1710853 (Refugee)

[2021] AATA 3076

1710853 (Refugee) [2021] AATA 3076 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1710853

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE:30 June 2021

PLACE OF DECISION:  Perth

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

Statement made on 30 June 2021 at 2:20pm

CATCHWORDS

REFUGEE – Protection Visa – Ethiopia –political opinion – member of the Coalition for Unity and Democracy (CUD) – being diagnosed with HIV  – race – Amhara ethnicity – membership of a particular social group – People living with HIV (PLHIV) in Ethiopia – possible separation of the applicant and his Australian citizen wife and children –state protection not available – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
MZXKX v Minister for Immigration [2008] FMCA 567
SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625
SZRSN v MIAC [2013] FCA 751

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 on 15 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a [age]-year-old Ethiopian citizen who was born in Dessie, Ethiopia. He identifies himself as being ethnically Amharic and is a member of the Ethiopian Orthodox Church.

3. The applicant’s parents live in Addis Ababa and are not working. He has three siblings, two brothers and one sister.  One brother works and is living in Dessie.  His other brother and his sister live with his parents in Addis Ababa.  He was married in Ethiopia in 2012 but divorced in 2014 and his ex-wife lives in [Country 1]. Prior to travelling to Australia he was living at [Educational Institution 1] in Dire Dawa, Ethiopia.

4. He has a partner in Australia whom he met in [2015] and married in 2018. She was born in Gojjam, Ethiopia.  The applicant claimed she arrived in Australia on a humanitarian visa and is now an Australian citizen.  While there was no evidence before the Tribunal of the applicant’s partner’s citizenship the Tribunal accepts, for the purposes of the review, that she is.  She is ethnically Amhara. Her parents are in Gojjam, Ethiopia and has family living in Addis Ababa.  She has [number of siblings].

5. The applicant and his partner have two children, born in [year] and [year], who the applicant submitted are Australian citizens. Again, while evidence of citizenship was not before the Tribunal it accepts for the purposes of the review that the children are Australian citizens. The applicant is working as a [occupation].

6. He arrived in Australia [in] January 2014 on [a] Student [visa], granted on 18 December 2013. That visa expired on 31 January 2016.  He was granted a second TU [student] visa on 18 February 2016. That visa expired on 31 August 2016. He made an application for a protection visa on 30 August 2016.

   Protection claims

   Protection visa application

7. The applicant detailed his claims for protection in his application from and in a Statutory Declaration dated 30 August 2016 which was provided to the Department in support of the application.  The delegate’s decision contains the following summary of the claims made in the application and interview with the Department:

   ·The applicant was an unmarried Ethiopian male of Amharic ethnicity from Dessie, Ethiopia.

   ·He was previously employed at [Educational Insitution 1] as an assistant lecturer from 2006 until 2013 until his travel to Australia on January 2014.

   ·He began being interested in politics in 2002 and become a member of the Coalition for Unity and Democracy (CUD) as a unit leader during the 2005 elections, in which he was involved, until the party’s dismantling that year by the Ethiopian government.

   ·[In] November 2005, he was detained for two months by the authorities due to his CUD membership and activities. While detained he was beaten, tortured, and was told he would be released only if he agreed to testify against the CUD leaders and that the protests that were occurring at the time were to incite instability and civil disobedience. He refused to do so.

   ·He was released due to international pressure regarding the incarceration of CUD members and political prisoners in December 2005. Following his release, he was put on a government watchlist and monitored by the ruling Ethiopian People’s Revolutionary Democratic Front party (EPRDF).

   ·He became an active member with the All Ethiopian Unity Party (AEUP) in August 2006, through his uncle, who was also active in the organisation.

   ·He travelled around Ethiopia as an AEUP member to raise awareness for the party and listen to people stories regarding the EPRDF’s activities.

   ·While employed at [Educational Institution 1], he believes he was offered the position to try and coax him to the EPRDF, however he experienced discrimination due to his political views through being overlooked for career advancement and development.

   ·[The] authorities had him sign a guarantee not to be involved in any political activity in Australia.

   ·Following the May 2010 elections, he was detained by the authorities his home, and held from September to December 2010, as they believed he may be a threat. They also confiscated his laptop and documents. While detained they tortured [him]. He lost four months’ salary over this period. He was released in December due to the tensions subsiding.

   ·Following his release in December 2010 he ceased being politically active until his departure from Ethiopia, however he did meet casually with other members of public and political parties.

   ·After his arrival in Australia in 2014 he communicated with Ginbot7 members as they were previously CUD members, becoming a member himself on [date] November 2015 (as per documents received following the interview).

   ·He helped motivate the Ethiopian community in Australia to vote in the May 2015 general elections, where EPRDF supporters in Australia informed the authorities in Ethiopia. As a result, the police came to his parents’ home and gave a letter stating will be harmed on return due to his activities.

   ·He was diagnosed with HIV in March 2016, through testing as he began a relationship while in Australia. He will be required to take medication to manage the condition for the rest of his life, otherwise he’ll be at risk of opportunistic infection and death.

   ·Fears being harmed and returned to Ethiopian due to his political involvement and HIV condition, as well as being separated from his partner and child.

   ·Due to being diagnosed with HIV, he will not be able to subsist, will be discriminated against and ostracised once it becomes known and cannot access treatment. He also believes the government will withhold treatment due to his political profile.

   ·His family do not know his diagnosis, he fears that they will disown him if they do find out due to community pressure, nor do they have the financial means to treat and support him on return.

   The applicant confirmed at the hearing that this was a fair summary of his claims for protection though Ginbot7 didn’t exist anymore so he was no longer a member of that organisation.

   The interview and submissions to the Department

8. The applicant attended an interview with the Department on 10 March 2017. Prior to the interview the applicant submitted the following documents to the Department:

   ·An AEUP membership card (obtained in January 2011);

   ·A support letter from the AEUP dated [November] 2007;

   ·A letter from [Organisation 1] dated 31 December 2010;

   ·A support letter from [another organisation] in Western Australia dated 18 July 2016;

   ·A warning letter from [a] Police Commission dated 21 October 2015;

   ·Written submissions dated from the applicant’s representative dated 7 March 2017 including supporting country information with a focus on his HIV diagnosis in addition to his political claims.

9. Following the interview, the applicant submitted the following documents to the Department:

   ·An email from the applicant to Ginbot7 attaching his completed application form;

   ·Application form to Ginbot7;

   ·Email from Ginbot7 to the applicant’s email address that was created for the purpose of involvement with Ginbot7 attaching a ‘welcome pack’ and the attached documents;

   ·Phone screenshots of [messages] claimed to be with Ginbot7 members organising [various activities], signing petitions, and meetings;

   ·Letter from Dr [A], Immunologist, [a named] Hospital dated 7 March 2017 regarding the applicant’s HIV treatment;

   ·Contract of Divorce (and translation) dated [date] September 2014 and divorce order dated [date] September 2014 for the applicant and his ex-wife;

   ·Marriage certificate from [July] 2012 for the applicant and his ex-wife.

10. The post interview submissions from the applicant’s representative dated 6 April 2017 included a note from the applicant’s representative indicating that ‘[the applicant] cannot locate the email from his father attaching the letter from the Ethiopian police; also unfortunately [the applicant’s] father cannot use a computer and accordingly when he sent the document he did so from an internet café and had the internet café send the document from their email address to [the applicant] accordingly he does not have this email trail.’

    The delegate’s decision

11. On 15 May 2017, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision with his application for review. The delegate accepted the applicant became a Ginbot7 member in November 2015 and that he attended two protests and meetings in 2016.  However, the delegate found there was no real chance the applicant would be harmed by the Ethiopian authorities on that basis.  Further, while the delegate accepted the applicant would experience stigma due to his HIV status he would have the support of his family, government, and non-government organisations and access to treatment to assist in the management of his diagnosis on return to Ethiopia. The delegate found that notwithstanding the applicant’s HIV status, his education background, work history and skills would enable him to find employment eventually.

