1703995 (Refugee)

[2021] AATA 176

1703995 (Refugee) [2021] AATA 176 (4 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1703995

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Sean Baker

DATE:4 January 2021

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 4 January 2021 at 4:36pm

CATCHWORDS

REFUGEE – protection visa – Ethiopia – political opinion – Unity for Democracy and Justice (UDJ) – Coalition for Unity and Democracy (CUD) – opposition to the regime in Ethiopia – opposed to the politicisation of ethnicity and religion – adverse interest to the authorities – past detention – 2005 political election – race – Tigrayan ethnicity – membership of family – arrests of family members – father died in detention – decision under review remitted

LEGISLATION

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

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Ethiopia, applied for the visa on 3 October 2014 and the delegate refused to grant the visa on 14 February 2017.

3. The applicant appeared before the Tribunal on 8 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from a friend of the applicant, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages. The applicant was represented in relation to the review by his registered migration agent.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

6. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).

8. 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.

9. The issue in this case is whether the applicant holds a well-founded fear of being returned to Ethiopia or, if not, whether there is a real risk the applicant will suffer significant harm if returned to Ethiopia .For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Claims

10. In his written application to the department, the applicant claims that he came to Australia to study. He said he had been harmed in Ethiopia, he was imprisoned and mistreated during the 2005 political election because of his political opinion and being a party member of the opposition political party known as UDJ. He fears if he returns he will be detained. He fears the government officials of the ruling party. He believes he will be harmed because he is a member of the UDJ and because he was in Ethiopia for two weeks holiday and had political meetings with his party. When he got back to Australia without knowledge of the ruling party, a letter from the federal police was sent to his parents, ordering him to report to the federal police, such warrant letters lead to indefinite detention.

11. He attached copies of his passport and birth certificate. He also provided several documents including:

    ·     A letter from police dated [in] February 2014 which states he has been given summons to appear in court on several occasions, and orders he be detained;

    ·     A UDJ party support receipt dated January 2014;

    ·     A UDJ party membership card;

    ·     A letter from the UDJ which states that the applicant is a member, participates in political activism, that there have been members beaten, there is persecution against their members and asks that he be given cooperation. The date is inserted as [a date in 2014] despite the letter being written in Amharic.

12. The applicant provided a more detailed statement in January 2015 in which he said:

    ·     He started supporting CUD around 2005 during the elections. He helped to organise meetings and events, distributed brochures, recruited party members and helped with whatever needed to be done.

    ·     After the election the CUD called for riots, demonstrations and boycotts. He joined many demonstrations. He was arrested and beaten by police, put in a truck and taken to [Prison 1] where he was kept for a month and bashed many times.

    ·     He joined UDJ in 2008, which was formed from CUD. He was actively supporting the party as he had the CUD.

    ·     He was unable to get fair treatment from the government especially regarding jobs and further education opportunities as he was not part of the ruling party.

    ·     In 2012 he [obtained a course enrolment] and came to Australia

    ·     He returned to Ethiopia in January 2014 and attended political meetings with his party. He then returned to Australia.

    ·     In February 2014 a warrant letter was sent to his parents. His parents were interrogated and threatened. A week after receiving the letter his father was detained for [number] days. The police were interrogating his father about the applicant’s whereabouts.

    ·     He fears being detained, persecuted and possibly killed. He fears the authorities and mainly EPRDF members

    ·     He was interviewed on 15 November 2016. The delegate had concerns but accepted he may have attended protests in 2005. The delegate found that his activities after this time however of talking to friends about the UDJ would have brought the applicant to the attention of the authorities. The applicant said he had spoken with people when he returned to Ethiopia, said he had not been political y active in Australia, the delegate found the applicant attended protests in relation to the 2005 election and was involved in discussions with friends about the elections in Ethiopia and UDJ party. The delegate found the applicant was able to depart the country and return for two weeks and was not of concern to the authorities. Did not accept father died while being interrogated. The delegate found the applicant would not be harmed given his low political profile.

13. In a post interview submission, it is claimed that his residing outside Ethiopia may have led the authorities to be suspicious and issue the warrant. The submission also attached country information from 2015 and 2016.

14. A further submission of 1 December 2016 in which it is said that the applicant instructs that on [a day in] November 2016 his father was called to attend the police station to provide information on the applicant, they took his father away and 24 hours later they were told his father died while in custody. The applicant stated that they were only informed of this after the interview. A Death Certificate of his father, registered [in] December 2016 was also provided.

