to be in contact with his brother and wife. Then he explained that his brother helped him exit the country and if he returns back his brother’s career will be impacted so for that reason they wouldn’t help.
I find that the parents of the applicant do have relatives who could be in a position to care for the applicant, whether they be one of the [siblings] of the mother or the granddaughter of the uncle with whom the applicant’s father was in conversation, who could provide support to the mother or care for the child through that period.
The question, though, becomes one of whether those relatives would accept the responsibility. Country information compiled by the representative in their submission dated 23 May 2018 provides a compelling case that leaves sufficient uncertainty such that I cannot conclude that they would. There is considerable evidence that members of the EPRDF at all levels of government not only favour supporters but actively discriminate against those who are deemed to be in opposition.
An example in a Human Rights Watch report alludes to this:
There are children who are malnourished who are not getting assistance in my kebele for political reasons. They are starving to death, they are so sick. There are many.[21]
While there are obvious methodological issues when relying upon single incident reports in a country as large and disparate as Ethiopia, the Amnesty report notes:
While small, the sample is significant because it provides first-hand accounts of the partisan allocation of food aid, a problem that has been anecdotally reported in many areas and over many years in Ethiopia, especially in recent years in Somali region. Most interviewees who complained of politicization of food aid were opposition party supporters.[22]
[21] Human Rights Watch, Development without Freedom: How Aid Underwrites Repression in Ethiopia, 19 October 2010, ISBN: 1-56432-697-7, available at: [accessed 7 June 2018] p.44
[22] Human Rights Watch, Development without Freedom: How Aid Underwrites Repression in Ethiopia, 19 October 2010, ISBN: 1-56432-697-7 p.45

The same Amnesty report describes the politicisation of other government services including access to the productive safety net program and education. Other reports referenced in the comprehensive submission by the representative included a 2009 International Crisis Group report which stated:
Neighbourhood-level “cadres” report minor occurrences to kebelle officials, including residents’ whereabouts and visitors. According to many, “their main task is to monitor the people, spy on people and report to the kebelle…Barely visible to outsiders and foreigners, this party control discourages dissent and constantly reminds people who is in charge. It allows the EPRDF to keep a tight grip on opposition supporters and rewards its own.’
With reporting from numerous sources including those quoted above, along with Freedom House, Human Rights Watch, The Guardian and academic researchers, as referenced in the representative’s submission, painting a picture of a country in which the government at all levels intimidates and persecutes those imputed with political opinions associated with the opposition, there is doubt in my mind that the relatives would be willing to risk their families’ future to take on the caring responsibility of the applicant whose father is in prison for agitating against the regime.
In reaching a conclusion on whether the applicant faces a real chance of serious harm I note that s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In summary, the applicant will be without a father and with an incapacitated mother. I am deeply concerned by the father’s lack of credibility, combined with what I found to be an intentionally contrived political activism in Australia to further his refugee claims. Nevertheless, it is not the father who is the applicant, but rather a toddler. I find that the applicant, an infant unaware of his father’s actions, does face a real chance of serious harm for the reasons of political opinion, namely that due to the Ethiopian government’s political zeal no family members would be willing to take on the caring responsibility for the applicant.
Furthermore, I acknowledge the rapidly changing political situation in Ethiopia is very promising. Earlier this year thousands of political prisoners were released[23] and in June further moves were made to normalise relations with Eritrea[24]. But at the same time the political landscape is tenuous with two prime ministers holding the position this year alone. In reflecting on these changes I have considered the concept of ‘reasonably foreseeable future’ as expressed by Mortimer J in CPE15 v MIBP [2017] FCA 591 at [60]:
The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision.
[23] Ethiopia releases high profile political prisoners, DW, 14 February 2018 accessed on 8 June 2018
[24] Ethiopia offers Eritrea chance to end Africa's longest war, BBC, 7 June 2018 accessed on 8 June 2018
With such a rapidly changing political landscape it is difficult for the Tribunal to base a decision on probative material when so little is known and so many changes are occurring. It is possible that the political situation regresses. It is possible that the changes are cosmetic to the larger security apparatus and how it operates. It is possible that the country will reduce its heavy handedness. As such while acknowledging these changing circumstances I find that they cannot provide a basis upon which to ground a decision which projects into the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Denis Dragovic
Senior 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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2018] AATA 3088

8 June 2018

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