12. Based on these findings, the delegate was not satisfied the applicant faced a real chance of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Ethiopia.

    Review application

13. On 22 May 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.

14. The applicant attended hearings before the Tribunal on 19 March 2020 and 21 September 2020 to give evidence and make submissions in support of the review application. 

15. The hearing on 19 March 2020 was held via telephone. The hearings were held during the COVID-19 pandemic.  At the time the initial hearing was conducted, the Tribunal registry was closed and the Tribunal was not undertaking in-person hearings. The Tribunal confirmed with the applicant’s representative that he was happy to proceed visa telephone prior to the hearing.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

16. At that hearing the Tribunal discussed with the applicant whether there were any changes to his claims as expressed in his application and at the interview with the delegate.  The Tribunal discussed with the applicant the information on which he was seeking to rely in support of his claims and his intention to call witnesses in support of his application. The applicant had indicated prior to the initial hearing that he wished to call his partner as a witness.  Submissions from the applicant’s representative indicated what evidence the applicant’s partner was to give however, no statement was provided from the proposed witnesses prior to the initial hearing.  The Tribunal indicated the applicant should submit a written statement from any witness he was asking the Tribunal to contact to enable the Tribunal to determine if the witnesses would be contacted to give evidence at the hearing.

17. The second hearing was held in person, once in-person hearings recommenced at the Perth registry. The applicant’s representative attended via telephone from Sydney.  In response to the invitation to attend the resumed hearing the applicant indicated he did not wish to call any witnesses and no statements from the previously identified potential witnesses were provided prior to the hearing.  The Tribunal confirmed in writing that if the applicant wished the applicant wanted the Tribunal to take account of the matters outlined in submissions as evidence from the applicant’s partner she would need to provide a statement or give evidence at the hearing.  She did not provide a statement and did not appear at the hearing.

18. The applicant indicated he did not need the assistance of an interpreter and the Tribunal was satisfied he was able to fully participate in the hearing in English.

19. Prior to the first hearing the applicant indicated in written submissions from his representative that he wished to rely on material previously submitted to the Department in support of the applicant.  In addition he provided a further statutory declaration dated 2 March 2020. He also provided:

    ·A copy of his marriage certificate to his current partner dated [date] October 2018;

    ·A birth certificate for his first child; and

    ·A medical certificate confirming his wife was expecting their second child in [month and year].

20. Following the second hearing the applicant was provided with time to provide any further submissions or evidence.  On [date] October 2020 the applicant provided further written submissions from his representative and a copy of the birth certificate for his second child. The Tribunal has had regard to the submissions and material submitted following the hearing in reaching its decision.

21. In submissions to the Tribunal, the applicant maintained that he had a well-founded fear of persecution based on his political opinions, through his affiliation with the CUD, AEUP and Ginbot7, and his activism as a member of these organisations, Amhara ethnicity and membership of the particular social group being ‘People living with HIV (PLHIV) in Ethiopia.’ The applicant submitted that as a result of his political activism and Amhara ethnicity, he has well-founded fears of a threat to his life and liberty, significant physical harassment and significant physical treatment. The perpetrators of the harm he fears are the authorities, and his relocation within Ethiopia would not prevent him from experiencing the persecution.

22. It was submitted that, as a result of being a PLHIV, the applicant has well-founded fears of denial of access to basic services such as healthcare, threatening his capacity to subsist. He also holds well-founded fears of being denied employment, amounting to a denial of capacity to earn a livelihood of any kind which will threaten his capacity to subsist. His membership to the particular social group of PLHIV in Ethiopia has also resulted in him having well-founded fears of significant physical harassment and ill-treatment. The applicant submitted that Ethiopian authorities will not protect him from this persecution, and that relocating within Ethiopia will not allow him to avoid serious harm. Severe stigma and discrimination resulting from his membership of the particular social group, PLHIV in Ethiopia, will also result in him experiencing psychological harm which the applicant submitted would amount to serious harm within the meaning in the Act.

23. Submissions made following the hearing focussed primarily on the applicant’s claims relating to his membership of the particular social group of PLHIV. The applicant submitted that the persecution the applicant is likely to face as a PLHIV includes ‘physical harm, denial and/or fatally problematic access to basic services – including medical services, poverty, psychological harm as defined by the Migration Act 1958 and as outlined in SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625, and harm as considered in the matter of MZXKX v Minister for Immigration [2008] FMCA 567.’ The applicant cited a number of Tribunal decisions concerning PLHIV related claims[1] and decisions of international Courts and Tribunals with respect to HIV[2], however none of those decisions related to return to Ethiopia. The Tribunal notes it has surveyed those decisions but as the Tribunal must consider whether the applicant faces a real chance or real risk of serious or significant harm on return to his country of nationality – Ethiopia – it considers assessment of the circumstances of individual applicant’s returning to other countries, albeit it with comparable medical status – to be of limited value in addressing the issues before the Tribunal.  This is highlighted by other Tribunal decisions where the Tribunal has reached a different conclusion with respect to PLHIV claims having regard to the particular circumstances of the applicant.[3]  However, the Tribunal has had regard to those decisions in the context of assessing whether the harm the applicant claims he may suffer on the basis of his PLHIV group membership amount to serious or significant harm for the purposes of the Act.  This claim is considered further below.

    [1] 1517252 (Refugee) AATA [27 August 2017] (Vietnam); 1509080 (Refugee) AATA [20 December 2016] (Bangladesh); 1511485 (Refugee) AATA [10 December 2018] (India); 1621844 (Refugee) AATA [8 April 2020] (Thailand); 1503082 (Refugee) AATA [5 October 2016] (Philippines);

    [2] D v United Kingdom (1997) 24 EHRR 423 (St Kitts); Ndangoya v Sweden (European Court of Human rights, Application No 17868/03, 22June 2004) (Tanzania); S.J v Belgium (Grand Chamber) Application no. 70055/10,

    [3] See for example with respect to Thailand, such as 1914051 (Refugee) AATA [2 September 2020] where the decision in 1621844 (Refugee) AATA [8 April 2020] (Thailand) was referred to and considered.

24. The applicant’s claims for protection and the evidence on which he was seeking to rely were discussed at the hearings. This information and the applicant’s oral evidence to the Tribunal at the hearings are discussed further below. At the second hearing, the Tribunal also discussed with the applicant relevant country information, including information contained in the most recent country information report on Ethiopia issued by the Department of Foreign Affairs and Trade (DFAT) in August 2020 (the 2020 DFAT Report).[4] 

    [4] 2020 DFAT Report.

    ISSUES

25. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). The issue in this case is whether the applicant meets one or more of the alternative criteria in s.36(2)(a) or (aa) of the Act; that is, whether they are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are members of the same family unit of such a person. The relevant law is set out below.

1. The issue in the review is whether the applicant has a well-founded fear of persecution in Ethiopia due to his actual or imputed political opinion as a supporter of the CUD and AEUP, due to his Amhara ethnicity, due to his membership of a particular social group of PLHIV or for any other reason, or whether complementary protection provisions otherwise apply.

2. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   DECISION MAKING FRAMEWORK

   Criteria for a protection visa

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

4. 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.

5. 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) of the Act. 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).

6. Under s.5J(1) of the Act, 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–5LA of the Act, which are extracted in the attachment to this decision.

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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Credibility assessments

8. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[5]

   [5] Summaries of the principles relating to credibility findings were provided by the Federal Court and Federal Circuit Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] to [34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30] per Kenny, Kerr and Perry JJ; DAJ19 v Minister for Immigration [2020] FCCA 2142 at [69]-[70] per Nicholls J.