15. To the tribunal the applicant provided a copy of the delegate’s decision.

16. Prior to the hearing he provided a statutory declaration in which he said:

    ·     He had been a member of the CUD, he was detained and tortured for a month and had to sign a letter saying he understood they were a terrorist organisation and was then released;

    ·     This is why he did not have any CUD documentation;

    ·     The applicant was a member of the UDJ, he did speak with people about the UDJ when he returned to Ethiopia;

    ·     During his trip he kept a low profile. But the summons was issued, and his father was detained, twice, in 2014 and then in 2016;

    ·     After 2014 the authorities continued to arrest and harass his father. They harassed his father and his brothers to put pressure on the applicant;

    ·     His father was arrested in 2016 and died in custody., they do not know how he died. His family did not tell him immediately about his father’s death;

    ·     In late 2016 or early 2017 the authorities questioned his brother [Brother B] about the applicant;

    ·     His brother is outspoken. In 2016 and 2019 they detained his brother;

    ·     [In] February 2020 [Brother B] and [Relative C] went to [a protest];

    ·     [Relative C] was shot in the leg, [Brother B] was detained by the authorities and the family have not heard from him or been told his whereabouts since then;

    ·     He fears harm as a member of the Tigray people as mixed ethnicity and because he will be identified as Tigrayan from his facial features, and name;

17. After the hearing a further submission was provided.

    Consideration of political opinion claims

18. At hearing the applicant provided compelling evidence of his political engagement and involvement with the CUD in 2005. He gave credible evidence of how he became involved, the protests he attended, his detention and the mistreatment he received in detention and then when he was imprisoned in [Prison 1]. He explained that he had been required to sign a document when he was released from the prison and because of that and the action taken by authorities towards the leaders of the CUD there was little scope to be involved after that as there was no platform.

19. The applicant went on to explain how he then became involved in the UDJP and helped the party recruit so that the party could be registered. The applicant said that during this time things were very difficult. The government was claiming that people could belong to whichever party they chose, but people were being followed and harassed and there was a network of informants against them. The government also bribed the youth. He said that in the lead up to and during the 2010 elections he was active but was trying very hard to do so discreetly as he did not want to be in the situation where he had to go back to prison and be tortured again. He had all that trauma inside his head and because of that he was very careful with what he was doing.

20. When he came to Australia he was not involved with any political parties or activities because he was afraid that if he did so the authorities would harm his family in Ethiopia. He said that this is a common tactic of the Ethiopian authorities.

21. I questioned him about his return to Ethiopia. He said he had engaged in political activities during this time as he had seen the peaceful transfer of power in Australia after the 2013 election and he wanted to share this with people in Ethiopia. He went there and passed that message to friends in his area. The applicant said that he had moved around while he was there because he believed he was not safe.

22. I found the applicant’s evidence about his political activities in Ethiopia, his detention and the aftermath to be credible and consistent with earlier testimony and with country information. As did the delegate, I accept that the applicant was detained in 2005 where he was beaten and suffered other serious harm on the basis of his actual or imputed political opinion. I also accept that this led him to display his political opinion more subtly, but it did not diminish his inherent wish to express that opinion. His explanation of seeing the peaceful transfer of power in Australia and his desire to speak about this in Ethiopia I found compelling.

23. The applicant has presented a UDJ party membership card dated 2008. He has also provided a UDJ party support receipt from January 2014. He provided a letter said to be from the UDJ party stating that the applicant participates in political activism, that they had had members beaten and persecuted and the letter asked for cooperation. The letter caused me some concern because, despite being written in Amharic, it contained a date that could only have been the Gregorian calendar (if Ethiopian calendar it would have been dated later in 2021). However, on the basis of my general credibility findings below, and having regard to the explanations provided at hearing and in the post hearing submission, I accept that this was an error on the part of the writer of the letter and that it is dated November 2014.

24. These documents lend support to his claims to have been a member of the UDJ party. He has provided copies and translations and given my credibility findings above I accept that these documents are genuine and support his membership of the UDJ.

