1711401 (Refugee)

[2021] AATA 5268

1711401 (Refugee) [2021] AATA 5268 (19 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711401

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Simone Burford

DATE:19 November 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 19 November 2021 at 4:44pm

CATCHWORDS

REFUGEE – Protection Visa – Ethiopia – race – Wolayta and Konso ethnic background– inter-ethnic marriage to a Sidama – imputed political opinion – an opposition party member – an educated and influential woman – father’s All Ethiopia Unity Party (AEUP) membership – cumulative adverse profile ­–state protection not available – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 91, 424, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.  

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 4 May 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (the Act).

   Background

2. The first applicant is a [age]-year-old Ethiopian citizen who was born in Hawassa, Southern Nations, Nationalities, and Peoples’ Region (SNNPR), Ethiopia.

3. Her parents are from the Wolayta and Konso Zones of SNNPR, Ethiopia. She is Christian and identifies herself as being ethnically Wolayta. She is married with three young children. All were born in Australia. Only one of those children is included in the application for protection (the third applicant).  She speaks, reads and writes Amharic and English. She has three siblings, one who remains with her mother in Hawassa, now Sidama. One brother lives in [Country 1] and the other is in Addis Ababa in Ethiopia.  Prior to coming to Australia she was living in [City 1], SNNPR with her husband. She and her husband met at [a workplace] where they were both working.  His field was [Field 1] and hers was [Field 2]. 

4. The second applicant is the first applicant’s spouse.  They married in Hawassa, then part of the Sidama Zone, SNNPR, Ethiopia in mid-2013.  Hawassa is now part of the Sidama Region.  He was born in Arbegona, SNNPR, Ethiopia.  He is Christian and identifies himself as ethnically Sidama.  In his application he indicated he was relying on the claims of the first applicant and did not have claims of his own.  His family lives in Arbegona, which is now part of the Sidama Region but also home to the Southern Regions Council.  He has [siblings] in Sidama.  The application indicated he was in contact with family members. He did not attend the hearings before the Tribunal however the first applicant and the applicants’ representative confirmed he did not have claims of his own. He speaks, reads and writes Sidaminga, Amharic and English.

5. The third applicant was born in Australia in [year]. He is the oldest child of the second and third applicants.  The application lists his citizenship as Ethiopian.  He is identified in the application as Christian and ethnically Sidama. He indicated in his application that he has no claims of his own and is relying on the claims of the first applicant. He did not attend the hearings before the Tribunal.

6. The first applicant arrived in Australia on [date] March 2014 on a Student (TU 576) visa which had been granted on 27 February 2014.  The second applicant arrived on [date] September 2014 as a dependent on the first applicant’s Student (TU 576) visa. His visa had been granted on 22 August 2014.

7. The first applicant had been granted a DFAT scholarship to study at [University 1].  That scholarship required the first applicant to leave Australia at the end of her scholarship for a minimum of two years in order to contribute to Ethiopia’s development.  She completed a [degree] in July 2016. The first applicant was granted a DFAT scholarship in 2013 to study at [University 1] and is working at [University 1].  The second applicant is working in [a specified field].

8. The applicants applied for protection visas on 5 August 2016. The delegate refused to grant the visas on 7 May 2017.

9. A second child was born to the first and second applicants in [year] in Australia.  She is not an applicant for the visa.   A third child was born during the proceedings, in [year].  That child is also not an applicant for the visa.

   Protection visa application

10. In her application for a protection visa, the first applicant set out the reasons she claimed she could not return to Ethiopia. These are summarised as follows:

    ·The first applicant is a married Christian of Wolayta ethnicity from Hawassa, SNNPR, Ethiopia.

    ·Her husband is a Christian of Sidama ethnicity from Arbegona, SNNPR, Ethiopia.

    ·Her husband was involved in activities supporting the rights of the Sidama and member of the Sidama Liberation Movement (SLM) in the past, and faced issues from the Ethiopian authorities on this basis, however the first applicant is not aware of specific details as this occurred prior to their relationship from June 2012. Following their marriage in July 2013, the first applicant was aware that he still faced intimidation from the authorities.

    ·The first applicant has never been a member of any political party, but has been imputed with being an opposition party member due to her views against the ruling party (the Ethiopian People’s Revolutionary Democratic Front (EPRDF)) her father’s All Ethiopia Unity Party (AEUP) membership, being a member of the Ethiopian diaspora and an educated and influential woman.

    ·Although she never partook in the protest that occurred at a university at the time, due to her father’s links and her personal views, she was arrested and detained for three days in October 2005 by the authorities.

    ·She continued to be harassed and detained for short periods by the authorities following her release and was discriminated against in employment following graduation, she refused to join and expressed to her views against the ruling party at work. Due to her treatment she found employment at another [workplace], but experienced the same issues at that workplace as she still refused to attend EPRDF meetings and criticised the party when the opportunity arose during [team] meetings.

    ·She was accused of delivering information to human rights organisations.

    ·Her father was a member of the AEUP from 2005, obtaining the title of committee member just after her departure from Ethiopia in March 2014. Her father is a prominent member of the party in her area, has been involved in campaigning for the AEUP and recruiting members, especially during election periods.

    ·In February 2013, she criticised a [person] who is a member of the EPRDF for [reasons deleted], who then slapped her in [public] and verbally abused her. She complained to the authorities and the [employer], however due to the [person]’s membership and her reputation he faced no repercussions for his actions.

    ·Her sister and other students were arrested and detained for two days on [date] November 2015 by the authorities due to protest in the area. She did not attend the protest.

    ·Her father has been regularly harassed by the Ethiopian authorities due to his activities for the AEUP, and was detained for three weeks in February 2016, and has remained in detention from July 2016. The renewed focus on her father was due to the widespread protests from November 2015 and the authorities believe that a father may incite protests in their regions.

    ·The political situation in Ethiopia has worsened since her departure in 2014, (at the time of her application) from when it has been in a government- imposed state of emergency. In combination with their father’s detention, she fears that on return to Ethiopia she will be targeted and detained by the authorities due to being imputed with being an opposition party member and holding anti-government views.

11. At the first hearing before the Tribunal she confirmed this was a fair summary of her claims for protection.

12. The applicants submitted identity documents to the Department in support of the application.  They were not represented in relation to the applications before the Department.