9. The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[6]  Further, in assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[7]

   [6] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

   [7] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

10. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[8] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[9]

    [8] MIMA v Rajalingam (1999) 93 FCR 220.

    [9] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.

11. However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[10] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[11]

    [10] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].

    [11] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.

12. Further, the Tribunal notes that a decision-maker is entitled to consider whether an applicant subjectively holds a well-founded fear of persecution before examining whether such a fear is objectively well-founded or to proceed on the assumption that such a fear is held.  If the decision-maker finds on the evidence that the applicant does not have a genuinely held subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claims are satisfied.[12]

    [12] Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

13. The Tribunal notes that where there is a finding that there is no subjective fear of persecution, this may lead to a conclusion that the Tribunal finds the claims not to be credible.  In this respect the Tribunal has had regard to the Tribunal’s Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015 in particular at [8], [13], [17]–[19] and [27]–[28].

    Mandatory considerations

14. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.  The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report[13] which is the most recent DFAT country report prepared for this purpose.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [13] 2020 DFAT Report.

    Analysis, reasons and findings

15. The applicant travelled to Australia on an Ethiopian passport and claims to be an Ethiopian national.  The delegate had no concerns about his claimed nationality and the Tribunal accepts the applicant is a national of Ethiopia and has assessed his protection claims accordingly. 

16. The Tribunal finds that the applicant is a citizen of Ethiopia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.

    Harm due to political opinion

17. The applicant claimed that he was at a real risk of serious harm returned Ethiopian as a result of his political opinions, affiliation with the CUD, AEUP and Ginbot7 and his activism as a member of these organisations. The claimed that this risk is ‘compounded’ by his Amhara ethnicity. The summary of these claims was noted earlier.

18. During the second hearing the Tribunal asked about the experiences in Ethiopia that made the applicant fear returning to Ethiopia because of his political beliefs and he said that he was a member of a couple of political parties in Ethiopia seeking to change to country and stop discrimination for his ethnic groups and all ethnic groups.  He said he suffered from around 2004 until left county because of this.  He said he had been a member of the CUD which he joined in 2004 and the AEUP which he joined in 2004 after the CUD was deregistered by the government.

19. He told the Tribunal he became involved with the CUD as a student while living in Dessie with his uncle who was politically active.  He said his uncle got interested in politics after he joined [Educational Institution 1] in 2002 but he didn’t joint the CUD until 2004 when a coalition of parties coalition formed the CUD.  He said that when he was living with his uncle he reminded him not to join any political parties while studying he was studying because he would have trouble finishing his studies but when the CUD formed there was an awakening throughout Ethiopia and everyone thought they would win.

20. He said he couldn’t recall how many members there were but lots of students and academic staff were members.  He said he was attracted to CUD because other parties were ethnically based where the AEUP and CUD saw the government as one country. He told the Tribunal that becoming a member involved discussion with other students and communicating with the students and staff and recruiting people to vote for the CUD. 

21. He said he formally became a member by contacting a guy in Addis Ababa that he knew. He said he was a unit coordinator but that wasn’t a formal role, it was something members generally did. He said his advocacy involved speaking and raising money for printouts. He said he travelled to Harari to the office to obtain information and communicated with by phone. He said he did this with another student called [name deleted]. He said he did this for about a year in the leadup to the 2005 election but it stopped at the end of 2005 when the party was arrested.

22. He claimed to have been arrested in November 2005. In written submissions he claimed to have been involved in protests in May 2005 and to have been active in the context of the general elections in that month.  The Tribunal queried what he did between the election in May 2005 and his arrest in November 2005 and he said there were demonstrations because the government didn’t expect the level of CUD support and when the government won people demonstrated.  The Tribunal asked what the applicant had done and he said he was studying and participating in demonstrations at the university.  He said the problem was the Oromo students didn’t accept the CUD and conflict broke out and students were jailed.  He said the demonstrations were organised by students and lead by ‘members like me’.  The Tribunal asked if anyone spoke at the demonstrations and the applicant said they didn’t speak but they carried slogans. He said the Oromo students started throwing stones and breaking in the dorms.

23. He said the police started arresting students and he fled to his parents house in Addis Ababa.  He said he caught a mini bus there which took about [number] hours.  He said he got arrested the day he arrived. He said the authorities found him there because it was his registered address. He was arrested and taken to prison.  He said hundreds of CUD members were held and he was held and interrogated and tortured for 7-8 weeks and eventually released due to international pressure. He was warned and told he needed to support the government.

24. He said his family knew where he was but he did not know what they were told.  He spent a few days at his parents’ house when released and then went back to the university where the said because there were a lot of students involved they could make up classes and do final exams.   He sat exams a month later finished study in July 2006. 

25. In his application and supporting statutory declaration in 2016 the applicant claim that in the lead up to the 2005 general elections and he took an opportunity to express his views freely on numerous occasions speaking to students at meetings at university and participating in a peaceful mass rally in Addis Ababa on [date] May 2005. He said claimed to have met with leaders of the CUD, prepare banners and make a speech about the purpose of the CUD and their ideologies. He did not mention this really before the Tribunal. Nor did he mention speaking at a rally in Addis Ababa. He told the Tribunal that the demonstrations occurred at the university.

26. Further, the applicant claimed that following the rally the EPRDF started to intimidate and harass CUD members. He claimed in his statutory declaration that the EPRDF turned up to members’ houses and threatened to kill them and called their houses sometimes as frequently as every day. He said he was ‘a victim of this intimidation and harassment.’ He said he was called daily and threatened and that people turned up to his home and threatened to kill him and his family if he did not support stop supporting the CUD. He did not mention these events before the Tribunal.

27. After July 2006 he was invited for an interview to join [Educational Institute 1] with a couple of other students and he because a [occupation] in August 2006. The reference from the [educational institution] confirmed he worked there following his graduation until he left Ethiopia to study in Australia.

28. He said he joined the AEUP in 2006 because they carried the CUD policies after its deregistration. He said there were 25 AEUP members at the university and around 7 staff.  He assisted and supported the students meeting with them to talk about AEUP policies and preparing for the 2010 election. He said he joined because it was an Amhara organisation and his uncle had been a member for a very long time.  He said his uncle signed him up.  The Tribunal asked why he had originally joined the CUD and he said because the AEUP was ethnically based he felt they needed broader support.

29. He said he was travelling to regional areas around [discussing] AEUP ideologies and the [educational institute] is not happy what I was doing. The Tribunal asked how they expressed that disapproval and the applicant stated that during the election in 2010, students were protesting because of the result in the election in 2010 and students he contacted were being arrested.  He asked the [educational institute] why the students were being arrested and advocated for them to be released and the university started monitoring him and telling him he should stop.  The Tribunal queried whether the university expressed any other concerns about his activities between 2004-2010 and he said he had messages from the Dean telling him he needed to stop because sometimes he missed classes if he was travelling. The Tribunal asked why he thought he was being monitored and he said that he used to receive calls and they would say ‘this is the government and we know what you are doing’.  He couldn’t remember how many calls he had received.

30. He said there was a protest by students in around September 2010 and he was arrested and interrogated and [he was tortured].  He demonstrated he could not straighten his [body part] and had a scar on his [other body part].  He said he was imprisoned for 4 months and was released sometime in December 2010 but he could not recall when. He said he sought medical treatment after his release but nothing could be done.

31. He said when he was released he returned to [Educational Institution 1] to work.  He said the [Educational Institution 1] told him he needed to stop his political activity.  He said his colleagues were given the opportunity for further study but he was not.

32. He said he stopped his political membership at that time.  He saw nothing that would bring government to have fair elections and decided that as soon as he could he wanted to leave the country.  The Tribunal discussed with the applicant that, as noted in the delegate’s decision, he had been given a very supportive recommendation letter by [Educational Institution 1] actively supporting him for further study.  He replied that this was written by someone who was his friend.  He said it wasn’t [Educational Institution 1] who was persecuting him.