25. I have carefully considered the letter from police dated [in] February 2014 which states that the applicant has been given summons to appear in court on several occasions, it orders he be detained. I noted my concern that most of the letter was typed but that his name, the date and a reference number were handwritten. However, on careful reflection I accept the evidence of the applicant that the information in the letter is not particularised to him and that this is more a general document seeking supporters and members of the UDJ. I accept the argument in the post hearing submission that:

    We submit that this supports our submission that this is a genuine pro-forma document issued to the Applicant and likely to other persons with a similar profile as the Applicant. There is therefore no anomaly that the Applicant’s name and the date is handwritten into the document, and that the remainder is typed. While the Tribunal highlighted the country information indicating that document fraud is not uncommon in Ethiopia, we submit that this in itself provides no logical basis for impugning the genuineness of this document in the absence of any other basis for questioning its legitimacy.

26. I accept, on the basis of his testimony and the document itself that after his visit to Ethiopia in early 2014, during which he spoke to some of his friends about the political situation in Australia and how it contrasted to that in Ethiopia, that the applicant came to the attention of the authorities who wished to question him and so issued this generalised letter of interest and instruction to detain and question him. Again, this is entirely consistent with the operations of the Ethiopian authorities and their treatment of low-level supporters and members of opposition parties at this time.

27. I accept the applicant’s evidence that he has not been involved in political activities in Australia. Whilst a claim from him that he was involved would have strengthened his case, I found his explanation for his lack of engagement compelling – having been detained and suffered in 2005, the habit of discretion and secrecy remained, and the applicant had some suspicions that his actions here may lead to harm or interest in his family. which it appears it did.

28. I accept that the applicant’s father was detained a number of times, in 2014 and again in 2016 after the applicant departed in 2014, and that his father was questioned about the applicant. Again, this is entirely consistent with country information about this period. I accept on his evidence and that of [Mr A], who I found to be credible and provided helpful information, that the applicant’s father died whilst detained.

29. I accept that the applicant holds genuine political views opposed to the regime in Ethiopia. I accept that he has held these views since at least 2005 and that the expression of these views has been curtailed after his detention and the harm he suffered there, but that his views remain. In the post hearing submission, it is argued that the applicant holds deep political views and is opposed to the politicisation of ethnicity and religion in Ethiopia and may express these views if returned to Ethiopia. I accept this. I also accept that the applicant has been of interest to the authorities, during and following his detention. I accept that his father was detained a number of times and questioned about his son. I accept that his father died whilst detained.

30. According to the UK Home Office fact finding mission of September 2019:

    On 2 April 2018 Dr Abiy Ahmed Ali became prime minister of the Federal Republic of Ethiopia. During his first few months as prime minister, he introduced a number of fundamental reforms which included: the de-proscription and return of exiled terrorist organisations – notably the Patriotic Ginbot 7 (PG7), the Oromo Liberation Front (OLF) and Ogaden National Liberation Front (ONLF) – and the pardoning and release of thousands of political prisoners. Reforms to the security sector were announced, including a commitment to end torture and the arbitrary use of the Anti-Terrorism Proclamation (ATP).

    The widening of the political space included revision of the media and civil society organisation laws, and the enacting of the electoral reform law to enable free and open national elections in 2020. Corruption and allegations of human rights abuse have been investigated, and some high-level officials have been replaced and prosecuted for past abuses. The process of holding those accountable and bringing them to justice is ongoing.

    Since the initial wave of reforms and actions of Dr Abiy, the country has entered a transition period and slow-down in the reform process. This has been met with impatience and criticism by some groups. In June 2019 there was an alleged attempted coup to which the government, taken by surprise, reacted swiftly and forcefully. The ATP was used to arrest and detain hundreds of individuals, including journalists and those associated with, and members of, a range of opposition groups. While some remain in detention, many have subsequently been released.[1]

    [1] UK Home Office, Report of a Home Office Fact-Finding Mission - Ethiopia: The political situation, Conducted 16 September 2019 to 20 September 2019, Published 10 February 2020,

1. According to Human Rights Watch in their World Report 2020:

   Human rights reforms implemented by Prime Minister Abiy Ahmed during his first year in office were threatened in 2019 by communal, including ethnic, conflict and breakdowns in law and order.

   The June 22 assassinations of several high-level government officials, which the government linked to an alleged coup attempt in the Amhara region—as well as political unrest and communal violence in the capital, Addis Ababa, and Oromia following an incident with a popular Oromo activist and media owner, Jawar Mohammed—highlighted increasing tensions ahead of Ethiopia’s scheduled 2020 national elections.

   In June, the parliament voted to postpone an already overdue but highly contentious national census, despite the importance of the exercise ahead of the 2020 elections.