    The interview

13. The first applicant attended an interview with the Department on 8 March 2017. The delegate notes that the claims and incidents raised in the interview were not consistent with the information stated in the applicant’s amended written statement of claims.

    The delegate’s decision

14. On 4 May 2017, a delegate of the Minister refused the protection visa application. The applicants provided a copy of the delegate’s decision with their application for review. 

15. The delegate accepted that:

    ·The second applicant had links to the SLM prior to their relationship due to his Sidama ethnicity but that he has since ceased his involvement.

    ·The first applicant was detained for three days in October 2005 due to being suspected of being an opposition supporter, a large number of young people were arrested at that time.  The delegate also accepted the first applicant’s sister may have been arrested at that time.

    ·Her mother and brothers also have not been involved in political activities, been detained or suffered serious or significant harm in Ethiopia.

    ·The first applicant is an educated woman who may hold views critical of the EPRDF.  She does not become involved in political activities at work.

    ·The first applicant may have experienced pressure for not wishing to openly support the EPRDF however there were a number of factors that resulted in her change of employment including increased renumeration.

16. The delegate accepted the first applicant’s father was a member of the AEUP. However, given the lack of evidence regarding his claimed position the delegate did not accept that he was a prominent member of the AEUP or that he had been detained in February 2016 and from July 2016 onwards.

17. The delegate accepted the applicant would face pressure to join the EPRDF on return to Ethiopia and that she may be discriminated against as a non-EPRDF member and may face difficulties obtaining employment.  However, the delegate found this did not amount to serious harm.  The delegate found that neither the first or second applicant were active politically or would have a political profile in Ethiopia, including not engaging in political activities since leaving Ethiopia, such as may give rise to a real chance of serious harm.

18. The delegate found the applicants’ delay in seeking protection until three weeks prior to the expiry of the first applicant’s student visa indicated she did not which to return to Ethiopia for reasons other than a fear of persecution.  The delegate found this further supported a finding that the first applicant did not face a real chance of serious harm on return to Ethiopia. 

19. 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

20. On 29 May 2017, the applicant applied to the Tribunal for a review of the delegate’s decision.

21. The applicant attended hearings before the Tribunal on 17 March 2020 and 23 September 2020 to give evidence and make submissions in support of the review application.  The applicant was represented in relation to the application for review by a registered migration agent. She attended the hearings before the Tribunal.

22. The hearings were conducted with the assistance of interpreters fluent in the English and Amharic languages.

23. At the initial hearing on 17 March 2020, the Tribunal discussed with the applicant whether there were any changes to her claims or personal circumstances as expressed in her application and at the interview with the delegate.  The Tribunal discussed with the applicant the information on which she was seeking to rely in support of her claims and her intention to call witnesses in support of her application.

24. Following the initial hearing, the Tribunal write to the applicant to indicate that the further hearing of the matter would be delayed due to the COVID-19 pandemic and the closure of the Perth Registry for in-person hearings. 

25. Once in-person hearings recommenced at the Perth registry a further hearing was held on 23 September 2020.

26. A further hearing was scheduled following the submission of a significant amount of post-hearing information raising new claims or evidence.  This material is dealt with further below. Scheduled hearings on [dates] were adjourned at the applicant’s request to accommodate the birth of her third [child] and allow for a period of post-partum recovery.  A further hearing scheduled for 4 May 2021 was adjourned due to the Tribunal becoming unavailable.  A third hearing was eventually held on 12 May 2021.

27. A significant amount of new or additional information was provided by the applicants to the Tribunal in support of the application.  Prior to the first hearing the applicants submitted the following material to the Tribunal on 5 September 2017:

    ·     Statutory declaration of the first applicant, dated 28 August 2017.

    ·     Statutory declaration of [the] first applicant’s brother, dated 18 August 2017.

    ·     Statutory declaration of [the] first applicant’s sister, dated 18 August 2017.

    ·     Statutory declaration of [the] first applicant’s mother, dated 18 August 2017.

    ·     Submissions from the applicant’s representative dated 4 September 2017.

28. On 10 March 2020 the applicants submitted the following documents:

    ·     Statutory declaration of the first applicant, dated 5 March 2020.

    ·     Letter of support from [University 1] dated 4 March 2020.

    ·     Statutory declaration of [Mr A], dated 16 March 2020.

    ·     Country information.[1]

    ·     Letter of support from Pastor [B], [a named church], 28 February 2020.

    ·     Letter from [a named school] regarding the third applicant, 24 February 2020.

    ·     Copy and translation of letters from the first applicant’s mother to the first applicant dated 26 August 2017, 23 January 2018, 15 December 2018 and 3 October 2019.

    [1] Smart Traveller: Ethiopia, 10 March 2020; Ethiopia: Summary of Events 2018, 2019, Human Rights Watch; ‘Ethiopia: Security forces arrest 8000 in southern Ethiopia’, 23 August 2018; ‘Three dead as unrest rumbles in Ethiopia’s southern Hawassa city’ Aljazeera, 19 July 2019; ‘Ethiopia: University Lecturer must be released: Firew Bekele’, 20 September 2019.

29. On 23 July 2020 the applicants submitted the following information:

    ·     Statutory declaration from the first applicant dated 22 July 2020 (raising claims on behalf of the third applicant and 2^nd child – who is not an applicant for the visa).

    On 16 September 2020 the applicants submitted the following:

    ·     Country information.[2]

    [2] Amnesty International Report extract, 14 August 2020; ‘Security forces injure at least eighteen people in Wolaita Zone after arrest of officials triggers protests’, Addis Standard, 10 August 2020; Smart Traveller: Ethiopia, 16 September 2020.

30. Following the second hearing, the applicants provided a significant volume of post-hearing submissions as follows:

    On 6 October 2020:

    ·     Statutory declaration from Pastor [C] dated 5 October 2020.

    ·     Statutory declaration from Mr [D] dated 2 October 2020.

    On 25 November 2020:

    ·     Country information.[3]

    [3] ‘Ethiopia conflict in Tigray region sparks war crime fears as some 14,500 flee to Sudan, UN says’, ABC News, 13 November 2020.

31. In December 2020 the applicants’ representative requested further time to submit information and was given until mid-January 2021. On 4 January 2021 the applicants submitted:

    ·     Submissions from the applicants’ representative dated 4 January 2021.

    ·     A letter (and translation) from [a named doctor] dated 1 January 2021.

    ·     A letter (and translation) from Mr [E] dated 31 December 2020.