33. The Tribunal queried how he was able to maintain employment for so long if he was of interest to authorities due to political activities and he said that there were CUD members before he started and most of the political people are academic staff.  He said most opposition party leaders are still university lecturers.

34. He said that since he left Ethiopia he has met a lot of people who have been politically active.  In the middle of 2014 he connected with Ginbot7 members and attended meetings and had discussion of political situation in Ethiopia. At the time he had no concern about this as he had already left Ethiopia.

35. In his earlier statutory declaration he said that after arriving in Australia he communicated with the members of Ginbot7 as they were previously CUD members and was involved in motivating the Ethiopian community in Australia to vote in the May 2015 general elections. He said after it come to Australia his parents received a letter from [a] Police Commission and people here told him that he had been informed on.  He did not mention this in his evidence before the Tribunal.

36. The Tribunal had concerns regarding the credibility of some aspects of the applicant’s claimed political activities in Ethiopia. Some of these concerns reflect matters raised in the delegate’s decision, including the applicant’s claimed membership of, and profile with, the AUD, AEUP and Ginbot7 and his claimed persecution by the authorities in Ethiopia. 

37. With respect to the applicant’s participation in a student protest in 2005, the DFAT report notes that there were protests following gains by opposition parties following the 2005 elections, where opposition parties disputed election results favouring the incumbent EPRDF government.[14] Large-scale protests in Addis Ababa turned violent and resulted in causalities and arrests among protestors and opposition leaders. While DFAT refers to protest activities in Addis Ababa, the Tribunal accepts on the basis it is plausible that there may have been protests elsewhere, including on university campuses.

    [14] 2020 DFAT  Report at [2.36]; See also Ethiopia COI Compilation (submitted by applicant) at page 16 citing 2017 DFAT Country Information Report: Ethiopia, 28 September 2017, page 8.

1. The Tribunal accepts the applicant was at university at that time and that on that basis it is plausible that he was involved in political protests in 2005. However, the applicant’s evidence about his participation in the 2005 protests was inconsistent.  In his initial statutory declaration he stated he went to protests in Addis Ababa where he met CUD leaders and spoke.  Before the Tribunal he said there had been protests were on campus. He said he escaped to Addis Ababa where he was arrested at his parents’ house.  He did not mention attending protests in Addis Ababa or meeting CUD leaders there. The Tribunal does not accept that he had any role in protest activity in Addis Ababa in 2005 other than as a general student participant.

2. The applicant claimed he had been placed on a government watchlist following his activities in 2005.  However, the Tribunal does not accept, based on the country information and the evidence, that the applicant was placed on a government watchlist in late 2005 or early 2006. The reasons for the Tribunal not accepting this claim are that are not consistent with the lack of any consequences visited on the applicant by the university as a result of his participation in protests in May 2005 or later.  The Tribunal notes that the applicant’s evidence was that he was permitted to return to academic study with no disruption to the completion of his degree.  When the Tribunal asked the applicant why he thought he was on a watchlist he said that after the election most of the CUD members felt like they were being monitored and followed.

3. The Tribunal does not regard it as plausible that the applicant would be placed on a government watchlist with the effect of restricting his access to government services and employment, yet able to complete his university degree without further disruption.  Further, the claim to have been on a government watch list on release from prison in January 2006 is not consistent with the applicant’s employment at [Educational Institution 1] in 2006 on an ongoing and stable basis.  The available evidence did not support the applicant’s claim he was discriminated against in employment for reasons of his actual or imputed political opinions. The applicant claimed he had suffered as a result of his political involvement, yet he maintained stable employment at [Educational Institution 1] from graduation until he left Ethiopia on a scholarship to study in Australia. The claim that the applicant was on a watch list, pursued by authorities is not consistent with this employment with [Educational Institution 1] and his strong recommendation by [Education 1] for further study.  The Tribunal does not regard this to be consistent with his claims to have been passed over or watch-listed for his political activities.   

4. The Tribunal does not accept he was discriminated against or persecuted in his employment for these reasons and regards that this casts doubt on his claim to have been placed on a government watchlist or to be of ongoing interest to the authorities such as would place him at risk of harm on return to Ethiopia.

5. The applicant supported his claims of political activism with documentary evidence which also caused the Tribunal concerns.  The delegate’s decision details concerns about the veracity of the these documents.  These were discussed with the applicant at the hearing.

6. As noted in the delegate’s decision, the applicant submitted a number of documents in supports of his claims which contained errors of information which was not consistent with other elements of his claims or evidence.  These included:

   ·An AEUP membership card

   ·The letter from the AEUP

   ·The letter from the [Organisation 1]

   ·The warning letter from [a] Police Commission

7. With respect to the AEUP membership card concerns with this document included that the card had the wrong birthdate for the applicant and an expiry date of 2015 however the applicant had claimed that AEUP membership did not have expiry or renewal.  Further the applicant requested the card in January 2011, despite claiming he was not politically active after his release from prison in December 2010 and obtained the card from Dessie despite living [number] km away from there. In addition, according to the delegate’s decision he claimed to have obtained the card through his uncle however also claimed his uncle was in prison from 2009.

8. With respect to the letter from the AEUP the delegate noted that the official letterhead and stamps contained spelling mistakes. This was also the case with the letter from the [Organisation 1] and the police document which was stamped and amended by pen. The delegate found this meant  that the documents were not genuine has claimed. Delegate also raised concern that the documents were kept from 2010 until being submitted six years later but were in perfect condition despite their age.

9. With respect to the letter from the AEUP, the letter notes that the applicant was a ‘[a position]’ at the [local] branch, however he had claimed to be a ‘[a different position]’ at [Educational Institution 1].  He said these were the same thing. The letter makes no mention of his being imprisoned at the time it was issued but makes reference to the applicant being ‘forced to leave the country to save his life and the life of his family’.  In the Tribunal’s view these elements of the letter cast significant doubt on its veracity as evidence of the applicant’s AEUP membership or of any of the matters detailed in the letter.

10. The letter from the police presents similar issues including referring to a ‘last warning’ when the applicant claims it was the first he received and the fact that the letter was issued prior to the applicant’s claimed involvement with Ginbot7 in Australia, while being said to have been a response to his activities here. These issues cast doubt on the veracity of the letter.

11. Similarly, the letter from the [Organisation 1] contains elements which do not appear to relate to the applicant’s circumstances, including referring to his children being traumatised despite him having no children at the time.  The letter is referred to the Dessie Attorney-General despite the applicant not being a resident of Dessie and not claiming to have been arrested or detained there.  Further the refers to the applicant’s residence being searched; his computer being taken and his being bitten which are not claims made by the applicant. 

12. The applicant responded that he knew he was going to have to leave the country immediately when he got out of prison so he contacted the AEUP members to obtain documents and these were the documents they provided.  He stated that the letter from the Human Rights Commission was just a general letter they write in support for prisoners.  He said with respect to the police letter that he had been involved with the Ethiopian community in Australia prior to joining Ginbot7 and that he stood out because it was rare for Ethiopians to get a scholarship here.  He had no idea why it referred to it being a final warning.  The applicant submitted that he was able to read English and would not have submitted documents with these errors if they were not genuine.  This point was made also in written submissions.

13. The Tribunal accepts the applicant may have known of the errors when he submitted the documents but the Tribunal does not accept that explains the errors and inconsistences such that the Tribunal could place weight on the documents as evidence of the things claimed in them.  Further the Tribunal does not place weight on the documents as evidence supporting the applicant’s claimed account of his political activity in Ethiopia or of the interest of authorities in his activities in Australia.