   Institutional reforms, notably around judicial independence and concrete measures to ensure truth, reconciliation, and accountability—all of which are key to dealing with heightened political and ethnic tensions—were limited.[2]

   [2]  Human Rights Watch, World Report 2020 – Ethiopia, events of 2019, 14 January 2020,

2. The United States Department of State sets out that:

   Abiy’s assumption of office was followed by positive changes in the human rights climate. The government decriminalized political movements that had been accused of treason in the past, invited opposition leaders to return to the country and resume political activities, allowed peaceful rallies and demonstrations, enabled the formation and unfettered operation of new political parties and media outlets, continued steps to release thousands of political prisoners, and undertook revisions of repressive laws. On June 5, the parliament voted to lift the SOE [State of Emergency].[3]

   [3] USDOS – US Department of State: Country Report on Human Rights Practices 2018 - Ethiopia, 13 March 2019.

3. This information is consistent with other reputable sources[4] in indicating that Abiy made large scale changes such as releasing political prisoners, allowing those in exile to return without harm, de-proscribing armed groups and removing the State of Emergency. The country information indicates that this fast rate of reform has slowed somewhat in later 2019 and early 2020 but without any of these changes being wound back significantly.[5]

   [4] See ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation: Ethiopia: COI Compilation, November 2019, (accessed on 28 February 2020); UK Home Office, Country Policy and Information Note Ethiopia: Opposition to the government, UK Home Office, 15 July 2020,

   [5] See UK Home Office, Country Policy and Information Note Ethiopia: Opposition to the government, July 2020,

4. There is specific information that Opposition parties, including nationalist and Federalist parties, are able to operate in Ethiopia in a way they were unable to prior to Abiy coming to office, including the de-proscribing of many parties, their ability to operate without harassment from the authorities, and the preparations in 2019 for elections in the latter half of 2020.[6]

   [6] ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation: Ethiopia: COI Compilation, November 2019, (accessed on 28 February 2020).

5. DFAT also notes that ‘[t]here are fewer reports of arbitrary arrests and detentions since the change in federal government in April 2018 and the lifting of the State of Emergency.’[7]

   [7] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, 4.15.

6. Despite the positive developments following Abiy coming to power, ‘Authorities detained persons arbitrarily, including activists, journalists, and opposition party members. There were hundreds of reports of arbitrary arrest by security forces.’[8]

   [8] United States Department of State, 2019 Country Reports on Human Rights Practices: Ethiopia, Arrest Procedures and Treatment of Detainees.

7. The UK Home Office, in July 2020 published a report in which they stated:

   2.4.8 Historically, opposition party members and activists have been subject to arbitrary arrest and lengthy detention without charge, ill treatment, torture and extrajudicial killings. In July 2018 Prime Minister Abiy Ahmed admitted the use of torture and unlawful interrogation techniques on those detained under the previous regime, and by the end of 2018 over 60 high level government officials had been arrested on charges of torture and corruption. The process to bring those to justice is reportedly slow and not wholly effective however, there have been examples of cases being prosecuted for past abuses. Since April 2018 approximately 10,000 political prisoners have been released and/or granted pardons, including prominent politicians, journalists and human rights activists (see Political landscape, Arbitrary arrest and detention, Treatment of detainees/prison conditions).

   2.4.9 While some sources report hundreds of arrests for political reasons, particularly in Oromia, including low level supporters or sympathisers, they are usually held for a short time and then released, and the overall numbers of arrests have declined since April 2018. Additionally, while there are some reports of torture and ill-treatment of detainees and of harsh detention conditions which vary between settings, there is also evidence that torture is no longer routine or widespread (see Political landscape, Arbitrary arrest and detention, Treatment of detainees/prison conditions).[9]

   [9] UK Home Office, Country Policy and Information Note - Ethiopia: Opposition to the government, Version 4.0, July 2020, 2.4.8 – 2.4.9.

8. More recently, it appears that the war in Tigray, Covid-19 and the planned election for May or June 2021 may have changed the tolerance of authorities for dissent. After the announcement of the planned dates for the postponed election, several opposition parties complained that their leaders but also supporters were in jail and that they would find it difficult to take part in the election.[10] The recent arrest of a Reuters cameraman appears indicative of a crackdown on media and dissent since the beginning of the war in Tigray.[11]

   [10] BBC Africa, ‘Ethiopia poll plans continue despite opposition crackdown’, 22 December 2020, Ethiopia - BBC News

   [11] The New York Times, ‘Arrest of Cameraman in Ethiopia Signals Wider Crackdown’, 29 December 2020, Arrest of Cameraman in Ethiopia Signals Wider Crackdown - The New York Times (nytimes.com)

   Consideration of claims on the basis of membership of his family and ethnicity

9. The applicant claims that his brother [Brother B] was also questioned about the applicant, in late 2016 or early 2017. I accept this as plausible. I accept that [Brother B] and the applicant’ [Relative C] were present at the [specified] protest. Having seen the photos and the testimony of the applicant and his witness I accept that [Relative C] was shot in the leg. On the applicant’s testimony I accept that [Brother B] was detained by the authorities and the family have not heard from him or been told his whereabouts since.