    Further written submissions from the applicants’ representative dated 4 January 2021 were received on 16 January 2021.

32. On 5 March 2021 the Tribunal wrote to the applicants noting the submission of a significant amount of material to the Tribunal following the second hearing, including documentary evidence and witness statements. The Tribunal noted the provisions of s 423A of the Act and invited the applicants to provide information regarding the reasons why this evidence was not presented before the primary decision was made. The Tribunal received a response to a s 424(2) invitation on 16 March 2020 including:

    ·     A further statutory declaration from the first applicant dated 15 March 2021.

    ·     A doctor’s certificate regarding the first applicant’s pregnancy.

33. On 20 May 2021 the applicants submitted the following documents:

    ·     Additional submissions.

    ·     Country information reports regarding the conflict in Tigray, violence in Konso, SNNPR, and conflict in Sidama/Wolayta.[4]

    [4] An extract from The Politics of Ethnicity in Ethiopia, L Aalen, Chapter 7 ‘Identities or Resources at Stake? Controversies on national self-determination in Sidama and Wolayta’; ‘Ethiopia – Complex Emergency’ USAID, 19 February 2021; At least 9 Civilians killed, several villages burned in renewed attacks in Konso’, Addis Standard, 12 January 2020; ‘66 Killed in Recurring conflict in Konso; IDPS, victims require urgent attention: Rights Commissions’, Addis Standard, 25 December 2020; ‘Country of Origin Information Report: Ethiopia’, February 2021, The Netherlands; ‘More arrests in Sidama as authorities refuse to hand power to new region’, Ethiopia Insight, 8 May 2020; ‘Political prisoners on hunger strike in Ethiopia’, UK Parliamentary motion, 1 March 2021; ‘Beyond Law Enforcement: Human rights violations by Ethiopian security forces in Amhara and Oromia’, Amnesty International, May 2020; ‘Ethiopia’s other conflicts: Analysts fear the conflict in Tigray could fuel violence in other parts of the country’, The New Humanitarian, 23 November 2020.

34. In submissions to the Tribunal, the first applicant disputed the findings of the delegate and claimed she was at risk of harm on the basis of her real or imputed political opinions due to her opposition to the EPRDF and her father’s role as a member of the AEUP.  She claims to be at risk of discrimination, detention and torture from Ethiopian authorities on this basis. She also claimed to be at risk due to her Wolayta and Konso ethnic background on her father’s side and her inter-ethnic marriage to a Sidama.  She also claimed to be at risk as a member of the Ethiopian diaspora.  The first applicant’s statements addressed additional claims arising since the filing of the application for protection. In particular this related to impending and realised civil war in Ethiopia and ethnic tensions between Sidama and Wolayta and tension with Ethiopian authorities in Wolayta and Konso.

35. The applicants’ representative also submitted that the applicant would be an asset to Australia, would make a contribution through paying taxes, and will fill a demand gap in Australia as a [occupation].  While the Tribunal accepts evidence of the applicant’s good conduct in Australia may be relevant to credibility considerations the Tribunal does not consider these to be otherwise relevant to the applicant’s claims for protection. 

1. Despite indications in the applicant’s claim for protection that the third applicant was not making claims of his own, in her statutory declarations before the Tribunal the applicant raised several claims on the part of the third applicant and her other children who are not applicants for the visa.  These related to the impact on the children’s education should they be returned to Ethiopia, their lack of local language skills which would lead them to suffer ‘language discrimination’ and ‘culture shock’ and the general safety risks associated with ongoing civil unrest and ethnic conflict in Ethiopia. In later submissions the first applicant also claimed the children would be subjected to discrimination on the basis of ethnicity as she is from ‘Wolayta and Konso’ and the second applicant is Sidama.  She claimed the children’s ethnic background would be identified through their surname.

2. The applicants’ claims for protection and the evidence on which they were seeking to rely were discussed at the hearings. This information and the first applicant’s oral evidence to the Tribunal at the hearings are discussed further below. The Tribunal also discussed with the applicant relevant country information, including information contained in the most recent country information report on Ethiopia issued by the Department of Foreign Affairs and Trade (DFAT) in August 2020 (the 2020 DFAT Country Information Report).[5] 

   [5] DFAT Country Information Report: Ethiopia, 12 August 2020.

   ISSUES

3. 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.

4. The issue in the review is whether the applicant has a well-founded fear of persecution in Ethiopia due to her real or imputed political opinion as an opponent of the ruling EPRDF government, due to her Wolayta or Konso ethnicity, due to her inter-ethnic marriage to a Sidama, as a member of the Ethiopian Diaspora or for any other reason, or whether complementary protection provisions otherwise apply.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

9. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.

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

    Mandatory considerations

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.  The Tribunal notes that it has had regard, in particular, to the 2020 DFAT Country Information Report[6] which is the most recent DFAT country report prepared for this purpose.

    [6] DFAT Country Information Report: Ethiopia, 12 August 2020.

    Country information

12. The DFAT 2017 Country Information Report notes of the EPRDF:[7]

    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.

    [7] 2020 Report at [2.17].

13. 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:[8]

    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.

    [8] 2020 DFAT Report at [2.2]–[2.3].

14. 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.[9]

    [9] 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,

15. 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.[10]

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

16. 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].[11]

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

17. This information is consistent with other reputable sources[12] 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.[13]

    [12] 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,

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

    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.[14]  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.’[15]

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

    [15] 2020 DFAT Report at 4.15.

18. Country information notes that in February 2018 the Ethiopian authorities released Mamushet Amare, former leader of the AEUP, who authorities had detained on terrorism-related charges since March 2017. He was later elected as chairman of the AEUP. The AEUP and Balderas for True Democracy formed a coalition to compete in the 2020 national elections. Country information also suggested that steps had been taken to loosen political restrictions in Ethiopia and release detainees.[16] The Ethiopian Constitution stipulates that no one can be held without conviction or charged and that reports of enforced disappearances have reduced.[17]

    [16] 2020 DFAT Report, page 46 at [5.27] – [5.28-.

    [17] 2020 DFAT Report, page 40.

19. With respect to government surveillance of political activities of the Ethiopian diaspora, 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.’[18] 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’[19] 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.’[20]

    [18] 2020 DFAT Report at p.48, 20200812101229

    [19] 2020 DFAT Report at p.48, 20200812101229 

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

20. 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.’[21] The UK Home Office, in July 2020 published a report in which they stated:[22]

    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).