14. The applicant’s migration history and the circumstances of his departure from Ethiopia also contribute to the Tribunal’s concerns regarding the applicant’s claims to fear harm on the basis of his political activities in Ethiopia and Australia.  At the hearing the applicant confirmed he was able to fly out of  Ethiopia on his own passport to take up [a] scholarship with the support of his [Workplace].  As put to the applicant at the hearing, this  suggests that  the applicant was not of particular interest to the authorities.  The applicant indicated that he had to undertake to [his workplace] that he would return and that he would not be involved in politics.   He said that when he was in Australia he also had a visa to [another country] because he knew he was not going to go back to his country.  The Tribunal also put to the applicant that the fac the had signed an undertaking as part of his scholarship to return to Ethiopia when he now says he had no intention of doing so might cast some doubt on the credibility of statements he makes to the Australian government. He replied that his plan was just not to go back to his country. He said he thought it was possible things might change.

15. The Tribunal also noted that the applicant did not seek protection until a number of years after arriving in Australia.  The Tribunal noted that given the applicant claimed to have left Ethiopia due to a fear of persecution for his political activities, the fact he delayed raising those claims for some years might cast doubt on the credibility of those claims. The applicant said he never thought delaying an application would cause doubt. He submitted that he knew he would apply but didn’t think he needed to while he had a visa.  The Tribunal asked whether he thought about raising it when he applied for his second student visa and he said he didn’t think this was relevant and that a university representative had assisted him.

16. The Tribunal notes the applicant was able to leave Ethiopia without incident in 2014 having obtained [a] scholarship. The Tribunal finds this is not consistent with his claims to be on a government watch list or a political dissident who was known to and of ongoing interest to authorities. There was no evidence that his family had been subjected to harms since he left.  During the period prior to his departure he married (in 2012) and his wife obtained a scholarship to study overseas.  These factors do not suggest the applicant was of any ongoing interest to the authorities due to his activities as a student or lecturer during 2005-2010 when he sys he ceased political involvement.

17. While the Tribunal had some concerns with inconsistencies in the documentation and the applicant’s account of his activities in Ethiopia, the Tribunal is prepared to accept that the applicant was a supporter of policies of the CUD and AEUP and may have been involved as a student in activities promoting or supporting those organisations. 

18. While the Tribunal had concerns about the credibility of some aspects of the applicant’s claims, overall and giving the applicant the benefit of the doubt, the Tribunal accepts that he holds views opposed to the EPRDF.  While the EPRD is no longer the government party, the Tribunal accepts the applicant has views opposed to some activities of the Prosperity Party Government.

19. The Tribunal notes that the statements provided from a number of the witnesses in Australia seek to support the applicant’s account of his activities in Ethiopia but also attest to political activity and commitment to the Ethiopian community here. With respect to events in Ethiopia, the letters indicate that these statements rely on accounts of events provided by the applicant and as such the Tribunal does not place significant weight on those statements as evidence of the events themselves.  However, the Tribunal places weight on the statements to the extent they support the applicant’s claims to be a committed member of the Ethiopian community in Australia. 

20. On the basis on the above analysis the Tribunal accepts that the applicant may have been involved in some student demonstrations of protest activities in Ethiopia between 2005 and 2010.  However, having regard to the concerns expressed above, the Tribunal does not accept that the applicant was an active member of the CUD or the AEUP in Ethiopia. The Tribunal does not accept that the applicant was jailed for several months in 2005 and in 2010. The Tribunal does not accept the applicant was on a government watchlist or that the applicant was of adverse interest to authorities because of his political activities or opinions, actual or imputed. The Tribunal does not accept the applicant was repeatedly called or threatened by authorities in Ethiopia.

21. Given concerns detailed above, the Tribunal does not accept the applicant’s parents received a letter in October 2015 regarding the applicant.  However, the Tribunal does accept that the applicant was became a Ginbot 7 member in November 2015 and has been involved in demonstrations in Australia in September and October 2016.  For the reasons outlined below and in particular the changes in the political landscape in Ethiopia, the Tribunal does not accept the applicant faces a real chance or a real risk of serious or significant harm on that basis alone. 

22. The DFAT 2017 Country Information Report notes of the EPRDF:[15]

    After winning around 83 per cent of the vote and winning 473 of the 547 seats in the HoPR in Ethiopia’s first democratic elections in 1995, the EPRDF and its affiliated parties subsequently won elections in 2000, 2005, 2010 and 2015. The only meaningful challenge to the EPRDF came in 2005, when opposition parties made significant gains, particularly in urban areas, winning 174 seats. Opposition parties disputed the results of the 2005 elections. Subsequent protests resulted in violence between protesters and government security forces, during which nearly 200 protesters died.

    [15] 2020 Report at [2.17].

23. However, as discussed with the applicant at the hearing, country information indicates that there has been a significant political shift in Ethiopia since the applicant departed in 2014. The DFAT 2020 Country Information Report notes[16]:

    Ethiopia held its first multi-party elections in May 1995. The EPRDF won this and all other subsequent elections, bringing stability and economic growth but restricting political dissent and media and civic freedoms for most of its time in power. The EPRDF was disbanded in December 2019… Ethnic Tigrayans, a minority, wielded outsized influence during most of the EPRDF’s rule, fostering resentment among the considerably larger Amhara and, in particular, Oromo ethnic groups. Meles Zenawi, a Tigrayan who led the removal of the Derg, served as prime minister from 1995 until his death in 2012. Zenawi was succeeded by his deputy, Hailemariam Desalegn, an ethnic Wolayta — Ethiopia’s first peaceful transition of power in modern times.

    Large-scale anti-government protests beginning in 2014, centred in Oromia and, later, Amhara states, prompted the declaration of a State of Emergency, under which over 20,000 people were arrested and 1,000 killed ….. Protesters demanded greater political rights, leading to the resignation, in February 2018, of Prime Minister Desalegn. His successor and current prime minister, Abiy Ahmed (appointed in April 2018), embarked on an ambitious reform agenda, and the human rights situation has improved significantly under his watch. Among other reforms, Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously-exiled opposition groups, expanded the space for civil society, and initiated reform of legislation used previously to arrest and prosecute government critics. In parallel, Abiy has pursued high-profile diplomatic initiatives across East Africa. He was awarded the Nobel Peace Prize in 2019 for his peacebuilding efforts with Eritrea, culminating in the signing of an agreement to formally end their war. Abiy is Ethiopia’s first prime minister from the Oromo ethnic group.

    [16] 2020 DFAT Report at [2.2]- [2.3].

24. 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.[17]

    [17] 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,

25. 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.[18]

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

26. 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].[19]

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

27. This information is consistent with other reputable sources[20] in indicating that Prime Minister 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 the reform agenda slowed later in 2019 and early 2020 but without changes being wound back significantly.[21]

    [20] 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,

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

1. 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.[22]  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.’[23]

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

   [23] 2020 DFAT Report at 4.15.

2. DFAT notes that ‘the authorities have significant intelligence-gathering capabilities and are likely to be aware of major anti-government protest activity undertaken in other countries and online.’[24] However, DFAT assesses that ‘people who openly criticise the ruling party while they are outside of Ethiopia face a low risk of official harm on their return to Ethiopia’[25] and ‘under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds.’[26]

   [24] 2020 DFAT Report at p.48, 20200812101229

   [25] 2020 DFAT Report at p.48, 20200812101229 

   [26] DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, p.48 (2020 DFAT Report)

3. 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.’[27] The UK Home Office, in July 2020 published a report in which they stated:[28]

   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).

   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).

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

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

4. More recently, it appears that the war in Tigray, ethnic unrest and other factors have impacted the Abiy Government’s tolerance of for political dissent. After the announcement of the planned dates for the postponed election, there were reports of opposition parties complaining that they would find it difficult to take part in the election due to the jailing of party leaders and supporters.[29]  The recent arrest of a Reuters cameraman is also indicative of a crackdown on media and dissent since the beginning of the war in Tigray.[30]

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

   [30] 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).