10. The [protest] is referred to in [a recent cited] report:

    [Detailed redacted].[12]

    [12] [Source deleted]

11. [A news publication article] states:

    [Details redacted].[13]

    [13] [Source deleted]

12. Other articles are in accordance with the above but report greater numbers wounded and in one case report that [number] people were detained after a house to house search.[14] However, most reports refer to [fewer] people being detained but do not indicate who these people are.[15]

    [14] [Source deleted]

    [15] [Source deleted]

13. The incident was widely reported and led to significant criticism of the police response.

14. The applicant also claims to fear harm on the basis of his ethnicity. He claims that he is of mixed Tigrayan ethnicity and that his name is identifiable as a Tigrayan name.

15. I have had regard to country information. The DFAT report states that ‘[w]ith the exception of the ethnic Anuak people of Gambela State, most ethnic groups in Ethiopia are indistinguishable by their physical appearance, partly as a result of inter-marriage.’[16]

    [16] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.21, 20200812101229

16. The DFAT report also says:

    Different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a ‘non-factor’ in Addis Ababa — most people consider themselves from Addis Ababa as opposed to a particular ethnic group. Violence based on ethnicity is not common in Addis Ababa, but is a growing concern in regional states.[17]

    [17] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.21, 20200812101229

17. According to the DFAT report ‘[t]he largest concentration of Ethiopian Tigrayans outside of Tigray State at the time of the 2007 census was in Addis Ababa (nearly 170,000).’[18]

    [18] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.23, 20200812101229

18. The DFAT report goes on to say:

    There is a growing sense among Tigrayans that their community is under threat. Anti-Tigrayan sentiment has become more overt since 2018, and hate speech against ordinary Tigrayans has increased in this time.

    […]

    DFAT assesses that, excluding in Addis Ababa, ethnic Tigrayans face a moderate risk of violence in rural parts of the states where they constitute a minority. DFAT notes most Tigrayans reside in Tigray State, which is majority Tigrayan and where the central government wields less influence. DFAT assesses Tigrayans face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector.[19]

    [19] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.23, 20200812101229

19. A February 2019 journal article in the Journal of Ethnic and Migration Studies (JEMS), based in part on fieldwork conducted in Addis Ababa, states:

    During my stay in Ethiopia, it became clear to me that many people in Addis Ababa, and beyond, perceived Tigrayans as a distinct and privileged group. Many expressed these opinions in conversations that ranged from inquiries about conditions in Tigray to heated discussions about Tigrayan political dominance and their perceived plot to deprive the rest of the country of power and resources.[20]

    [20] 'Ethnicity across regional boundaries - migration and the politics of inequality in Ethiopia', Breines, Markus Roos, Journal of Ethnic and Migration Studies (JEMS), Routledge, 14 February 2019, p.7, 20190709103451

20. The article goes on to say:

    Even though the representations of Tigrayans as a privileged group draw upon the same problematic assumption that the government employs in its rigid and fixed approach to ethnicity, and fail to acknowledge the inequalities and varying ethnic identities among people from and in Tigray, assumptions of ethnic-based inequality and Tigrayan advantages were common in Addis Ababa.[21]

    [21] 'Ethnicity across regional boundaries - migration and the politics of inequality in Ethiopia', Breines, Markus Roos, Journal of Ethnic and Migration Studies (JEMS), Routledge, 14 February 2019, p.7, 20190709103451

21. I note that both of these sources were produced prior to the fighting beginning in the Tigray region. A November 2020 British Broadcasting Corporation (BBC) article says that some Tigrayans in Ethiopia have said they ‘have been harassed, detained or discriminated against since fighting began in their home region on 4 November.’[22]

    [22] ‘Ethiopia's Tigray crisis: Fears of ethnic profiling stalk conflict’, British Broadcasting Corporation (BBC), 25 November 2020, 20201204162117