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

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

21. More recently, it appears that the war in Tigray, ethnic unrest and other factors have impacted the Abiy Government’s tolerance of 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.[23]  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.[24]

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

    [24] 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).

22. Delayed elections were held in July and September 2021.  Abiy’s Prosperity Party was returned with a significant majority.[25] The elections follow repeated delays and the withdrawal of several opposition parties from the electoral process.  Overall, the situation arising from Ethiopia’s political and ethno-national tensions remain volatile.

    [25] Ethiopia election: Abiy Ahmed wins with huge majority - BBC News; Reuters, Officials count ballots after Ethiopia's election, new fighting reported in Tigray | Reuters, 23 June 2021.

23. In March 2021, the Danish Immigration Service reported that the initial, positive changes following Prime Minister Abiy’s rise to power have not continued and the authorities have reverted to repressive methods in order to maintain law and order.[26]

    [26] Danish Immigration Service Ethiopia: political opposition parties – recent developments March 2021

1. It is reported that all parties to the conflict in Tigray face the possibility of sanctions from the US government, as international observers fear that the conflict in Ethiopia may further destabilise an already fragile region. On 1 October 2021 Ethiopia expelled seven senior United Nations officials for ‘meddling’ in internal affairs, two days after the UN aid chief warned hundreds of thousands of people in the northern region of Tigray were likely experiencing famine due to the government’s blockade of aid.[27]

   [27] ABC News UN officials expelled from Ethiopia for ‘meddling’ in internal affairs after Tigray famine warning 1 October 2021 UN officials expelled from Ethiopia for ‘meddling’ in internal affairs after Tigray famine warning - ABC News.

2. In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. On 18 July 2021, Abiy declared a ‘total war’ on the TPLF – contingents of Special Forces (professional soldiers) and local militia have been sent from all of Ethiopia’s regions (save Tigray) to encircle the ‘rebel region’.[28] The country information reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. It is reported[29] that thousands of people have died in the fighting with approximately 2 million people being displaced and more than 5 million relying on emergency food aid. Further, it has been reported that the military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[30] A July 2021 report[31] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well-documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post-November 2020 conflict,[32] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[33] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[34]

   [28] Africa Confidential, ‘No good options on the table’, 22 July 2021.

   [29] Reuters, ‘As Tigray war intensifies, Ethiopia parades new army recruits’ dated 28 July 2021, The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23, 27.    Ibid.

   [33]    The New York Times, ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 February 2021 updated 1 April 2021 by Declan Walsh,    Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia’s Tigray Region’ dated 5 March 2021, >

   On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[35] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[36]

   [35]    The Australian, ‘Ethiopia threatens to deploy “entire defensive capability” after rebel advances’, dated 7 August 2021,    Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, Ethiopia: “I don’t know if they realized I was a person”: Rape and sexual violence in the conflict in Tigray, Ethiopia - Amnesty International, Amnesty International, 10 August 2021.

3. Human Rights Watch[37] reports that longstanding grievances and polarisation over historical and complex issues concerning land, politics and identity have led to violence among ethnic communities in Ethiopia. In 2019 and 2020 violence on 22 University campuses in Oromo and Amhara regions caused approximately 35,000 students to flee.[38] In January 2020, conflict erupted between the Amhara and Oromo groups over the use of the old national flag and decorations during the Orthodox Christian celebration of Epiphany and caused many casualties and loss of property.[39] In what has been viewed as a broadening of the Tigrayan conflict, on 11 August 2021 the OLA leader Kumsa Diriba announced that the group had formed an alliance with the TPLF and that there were plans among opposition groups to establish a ‘grand coalition’ against the government.[40] The coalition with the TPLF has been formed in opposition to the government forces despite the atrocities that were inflicted on Oromo people by the TPLF prior to 2018.[41]

   [37]    Human Rights Watch, ‘Ethiopia Events 2020’,    Ibid.

   [39]    Ibid.

   [40]    Associated Press, ‘Ethiopia Armed Group Says it Has Alliance with Tigray Forces’, Anna, Cara, 12 August 2021,    Ibid.

In November 2019 a referendum in the Sidama region voted in favour of Sidama statehood. This was followed by a period of inter-ethnic conflict and protest in the Sidma zone.  There were reported incidents of inter-ethnic violence in SNNPR in the leadup to Sidama statehood. More than 50 people died in inter-ethnic violence and in operations by security forces to combat this violence. Ethnic Sidama had taken to the streets to demonstrate for statehood and secession from SNNPR. Security forces then tried to use force to counter the demonstrations. Due to the operations of the security forces and the announcement that the referendum on secession would be postponed, radicalised groups of Sidama young people, also known as Ejeto, took to the streets to attack members of the ethnic groups. It was reported that there were over 2,000 Sidama political prisoners in detention across the Sidama and Hadiya regions in Ethiopia.

A transfer of power in Sidama was achieved on 18 June 2020 when the Southern Regional Council endorsed a motion to transfer power, achieving the recognition of a Sidama state in what had previously been the Sidama Zone of the SNNPR.  Hawassa now serves as the seat for both the Sidama Regional State and the exisiting Sourthern Regional State. It was reported at the time that border demarcation with neighbouring zones was pending.[42] A new regional state for the South Western zone areas of SNNPR was approved at a referendum in the September 2021 elections.[43]

[42]  Sidama embarks on statehood | The Reporter Ethiopia English, 20 June 2020.

[43] News Alert: Ethiopia gets eleventh state with more than 96% approval for South West referendum - Addis Standard

Further, country information suggests ongoing broader inter-ethnic conflict and a resurgence of ethno-federalism throughout Ethiopia, particularly in areas with minority ethnic groups, or historical ethnic separatist movements, including Konso and Wolayta. The applicant’s written submissions made the following claims with respect to country information and the circumstances in the applicant’s home area of the SNNPR:

·There are significant unmet food needs due to conflict-related displacement and widespread destruction and looting of crops in SNNPR’s Konso Zone.

·A series of conflicts recurred in Konso Zone from 10 November to 21 November 2020, which resulted in killings, injuries, displacement and property destruction.

·Armed attacks in the SNNPR by armed groups claimed the lives of at least nine civilians and resulted in destruction of several villages.