5. At the time of decision elections results were being counted in Ethiopia in the delayed national elections.  Abiy’s Prosperity Party was expected to be returned with a significant majority.[31] The elections follow repeated delays and the withdrawal of several opposition parties from the electoral process.  Overall, the situation arising from Ethiopian’s political and ethno-national tensions remains volatile.

   [31] Reuters, Officials count ballots after Ethiopia's election, new fighting reported in Tigray | Reuters, 23 June 2021.

6. Notwithstanding ongoing tensions, the Tribunal considers that there has been a significant shift in political freedoms under the Abiy government.  Ginbot7 no longer operates and while the government has attempted to supress ethno-nationalist movements, particularly in Tigray, the applicant’s espoused political views are centrist and the protest activity he engaged in in Australia was in relation to the previous ERPD government and in concert with a now de-proscribed and now disbanded organisation.  Accordingly, the Tribunal considers that there is no real chance he would be persecuted on return to Ethiopia based on his political activities n Australia alone.

   Harm due to Amhara ethnicity

7. The applicant claimed to be at risk of harm due to his Amhara ethnicity.  This claim was expressed as both an enhanced risk with respect to his risk of persecution based on him political opinion and in later submissions as an additional basis for fearing harm on return to Ethiopia.

8. The Tribunal accepts the applicant is an Amhara. However, while he originated from Dessie in the Amhara State, he has not lived there for a significant period and prior to leaving Ethiopia was living in Dire Dawa and ‘residing’ in Addis Ababa.

9. The country information[32] reports that the Amhara people are the second-largest ethnic group in Ethiopia representing 26.9 per cent of the population.[33] Their language, Amharic, the official language of Ethiopia. The Amhara governed Ethiopia prior to the EPRDF coming to power in 1991, including during military rule and the era of the monarchy.[34] While they reside predominantly in Amhara State, ethnic Amharas are present throughout Ethiopia and are the largest ethnic group in the capital, Addis Ababa where the applicant’s family resides. The population of Amhara in the capital is approximately 1.3 million.[35] Like the applicant, most Amhara are Orthodox Christian.

   [32] 2020 DFAT Report at p.23.

   [33]    2020 DFAT Report, p.23.

   [34]    2020 DFAT Report.

   [35]    2020 DFAT Report.

10. The Amhara and Oromo felt marginalised by the Tigray under the EPRDF.[36] In 2014 protests initially broke out over discrimination against the Oromo population but spread to other groups including the Amhara. Protests initially occurred in the regional state, Oromia in April 2014 due to the government’s Addis Ababa Integrated Regional Development Plan (known as the Master Plan) which sought widening the capital city’s jurisdiction over parts of Oromia.[37] The protestors opposed what they perceived to be Tigray domination of federal politics, economic and security institutions.[38] In 2016 a parallel protest wave began in Amhara. These protests initially concerned issues over land, namely the incorporation into the Tigray regional state of historically Amhara populated land, but also resentment of Tigray domination and neglect.[39] As a result, the two largest ethnic groups in Ethiopia converged in rejection of the Tigray led federal government and its repressive methods.[40]  The protests in the Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018.[41] DFAT assesses the arrest of Amhara’s during the 2014-18 anti-government protests was not ethnically motivated but reflected the then-federal government’s sensitivity to political opposition.[42]

    [36]  2020 DFAT Report.

    [37]    ‘Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.1.

    [38]    Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.3; 2020 DFAT Report at p.23.

    [39]    Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.4

    [40]    2020 DFAT Report at p.23

    [41]   2020 DFAT Report

    [42]    Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019  at p.23

100.   The election of Prime Minister Abiy in 2018 raised the expectation of change as he promised an agenda of reform,  preached unity and made peace with Eritrea.[43] In addition, since becoming Prime Minister, it’s reported that insecurity has intensified with an increase in communal violence. DFAT reports[44] that Oromo and Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression. The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military. Roughly a quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers. As result, DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity.[45]

[43]  ‘Managing Ethiopia’s Unsettled Transition,’ Crisis Group Africa Report, No 269, 21 February 2019 at p.1

[44]    Ezega News Armed Group, ‘Amhara State Agree to End Fighting’ dated 26 April 2020    Ezega News Armed Group, ‘Amhara State Agree to End Fighting’ dated 26 April 2020 The Tribunal discussed with the applicant country information regarding ethnic tensions which have surfaced with the opening up of political space since 2018. The Tribunal noted that country information indicated that ethnically motivated violence was sporadic in nature, largely occurred in rural areas targeting minority ethnicities in that area. The country information indicated the situation was different in Addis Ababa,[46] and that this may suggest there is not a real risk or real chance of harm based on Amharic ethnicity.

[46]  ACCORD – Austrian Centre for Country of Origin and Asylum Research and Documentation: Ethiopia: COI Compilation, November 2019,  The DFAT report notes that traditionally, ethnically motivated societal violence has been rare but has increased since 2018. The report notes that most ethnic groups are indistinguishable by their physical appearance. It notes that Ethiopia is a multi-ethnic society and ethnic groups enjoy extensive rights and represented in the Federal government and bureaucracy. DFAT ‘assesses official discrimination – including systematic state-sanctioned discrimination, denial of public services and higher detention rates – based on race and/or ethnicity is rare.’ The report also notes that societal discrimination tends to be positive in favour of a particular ethnic group.[47]

[47] 2020 DFAT Report.

103.   With specific reference to the situation in Addis Ababa the report states that:

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. Interethnic relations have deteriorated since 2018, and DFAT assesses the situation for ethnic minorities at the regional state-level is increasingly challenging, and they face a growing risk of violence at the hands of the majority community.[48]

[48] 2020 DFAT Report at [3.3].

104.   The DFAT report considers that arrest of Amhara in the 2014 – 2018 anti-government protests were not ethnically motivated. DFAT assesses that ‘Amhara face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. The Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are a minority.’[49]

[49] 2020 DFAT Report at [3.10].

105.   Following the murder of Hundessa and the violence and arrests that occurred, ‘the Prime Minister’s Office stated in a press release on 10 July 2020 that, ‘contrary to erroneous reporting’, calm had returned to Addis Ababa and affected areas of Oromia State.’[50]

[50] 2020 DFAT Report at [2.53].

106.   The applicant claimed that as an Amharic person who formerly supported opposition parties, he would face more than a remote risk of harm on return to Ethiopia. With regard to this claim, the Tribunal notes that it has not accepted that the applicant engaged in all of the claimed past activities nor that he was more than a low level former supporter or member of CUD, AEUP or Ginbot7, nor that he would engage in politics more than at the low level he had in the past. It follows that the Tribunal does not consider the applicant would face an enhanced risk of persecution on that basis because he is an Amhara. Further, the Tribunal does not accept that the country information, when carefully considered, indicates that people of the Amharic ethnicity resident in Addis Ababa are at more than a remote risk of harm for reasons of their ethnicity.

107.   Country information indicates that there have been ethnic clashes, but these have been largely in regional areas rather than in Addis Ababa. It also indicates that those arrested were primarily Oromo, such as Jawar Mohammed, from Oromo based political parties.  Large scale conflict has been focussed on Tigray and borer areas where ethnic tensions have arisen.