22. The report goes on to say that ‘… people who have spoken to the BBC have said that they have been singled out because of their ethnicity rather than anything they may have done … If the conflict is short-lived then concerns about ethnic tensions may go away but if it proves to be protracted then there are fears that life for Tigrayans outside Tigray may become more difficult.’[23]

    [23] ‘Ethiopia's Tigray crisis: Fears of ethnic profiling stalk conflict’, British Broadcasting Corporation (BBC), 25 November 2020, 20201204162117

23. The situation for Tigrayans in Ethiopia has changed since the conflict in Tigray region. As above, more recent news reports indicate that those identified as Tigrayan may be harassed, detained or discriminated. Those who are identified as Tigrayan have been singled out because of their ethnicity rather than for any other reason.

24. I accept that the applicant can be identified as Tigrayan because his given name is a recognisably Tigrayan [name], [details deleted]. He is also recognisable as a member of his family, and I accept that his stepmother is Tigrayan and has had her bank account frozen and has faced other harassment.

25. The applicant fears that he may be detained or harassed by the authorities because of his Tigrayan ethnicity, and that his stepmother may have the lease on the family home cancelled, leaving him with nowhere to go. Having regard to the country information and the developing situation in Ethiopia I do not consider these fears far-fetched or implausible.

    Does the applicant have a well-founded fear of being persecuted for one of the five Convention reasons if he returns to Ethiopia now or in the reasonably foreseeable future?

26. Having considered the applicant’s claims and what I accept of those claims, I have considered what will happen if the applicant were to return to Ethiopia, now or in the reasonably foreseeable future.

27. I accept that the applicant would return to Addis Ababa and live with his family there. As above, I have accepted the applicant holds genuine political views opposed to the regime in Ethiopia. I accept the applicant holds deep political views, and is opposed to the politicisation of ethnicity and religion in Ethiopia and may express these views if returned to Ethiopia. I also accept that the applicant has been of interest to the authorities, during and following his detention. I accept that his father was detained a number of times and questioned about his son and died whilst detained. I accept that his brother [Brother B] has been detained following the [protest] and his whereabouts are unknown. I accept that the applicant will be distinguishable as of Tigrayan ethnicity because of his name and his membership of the family of his stepmother, with whom he would live if he returned.

28. These factors individually may not lead to the applicant being harmed by the authorities or anyone else. Together, however, I consider that they represent a dangerous nexus of identifiable political resistance to the regime by the applicant with his ethnic profile as of Tigrayan background and member of a family with Tigrayan background.

29. The applicant fears that he may be detained or harassed by the authorities because of his Tigrayan ethnicity, and that his stepmother may have the lease on the family home cancelled, leaving him with nowhere to go. Having regard to the country information and the developing situation in Ethiopia I do not consider these fears far-fetched or implausible.

30. Given the current and developing situation in Ethiopia, it appears to me that if the applicant were to return now to Ethiopia, this combination of factors would lead to a real chance of him being detained and potentially mistreated by the authorities. I find that if he returned he would likely face detention and questioning on return as a result of his past detention and the letter from the police. Even if he were not, as I have accepted, he would be involved in political activities on return. in concert, the authorities would become aware of his ethnicity and, given the current tensions and the continuing fighting in Tigray, this would lead to him being differentially treated by the authorities on the basis of his ethnicity.

31. Whilst the incidences of torture and other mistreatment in detention have declined, torture and mistreatment including by the police and inside prisons, is less common and there are not extensive complaints.[24] However, such information does not account for the fact that the applicant has been previously detained and mistreated by the authorities, and that he is and could be identified as having Tigrayan background. Such factors, I find, increase the chance of him facing torture or other mistreatment amounting to serious harm if he is detained or imprisoned. 

    [24] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.40, 20200812101229

32. I find that the chance of harm on the basis of his political opinion, his ethnicity and his membership of his family, together, is too great. I find that there is a real chance, that is one that is not remote or far-fetched, that if the applicant returns now or in the reasonably foreseeable future to Ethiopia, he will face serious harm amounting to persecution from the authorities for reasons of his political opinion, his ethnicity and his membership of his family. I find that the harm he has a real chance of suffering amounts to serious harm including mistreatment or torture by the authorities. Such harm would be for the essential and significant reasons of his political opinion, his ethnicity and his membership of his family, and would be systematic and discriminatory as it would be directed against him for these reasons.

    Conclusions

33. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

    DECISION

34. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a)of the Migration Act.

    Sean Baker

    
    

    Member