·There is ongoing conflict between Sidama and Wolayta in three major controversies linked to the issue of national self-determination and implementation of the institutional arrangements of ethnic federalism. These are Sidama’s struggle for control of the regional capital, Awassa, and the quest for a separate Sidama region; Wolayta’s resistance to an amalgamated North Omo language (Wogagoda) and the demand for a separate Wolayta zone; and, finally, the conflict between Sidama and Wolayta in the border areas around Lake Abaya. The evidence submitted from [Mr A] provides a personal account of encountering conflict between Sidama and Wolyata groups on a visit to Ethiopia in September to November 2019.

·There are ongoing protests in Wolayta regarding recognition of a Wolayta state.

·In August 2020, demonstrations were held in the Wolayta Zone after Wolayta community leaders were arrested. They were charged with plotting to undermine the constitution. Like the Sidama, the Wolayta want to separate from the SNNPR and establish their own state. During the riots, security forces killed at least 17 people. According to Oxford Analytica, despite the violence in August 2020 the demonstrations by the Wolayta are generally nonviolent and, as far as is known, do not pose a threat to other ethnic groups living in the region.

·In late November 2020, dozens of people were reportedly killed in violent incidents in the Konso zone of the SNNPR. The violence also affected more than 130,000 internally displaced persons. Addis Standard stated that armed groups that disagreed with the division of the Konso zone two years ago were responsible for the violence. Violence was said to have flared up in the affected area from time to time over the past two years.

·Signifcant security threats were reported in Addis Ababa and Amnesty International had noted that the use of regional police special force units to meet stretched government capacity to deal with security in Ethiopia had resulted in ‘a blatant disregard for human rights’.

·Ethiopian authorities have been detaining dozens of opposition members and journalists for prolonged periods and often without charge since late June 2020, raising serious rights concerns.[44]14011 10:52:

CONSIDERATION OF CLAIMS AND EVIDENCE

[44] reasons and findings

The Tribunal accepts that the applicants are Ethiopian nationals as claimed, noting that a copy of the first and second applicants’ Ethiopian passports are contained on the departmental file. The third applicant has not been registered for Ethiopian citizenship, however there was no information before the Tribunal to suggest he would not be eligible for Ethiopian citizenship through descent.[45]  Accordingly, the Tribunal has assessed the claims of all applicants as citizens of Ethiopia, which is also their receiving country for the purposes of the refugee and complementary protection assessments.

[45] Department of Foreign Affairs and Trade, Country Information Report: Ethiopia, 12 August 2020, p 51.

Although the applicant lived in [City 1] prior to coming to Australia, the Tribunal also accepts that the applicant would return to live in Hawassa where her family lives and where she was raised. In this regard the Tribunal notes the applicant would be returning with three small children and accepts she would, as claimed, returned to live where she would have family support.

In assessing an applicant’s credibility, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. A decision maker is not required to accept uncritically any and all of the allegations made by an applicant. ^[46]

[46] 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.

In this case the Tribunal notes the delegate did not accept significant parts of the first applicant’s evidence to be true. In particular the delegate did not accept the first applicant’s father had been, and remained, in detention since 2016 as claimed, nor that her father was a senior figure in the SNNPR AEUP involved in anti-government political activities which had caused the family members to be repeatedly detained by the Ethiopian authorities.

The Tribunal has the benefit of a significant amount of information that was not available to the delegate. The late addition of much of this information caused the Tribunal considerable concern, particularly where there was no satisfactory reason why some of those claims or evidence were not able to be raised in the original application or at the least in advance of the first substantive hearing before the Tribunal.

Notwithstanding these concerns, having regard to all the information before it, including information regarding significant shifts in the political and security landscape in Ethiopia, the Tribunal was prepared to accept some of the applicant’s additional claims and evidence.  While the Tribunal has not accepted all of the first applicant’s claims, it has ultimately concluded that significant parts of her evidence are supported on available country information and should be accepted.

The delegate inferred from the fact the second applicant made no claims of his own and did not provide any evidence which would suggest any fear of harm arising from his personal history or circumstances that he did not hold fears for his own safety, including based on his prior political activity with the SLM.  The Tribunal considers this inference is reasonable given the absence of evidence or claims from the second applicant.  It is also supported on country information given the subsequent formation of the independent State of Sidama, which includes the applicant’s claimed hometown of Hawassa (Awassa), suggesting that in any event the second applicant’s historical involvement in the Sidama liberation movement would not place him at risk of harm on return to Sidama. In this respect the Tribunal notes it is for the second applicant to make his own case and in this respect he is relying on his membership of the same family unit.

Harm due to political opinion

When asked why she applied for protection the first applicant said that she feared she was going to be persecuted if she went back. She said that when she was in Ethiopia she explained her views freely.  She said her father had been active in politics in opposition to the government and there was a lot of pressure on the family because of her father’s political activity. She claimed that she was interrogated by government security officials when she was a student, in 2005, at [a] University. She said when she was a [student] at [the] University there was an election. She was expressing her views and the security forces would randomly single them out and interrogate them. The Tribunal asked if she had ever been arrested and she said ‘I have been for, like, for an hour, four hours, or a couple of days, but on and off, actually, and most of the time they just at any time, just pick me up for interrogation and yes, at any time.  Can be in the middle of night, can be any time.’

The Tribunal asked how many times she had been interrogated and she said she couldn’t remember exactly. She said that in 2005 she was detained for three days. She said she was at risk of adverse treatment because she was an [Occupation 1] and a member of a minority group and the government put pressure on [those in her sector] and imprisoned and persecuted them. She said this had happened to her parents and her siblings and if she goes back it will happen to her too. She claimed she was ‘always active, politically express and oppose the government, especially in human rights’.  She said she was afraid they will identify her from her surname, political involvement and ethnicity as well as. 

The Tribunal asked what she meant by expressing herself and she said that there were human rights abuses and she wasn’t able to stand for that. She said that even though she wouldn’t be a member of a party she would express her feelings and fight for democracy and that would put her at risk. As an example she said that the government put pressure on everyone to support the government and if they express ideas not supporting the ideology of the government they put them in prison.  She said she was opposed to this. She confirmed that she was not a member of a political party but claimed that she had ‘mobilised people’ and ‘expressed her feelings’.  She said it was not permitted to express views contrary to the government or you end up in prison.