108.   The Tribunal considered that the applicant is of the Amhara ethnicity, that he was registered as living in, and would return, to Addis Ababa where most of his family resides. The Tribunal finds that in Addis Ababa, Amhara make up a majority of the population and Amharic is spoken by a large majority of the city’s population.[51] The Tribunal further finds that official discrimination against Amhara is rare and does not reach the level of a real chance of serious harm or a real risk of significant harm.[52] Despite ethnic tensions and violence rising, the country information indicates that this has largely, but not exclusively, taken place in the regional areas,[53] and that in Addis Ababa ethnic groups have co-existed and violence based on ethnicity is not common.[54] In addition,  Amharic being the official national language allows Amhara greater freedom of movement than other groups.[55] The Tribunal finds that credible, contemporary country information including the DFAT assessment strongly supports a conclusion that Amhara are not harmed or discriminated against and face a low risk of official discrimination and have been the subject of ethnic based attacks in areas where they do not form the majority. [56]

[51] UK Home Office Country Policy and Information Note Ethiopia: Background information, including internal relocation, September 2020, World Population Review: Addis Ababa,

[52] 2020 DFAT Report

[53] See United States Department of State, Country Reports on Human Rights Practices for 2019 – Ethiopia, USDOS, 11 March 2020.

[54] 2020 DFAT Report at [3.3].

[55] UK Home Office Country Policy and Information Note Ethiopia: Background information, including internal relocation, September 2020, 2020 DFAT Report at [3.10].

109.   The Tribunal finds, based on country information, that in Addis Ababa, the chance of harm to a person of the Amhara ethnicity is remote. The applicant is a male of the Amhara ethnicity who has family in Addis Ababa. He worked as an academic and has been a low level political supporter. If he returned the Tribunal accepts that the applicant may work in academia again and that he may choose to be involved, at the same low level, supporting opposition parties. In the event he returned to Dire Dawa, there was no evidence or country information to support a claim that he would face harm there due to his ethnicity.  On the country information and evidence the Tribunal finds that there is no real chance that the applicant will suffer serious harm amounting to persecution for reasons of his Amhara ethnicity or any reason connected to his ethnicity if he returns to Ethiopia, now or in the reasonably foreseeable future.

Harm due to HIV status

110.   The Applicant also claims to fear harm due to his membership of a particularly social group of People Living with HIV (PLHIV). 

111.   With respect to his HIV status, the applicant relied on a report dated 7 March 2017, from Dr [A] a Consultant Immunologist at [a named] Hospital.  The letter was prepared for the Department of Immigration.  It notes the applicant’s HIV diagnosis and his daily antiretroviral treatment medications. The report notes that the applicant was diagnosed in April 2016 and that Dr [A] has been treating him since that date.  The report notes:

Therefore, [the applicant] does have chronic HIV infection, which is very well controlled with his current antiretroviral regimen. [Details deleted]. His compliance with antiretroviral therapy and medical appointments has always been excellent. Therefore his prognosis is excellent and we will predict a normal life expectancy as long as he has ongoing continuing access to antiretroviral therapy.

Antiretroviral therapy is the only effective treatment for HIV infection and has been extremely effective in controlling the disease and improving the morbidity and mortality from HIV infection. [The applicant] does require ongoing lifelong access to antiretroviral therapy to maintain good health. If [the applicant] returns to Ethiopia it is extremely unlikely he will have access to antiretroviral therapy and it is extremely likely he will develop infections and become unwell if he were to lose access to antiretroviral therapy. Intermittent therapy can also be associated with development of antiretroviral resistance. It is also very possible that [the applicant] may experience discrimination if he is to return to Ethiopia as discrimination against HIV positive individuals is very common in parts of Africa, although I am not aware of the specific situation in [the applicant’s] home region.

Furthermore, it is definite that [the applicant] will suffer from lack of familial support including isolation and psychological distress if he is returned to Ethiopia. [The applicant’s] wife currently resides in Australia and she is due to deliver their first born child [together].

[72] CSV15 v MIBP [2018] FCA 699 per Collier J at [30]; CHB16 v MIBP [2019] FCA 1089 per Reeves J at [65]-[68].

136.   For the reasons set out above, whilst the Tribunal accepts the applicant does not wish to be separated from his wife and children and would suffer emotionally as a result of any increased separation from them, it does not accept that he would be significantly harmed on this basis.

137.   Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk that the applicant will suffer significant harm for the purposes of s.36(2)(aa) of the Act due to being separated from his wife and children.

138.   However, the Tribunal does consider the applicant’s separation from his wife and children to be relevant to considerations as to what will happen to the applicant if he returns to Ethiopia.  The applicant maintained his family were unaware of his HIV status and would disown him if they became aware.  He claimed he would be without family support as a result.  The applicant claimed his wife and children would remain in Australia, in part due to his wife’s own status as a former refugee from Ethiopia.  However, the Tribunal does not accept the mental stress the applicant would suffer as a result of any discrimination his family would suffer in Australia as a result of his HIV status being known would give rise to a claim for protection.  Such harm in the Tribunal’s view falls squarely within the types contemplated and rejected by the authorities cited above.

139.   The applicant said that he fears his family will reject him, he also fears discrimination in the workplace were people to find out that he was HIV positive. He fears that health workers will not be able to keep his information confidential. He also fears discrimination in access to health services because he is HIV positive.

140.   Giving the applicant the benefit of the doubt the Tribunal accepts the applicant’s family may not be aware of his HIV status as he is well and has not suffered HIV related illness.  Although there was no evidence offered to support the applicant’s claim his family would disown him if they knew of his HIV status, the Tribunal is prepared to accept based on country advice that they may dissociate from him if this were known.  The Tribunal also accepts that this would leave him without family support in Ethiopia. The Tribunal accepts on the country information that family support may be an important factor affecting the ability of PLHIV in Ethiopia to access services including health care and to subsist.

141.   Based on the country information the Tribunal considers that PLHIV in Ethiopia may not have a real chance of serious harm where they have access to family or other social support, prospects for employment and a history of compliance and maintenance of ART therapies.  This is because the country information established that ART therapy is freely available to all Ethiopians and while the reasons of PLHIV not accessing or maintaining ART treatments is not clear on the country information, it can reasonably be inferred that those who have previously complied with such a regime and are aware of the need to maintain treatment in the longer term would do so where access is available and the alternative is a  likelihood of illness and premature death.

142.   As referred to earlier in this decision, in order to meet the refugee criteria an applicant must have a well-founded fear of persecution which involves serious harm. The indicative examples of serious harm set out in the legislation reflect an intention of the legislature that the harm reach a particular level of seriousness. Discrimination and ostracism on their own, if not leading to serious harm, may not reach the level of persecution. However where there is such a level of discrimination and ostracism that it may lead to inability to subsist then there may be a well-founded fear of persecution involving serious harm.

143.   The Tribunal accepts that PLHIV would suffer social discrimination.  However, the country information does not suggest discrimination on the basis of HIV status alone is such that it would lead to an inability to subsist.  While the Tribunal accepts that PLHIV may suffer social discrimination in Ethiopia, the Tribunal is not satisfied that PLHIV are denied access to essential health care for the essential and significant reason of their HIV status.  In circumstances where family support and health treatment is available the Tribunal considers the risk of serious harm would be less than a real risk.

144.   As such while there was evidence of social discrimination against PLHIV in the Tribunal’s view this  absent other considerations, the applicant’s membership of a particular social group of PLHIV alone gives rise to a real chance of serious harm, for the reasons outlined below the Tribunal is satisfied that he is owed protection.

The applicant’s cumulative profile

145.   The considered the applicant’s claims individually and cumulatively to assess what will happen if the applicant were to return to Ethiopia, now or in the reasonably foreseeable future.

146.   The Tribunal considers that the applicant has a cumulative profile of adverse factors, as a person who:

·Is a member of the particular social group ‘PLHIV’;

·Is reliant on ART treatment on a daily and ongoing basis to prevent illness and death;

·Is at risk of being without family support in Ethiopia;

·Has real or imputed anti-government views which he would be likely to express in Ethiopia.

147.   As the medical evidence points to the applicant adherence to ART regimes and the applicant acknowledged in evidence that his current health is due to strict maintenance of his ART regime, the Tribunal does not accept the applicant would not access health services available to him even where doing so may give rise to a risk of disclosure.  This is because the applicant acknowledges that his long term health is dependent on such treatment. However the accepts that the applicant may be without family support in Ethiopia and the Tribunal accepts based on country information that as a result the discrimination the applicant may suffer if his HIV status is known his ability to maintain employment and access basic services may be significantly impacted.