The first applicant claimed she was from an ethnic minority and the government encouraged intra-ethnic conflicts which she opposed. The Tribunal asked in what way she expressed herself and she said whenever she had a chance, giving an example of resisting attempts to get her to support the EPRDF while she was [a staff at her workplace].  She said in 2016 things got worse in Ethiopia.  She said there were mass protests and killings. She said her father was repeatedly put in prison. She said in February 2016 he was detained and after three weeks they released him.  She said there was a ‘big demonstration’ mainly reported in Addis Ababa, Oromo region and Amhara region. In the southern regions there was also demonstrations in [Konso].  She claimed that was why her father was detained. She claimed her father is a prominent member of the party, but from 2014 he was a committee member of the party, recruiting people to be members, mobilising members and putting pressure on the government.

The first applicant claims her father is still in prison in Ethiopia. His last known whereabouts (about a year prior to the third hearing) was [a] prison where he had been visited by her mother.  Her mother hadn’t seen him since. Prior to that her mother had seen him about once a year for 15 minutes. He had previously been in [another] prison.

The applicant’s evidence regarding her family’s harassment by Ethiopian authorities due to the father’s political profile was supported by statements from her mother, brother and sister.  It was also supported by copied of correspondence sent to the first applicant by her mother referring to the family’s circumstances in Ethiopia and by a letter from a retired police officer, Mr [E], who stated he had been working in [a] Police Station when the applicant’s father was detained in February 2016 and that he was aware he had been detained again in July 2016 and moved to another town. There was no information before the Tribunal to suggest that the letters were not genuine and giving the applicant the benefit of the doubt, the Tribunal considered they presented credible evidence of the family’s circumstances, corroborating elements of the first applicant’s claims.

1. The Tribunal asked about the details of the AEUP at that time.  The applicant didn’t remember the name of that leader and didn’t know much about the party because she was not a member.  She claimed her father didn’t tell them much about his political work, particularly as she was a female and he did not think it was her role. She said since her father was detained her family was afraid to pass on details. She said that the AEUP party didn’t exist anymore but had formed a coalition with another party.  She said there were many parties in Ethiopia and she did not know the details.

2. The Tribunal asked why her father would still be at risk if the party doesn’t exist anymore. She said that the party had merged and while she didn’t know who with, her father was still detained and the matter hadn’t been brought to court and he hadn’t been charged. She said they had asked the authorities what had happened to him but they had been intimidated.

3. The Tribunal asked if the family had sought assistance from a lawyer and she said as he hadn’t been charged you couldn’t have a lawyer.  She said even the lawyers were intimidated. She said that her mother has been interrogated by the authorities several times. She claimed her sister had been interrogated six or more times.  She said she is a university graduate and a professional but she couldn’t find a job. She said her brother has been detained and interrogated as well, when he was in Addis Ababa. She provided statutory declarations from her siblings from 2017 supporting these claims.

4. In response to country information regarding the changed political landscape in Ethiopia the applicant said that the leadership in Ethiopia, EPRDF, was the same leadership, the same people from the party, keeping the undemocratic system. She said they had the same ideology.  She said it was still the same that if you had a different view, they put you in prison. She said it was not a democratic government, they came to power by force and continue in power by force. She said that part of how they rule the country is to encourage conflict and tensions between ethnic groups. Now it is just out of control almost and there were some countries putting pressure on the government to do something.

5. She said she had tried her best to demonstrate her genuine interest in politics in Ethiopia and that the position has not changed. She said she was from a minority ethnic group and her father was a selfless man who gave up his life for what he believed. She said they were raised that way too and feel the urge to keep their father’s legacy going. She said she didn’t want the government to get away with political crimes knowing people were dying everywhere by government forces or extremists. She said Ethiopia was a failed state. She said she knows what democracy means by living in Australia and she will stand up and express her feelings – political or ethnic feelings – physically and emotionally.

6. The Tribunal had concerns regarding the credibility of some aspects of the first applicant’s claimed political activities in Ethiopia. Some of these concerns reflect matters raised in the delegate’s decision, including the lack of evidence regarding the claimed involvement of the first applicant’s father with the AEUP and his claimed persecution by the authorities in Ethiopia.  The applicant offered the statements from her family members, the letter from the AEUP and the evidence of the retired police officer in support of these claims. Others concerned the level of the first applicant’s claimed prior persecution in Ethiopia particularly given her lack of membership of any political organisation and her lack of participation in protests or other activity which may have brought her to the attention of authorities in Ethiopia.  The Tribunal was also concerned that the circumstances of her travel to Australia on a DFAT scholarship including with supportive references from her [employers] was not consistent with claimed persecution in the workplace due to her political opinions including with respect to job advancement.

7. The first applicant claimed she had been denied advancement due to her refusal to join the AEUP and had been persecuted in the workplace due to her political beliefs and opposition to the government.  However, there was no evidence suggesting the applicant’s career had been impacted on this basis. The delegate’s decision referred to positive references from [her employers] submitted in support of the applicant’s student visa application which were discussed with the applicant at the hearings.  The delegate also referred to the fact she had significantly increased her salary when she changed employers, suggesting that career advancement and not discrimination was the reason for the change. The first applicant stated in response that changes had been made generally to increase salaries in her field at that time but she had suffered discrimination for her refusal to join the EPRDF. 

8. The Tribunal does not regard the applicant’s employment history as being consistent with the applicant’s claimed persecution.  The available evidence did not support the applicant’s claim she was discriminated against in employment for reasons of her actual or imputed political opinions. The applicant claimed she had suffered as a result of her political involvement, yet she maintained stable employment at the [workplace] from graduation until she left Ethiopia on a scholarship to study in Australia. The Tribunal considered that the claim that the applicant was discriminated against in her employment is not consistent with her consistent employment in the [sector] and career progression, apparent promotion with her move to [another employer] or her strong recommendation from the [employer] for further study. 

9. The only other past incident of harm she referred to was a slap on the face from an EPRDF [person].  Setting aside concerns regarding the degree to which it could be established that action was for the essential and significant reason of her political opinions, which the Tribunal does not accept on the evidence, the Tribunal does not consider such actions would meet the threshold of serious or significant harm.

10. The Tribunal does not accept the first applicant was discriminated against or persecuted in her employment for these reasons and regards that this casts doubt on her claim to be of ongoing interest to the authorities due to her own political activities or real or imputed political opinions such as would place her at risk of serious harm on return to Ethiopia.