148.   The Tribunal had some concern regarding the credibility of claims of the applicant’s activities with CUD and AEUP.  However, in terms of the risk for the applicant on return to Ethiopia, the Tribunal is satisfied the applicant genuinely holds political views opposed to some elements of the incumbent government’s agenda and that he would be likely to express such views on return to Ethiopia.

149.   The Tribunal accepts on the evidence that the applicant was a general supporter of opposition parties in Ethiopia and that he was member of Ginbot7 in Australia and involved in community movements advocating on political issues in Ethiopia.  While most of that activity was directed towards the previous administration the Tribunal accepts the applicant would continue to be vocal at a community level on issues of political significance to him on return to Ethiopia.  However, the Tribunal does not accept that the applicant would face a real chance of serious harm on that basis alone. Country information notes in this respect that the political system in Ethiopia have opened space for political opposition, particularly where such opposition is not directed to ethno-federalist ideals.  However, the Tribunal also accepts there is significant political instability in Ethiopia at this time and that the tolerance for political opposition, particularly form ethnically based political movements is strained.

150.   In the Tribunal’s view, in an environment of increased political instability in Ethiopia, there is a real chance these aspects of the applicant’s profile will result in the applicant suffering serious harm given the applicant’s HIV status and likely lack of family support in Ethiopia. The Tribunal also considers that as a person who is HIV positive, should he become active even as a general supporter of opposition movements critical of the current government, there is a real risk he would be singled out for adverse attention by authorities, including questioning and imprisonment.  Were he to be imprisoned, even on a short term basis this may put at risk his access to ART therapy which would compromise his health and put him at a real risk of serious illness and death.  Even though the Tribunal considers these risk are lessened if the applicant returns to Addis Ababa, the Tribunal considers they remain a real risk.  The Tribunal considers that the applicant’s HIV status becomes known there may be denied access to employment, housing and basic services and may be unable to subsist. 

151.   Considering all the factors cumulatively, heightened political instability, stigma and ostracism, discrimination in access to services including health services, job discrimination and lack of familial support, the Tribunal is satisfied that there is a real chance that the applicant will not be able to subsist as he will be unable to obtain or keep a job and he will be discriminated against in access to services. If politically active, even at a lower level, his HIV status may provide a target for authorities. It will also heighten the risk he would suffer serious harm in questioned or detained and denied access to regular medications and treatment.  The Tribunal accepts based on county information regarding conditions in prisons and detention facilities in Ethiopia that detention presents a real risk of serious harm in the applicant’s circumstances.[73]

[73] 202 DFAT Report at [5.25] – [5.27].

152.   The Tribunal accepts that should the applicant return to live in Addis Ababa, now or in the foreseeable future, there is a real chance he will face ‘serious harm’, of the types noted above, from social groups opposed to PLHIV and from the authorities as required by s.5J(4)(b) of the Act, in that it involves threat of significant physical harassment or ill-treatment and a threat to his ability to subsist. The Tribunal considers that the instances of harm which the applicant may suffer constitute ‘serious harm’ having regard to s.5J(5) of the Act.

153.   The cumulative aspects of the applicant’s profile, as listed above, bring the applicant within membership of a particular social group as defined by the Act. The Tribunal is satisfied the criteria set out in s.5J(1)(a) and (b) of the Act are met.

154.   The law provides that it is not sufficient that a person has a real chance of being persecuted only in a particular part of the receiving country. Under s.5J(1)(c), the real chance of persecution must relate to all areas of the relevant receiving country.

155.   Section 5J(2) of the Act provides that an applicant to whom effective protection measures are available does not have a well-founded fear of persecution. Section 5LA(1)(b) requires that the relevant State must be both willing and able to offer the relevant protection.

156.   The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is his real or imputed political opinions and membership of a particular social group, as required by s.5J(4)(a) of the Act. Combined, they heighten the chance of serious harm occurring to a real one. Further, the Tribunal is satisfied that this harm involves systematic and discriminatory conduct, as required by s.5J(4)(c) of the Act, in that the persecution which he fears involves systematic and discriminatory conduct that is deliberate or intentional and involves his selective harassment for reason of his real or imputed political opinion or membership of a particular social group.

157.   The Tribunal has gone on to consider if effective protection measures are available to the applicant in Ethiopia as required by s.5LA.  Section 5LA(2) provides certain circumstances in which a State is deemed to be able to offer protection against persecution to an applicant. The State will be taken to be able to provide protection against persecution if the person can access the protection, the protection is durable and, in the case of protection provided by a State, there is an appropriate criminal law, a reasonably effective police force and an impartial judicial system. These are findings of fact, to be assessed based on the evidence before the decision maker. As to whether the applicant can access the protection, the harm caused is by employers, providers of services and members of the community. The Tribunal considers that the nature of the harm feared by the applicant means that there are no effective protection measures available to him. The harm that the applicant fears is from members of the community and government authorities and the applicant claims that the Ethiopian authorities will not protect him from that harm, because the authorities would view his anti-government views as a threat and may discriminate against him due to his HIV status. Further, the applicant’s membership of the particular social group of PLHIV is likely to cause him to be stigmatised in engagement with authorities in Ethiopia and to be unable to engage with authorities in a manner which would enable him to obtain effective protection.

158.   Based on credible country information, the Tribunal is not satisfied that the state is willing and able to offer protection to the applicant.  Given societal attitudes to PLHIV and the current political and ethnic instability in Ethiopia, the Tribunal is not satisfied that effective protection measures as per s.5LA are available to the applicant in Ethiopia as provided by the state.

159.   The Tribunal has gone on to consider if the applicant faces a real chance of persecution in all areas of Ethiopia as required by s.5J(1)(c).  In the Tribunal’s view, given his cumulative profile the applicant would face a real chance of persecution for reasons of political opinion and membership of a particular social group in all areas of Ethiopia given the widespread nature of social discrimination against PLHIV and the ongoing political instability in Ethiopia.

160.   The Tribunal notes that s.5J(3) of the Act states a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, or conceal an innate or immutable characteristic.  In this case the Tribunal is satisfied that the modification would require the applicant to modify his ‘political beliefs or conceal his true political beliefs’ and/or conceal his illness, which the Tribunal is satisfied he would be unable to do and therefore s.5J(3) does not apply.

161.   Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well-founded fear of persecution for reasons of his cumulative adverse profile if he returns to Ethiopia, now or in the reasonably foreseeable future. The Tribunal accepts that the applicant has a well-founded fear of persecution for the purposes of s.5J.

162.   In considering whether he comes within the definition of a refugee contained in s.5H, it accepts that he is outside the country of his nationality and unable to return to it owing to his well-founded fear of persecution. Therefore, he meets the criteria in s.5H(1).  There is no information before the Tribunal to indicate that any of the exclusions set out in s.5H(2) apply to the applicant. There is no evidence before the Tribunal to suggest that the applicant has a right to enter and reside in a third country for the purposes of s.36(3) of the Act.

163. The Tribunal finds, therefore, that for the purposes of s.36(2)(a) of the Act, the applicant is a refugee.

164. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.

DECISION

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

Simone Burford
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

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

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

Council of Europe: European Court of Human Rights, 19 March 2015 (Nigeria) – with respect to this decision the applicant cited the opinion of Judge Pinto De Albuquerque however the Tribunal notes that was a dissenting opinion where the Grande Chamber stuck out the application follow agreement between the applicant and the Government of Belgium.

1544

Southwest Ethiopia, 2 December 2019 / Revised: 21 January 2020 / Accepted: 24 January 2020 / Published: 29
January 2020