11. The applicant’s migration history and the circumstances of her departure from Ethiopia also contribute to the Tribunal’s concerns regarding the applicant’s claims to fear harm on the basis of her political activities in Ethiopia and Australia.  At the hearing the applicant confirmed she left Ethiopia without issue to take up an Australian government funded scholarship with the support of her [employer].  As put to the applicant at the hearing, this  suggests that the applicant was not of particular interest to the authorities.  The Tribunal also put to the applicant that the fact she had signed an undertaking as part of her scholarship to return to Ethiopia when she now says she is unable to do so might cast some doubt on the credibility of statements she makes to the Australian government. She said that she was originally planning to return but that her father’s rearrest and ongoing detention had changed her circumstances and made her fearful of returning.

12. The Tribunal also noted that the applicant did not seek protection until a number of years after arriving in Australia.  The Tribunal noted that the fact she delayed raising those claims for some years might cast doubt on the credibility of claims that the first applicant feared persecution for her political activities prior to leaving Ethiopia. As noted above, she told the Tribunal that she was originally planning to return but that her father’s rearrest and ongoing detention had changed her circumstances and made her fearful of returning.

13. The Tribunal notes the applicant was able to leave Ethiopia without incident in 2014 having obtained an international scholarship. The Tribunal finds this is not consistent with her claims to be of ongoing interest to authorities on the basis of her own activities.  However, on the basis the Tribunal accepts the later rearrest of the applicant’s father in 2016, and the ongoing harassment of her family members, the Tribunal accepts this may have changed the applicant’s position with respect to returning to Ethiopia during the period she was in Australia studying.

14. The Tribunal notes that the statements provided from a number of the witnesses in Australia seek to support the applicant’s account of the situation in Ethiopia but also attest to the first applicant’s political activity and commitment to the Ethiopian community here. With respect to events in Ethiopia, the letters demonstrate personal experiences of the current country circumstances and the Tribunal accepts them on this basis.  However, the Tribunal does not place significant weight on those statements as evidence of the events claimed by the applicant as they are not witness accounts of those events.  The Tribunal notes Pastor [C] attested to the aplicant’s work facilitating human rights discussions at the church and her interest in Ethiopian political issues.  Pastor [B] refers to her work with children in the church and her importance to the church community. Mr [D], [an organisation] Secretary, attested to her participation in the Ethiopian community in Perth. His statutory declaration indicated he had known the first applicant for about three years in his capacity as a community leader in WA and that she was passionate about raising community awareness of human rights violations and ethnocentrism. 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, which the Tribunal accepts noting that the applicant does not claim to have been involved in anti-government protests or to have been a member of a political party in Australia or Ethiopia. 

15. 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 she holds views opposed to the EPRDF.  While the EPRDF is no longer the government party, the Tribunal accepts the applicant has views opposed to some activities of the Prosperity Party Government, including failing to uphold or protect human rights in Ethiopia.

16. On the basis of the above analysis the Tribunal accepts that the applicant may have resisted attempts to force her to join the EPRDF in Ethiopia and supported anti-government protest activity (while not attending protests as such).  Having regard to country information and the applicant’s evidence, which was consistent on this point, the Tribunal accepts that the applicant was arrested or questioned on a number of occasions including being held for several days.  The Tribunal accepts on this basis it is plausible that she was assaulted while being held in police detention.

17. With respect to her father’s detention, the Tribunal noted the lack of evidence corroborating his claimed political profile with the AEUP and the lack of detail provided with respect to his activities.  The Tribunal put to the applicant country information which suggested that in February 2018 the Ethiopian authorities released Mamushet Amare, former leader of the AEUP, who authorities had detained on terrorism-related charges since March 2017. He was later elected as chairman of the AEUP. The AEUP and Balderas for True Democracy formed a coalition to compete in the 2020 national elections. She said that when the government party comes to get support for people, it releases high profile prisoners to get acceptance. Less well known prisoners are still detained.  She said it was a ‘political trick’.

18. The Tribunal put to the applicant that country information also suggested that steps had been taken to loosen political restrictions in Ethiopia and release detainees. The applicant replied that thousands were still detained. The Tribunal notes country information which suggested that the Ethiopian Constitution stipulates that no one can be held without conviction or charged and that reports of enforced disappearances have reduced.  The Tribunal notes this casts some doubt on claims that political prisoners were being held without charge or conviction. The applicant said that prisoners had been released to gain publicity for political reasons and that prisoners like her father were moved from one prison to another.

19. While the Tribunal had some concerns regarding the late provision of the documentation relating to the family’s circumstances in Ethiopia and her father’s detention, the Tribunal was prepared to accept those documents as genuine, having regard to the evidence and the country information.  The Tribunal is prepared to accept the applicant’s family members have been detained or questioned on a number of occasions with respect to their own or their father’s political activities.  There was no evidence of those family members being seriously harmed on this basis, other than her father who it is claimed has been detained without trial for a number of years.  The Tribunal is also prepared to accept that the applicant’s father was detained in 2016 and remained has detained for a number of years.  The Tribunal accepts he was last known to the family to be in detention more than 12 months ago but his current whereabouts are unknown.

20. From the country information[47] the Tribunal accepts that the situation in Ethiopia remains dangerous and volatile with considerable inter-ethnic tensions. However, notwithstanding ongoing tensions, the Tribunal considers that there has been a significant shift in political freedoms under the Abiy government.  While the first applicant has been engaged in facilitating political discussion in Australia at a community level she has not been a member of a party or an active protestor. The applicant plays a facilitative role in terms of raising community awareness of human rights issues and has no history of or declared intention to be a prominent opponent of Ethiopian ruling party policy in Australia or Ethiopia.  Her father was detained in relation to his activities supporting a political organisation which in a reformed version is no longer outlawed and is participating in the political process. While he may remain in detention, considered against country information regarding political liberalisation in Ethiopia, her family member’s ongoing residence there and notwithstanding the current inter-ethnic conflicts in Ethiopia, the Tribunal considers there to be less than a real chance the first applicant would be significantly harmed on the basis of her own political opinions or her association with her father alone. Accordingly, the Tribunal considers that there is no real chance she would be persecuted on return to Ethiopia based on her real or perceived anti-ERPDF or pro AEUP political views or her political activities in Australia alone.

    [47]    The Guardian, ‘As Ethiopia’s army declares daily victories, its people are being plunged into violence’ Alex de Waal 24 November 2020 on the basis of ethnicity

100.   As noted above, the first applicant raised claims before the Tribunal to fear harm on the basis of her minority ethnicity and inter-ethnic marriage.

101.   At the third hearing she told the Tribunal that it is very hard to go back to Ethiopia at the moment because the situation is not good.  She said her mother and sister were living in Hawassa but their situation was difficult and they suffered harassment there.  She said if she were to go back now it would be the same situation as Sidama is now a state and there were ethnic problems there. She claimed she would be in danger if she went back because there was now an ethnic problem on top of the political problem.  She said she would be easily targeted in Ethiopia due to her background and ethnicity. She said that ‘your fate is not safe’ due to ethnic tension in Ethiopia. She said that you ‘have to be pure to live anywhere now’.  She said even before this they pressured her husband (in Wolita Sodo) and her children would be in danger because they are not pure.  She said her fate was the same. 

102.   The Tribunal notes that her husband had not raised this concern on his own behalf. Further, the delegate’s decision put the second applicant on notice that no claimed fear of harm on the basis of his Sidama ethnicity or SLM involvement had been raised.  Noting that he was invited to attend the hearings and it did not attend or offer any evidence in support of claims he had faced persecution in the past or would face persecution on the basis of his Sidama ethnicity in the future, the Tribunal does not accept he has fear of serious harm on this basis.

103.   The Tribunal put to the first applicant that her own family circumstances suggested that multi-ethnic relationships are quite common noting both her parents’ marriage and her own marriage was multi-ethnic, according to her claims.  She said previously ethnicity had not been such a significant issue but now people were murdered in daylight because of their ethnicity and tensions were getting higher.

104.   The first applicant told the Tribunal her family would be unable to move, including to Addis Ababa where her brother lives and where the second applicant studied at university because Ethiopia is structured into different ethnic groups and they would be persecuted in other parts of the country. The Tribunal asked if she could live elsewhere in Ethiopia and she said there were ethnic divisions which would prevent her living elsewhere and there was violence in Addis Ababa.

105.   She told the Tribunal that her children don’t know anything about Ethiopian culture and are at risk as members of a minority at ethnic group.  It was a risk for the family because there was nowhere they could live safely.  She said she was a moral person and a religious person and she would stand up against crime. She said she stayed in Australia because it gave her freedom and democracy. She said that here no one is following her and she is not scared of being put in prison. She said she will lose everything if she goes back.

106.   The Tribunal had some concerns about the late raising of same claims with respect to harm due to ethnic minority or inter-ethnic marriage, particularly claims that her husband had experienced harm in Wolayta, which the Tribunal has noted was not claimed by him.  However, the Tribunal accepts that country information suggests that ethnic conflict in SNNPR has been an ongoing problem, particularly in the period since the Sidama referendum and that in the context of a general uptick in ethnic conflict in Ethiopia and in particular in SNNPR, in part spurred on by the successful bid for Sidama independence and the conflict in Tigray. In light of this the first applicant’s fears of ethnic persecution have assumed additional significance.

107.   Balanced against this concern, the Tribunal notes that Hawassa remains the capital of both the Southern Regional Council and the Sidama region and that the applicant’s mother and sister have been able to remain living there without suffering serious or significant harm. Further, the applicant’s husband is a Sidama and in his application for protection the third applicant’s declared ethnicity was Sidama.  This is likely to afford her some protection in Sidama.  Further, her own marriage and that of her parents were inter-ethnic marriages suggesting a general tolerance for such arrangements in SNNPR.

108.   While the country information reported instances of inter-ethnic violence in SNNPR, including between Wolayta and Sidama the Tribunal does not accept the applicant has experienced persecution on the basis of her ethnicity alone in the past, or that there is a real chance she would be seriously harmed for this reason alone in the future.

The first applicant’s cumulative profile

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

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

·Is a member of the Wolayta ethnic group living in a city which is now part of the Sidama state.

·Is in a mixed ethnic marriage to a member of the Sidama ethnic group and a mother to three small children who are of mixed ethnicity.

·Has real or imputed political views opposed to ethno-federalism and the government’s human rights performance which she would be likely to express publicly in Ethiopia.

·Has family members who may be perceived as being opposed to the ruling government and to be supporters of ethnic separatist movements in Konso and Wolayta.

·Is a female [Occupation 1] who has previously been detained by Ethiopian authorities and who would seek to work in the [sector] on return to Ethiopia.

111.   The Tribunal had some concern regarding the credibility of claims that the applicant’s father was a senior figure in the AEUP given the lack of any evidence to corroborate this claim.  However, in terms of the risk for the applicant on return to Ethiopia, the Tribunal is satisfied the first applicant genuinely holds political views opposed to some elements of the incumbent government’s agenda and that she would be likely to express such views on return to Ethiopia. Further, the Tribunal is satisfied that the applicant’s family may be perceived as supporting anti-government or ethnic-separatist movements in Konso and Wolayta based on her family’s ethnicity and her father’s prior support for the AEUP and anti-government activity in Konso.  In particular, the Tribunal accepts the first applicant advocated for human rights and democratic freedoms in Ethiopia and is opposed to ethno-federalism which having regard to her cumulative profile may bring her to the attention of Ethiopian or Sidama state authorities on return to Ethiopia.

112.   The Tribunal accepts on the evidence that the applicant has been involved in community discussions advocating for human rights and political issues in Ethiopia.  The Tribunal accepts the applicant would continue to be active in the community on issues of political significance to her on her return to Ethiopia.  The Tribunal also accepts the applicant would seek to work as an [Occupation 1] which may heighten sensitivity to any anti-government views she is imputed to hold.  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 has 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 with respect to ethnically related political issues is strained. Further, the Tribunal notes credible country information regarding the reliance on regional security forces to maintain order during the on-going conflict in Tigray and reports of resulting human rights abuses by such forces in other areas of Ethiopia.  In the Tribunal’s view this presents a risk to ethnic minorities in regional states such as Sidama where there is ongoing ethnic instability and dispute over borders and ethnic independence.

113.   In the Tribunal’s view, in an environment of increased political instability in Ethiopia, there is a real chance these aspects of the first applicant’s profile will result in the applicant suffering serious harm.

PROTECTION ASSESSMENT

Conclusion

114.   The accepts that the applicants would return to live in Hawassa where her family lives and where she was raised.

115.   For the reasons detailed above, the individual factors affecting the applicant’s profile may not on their own lead to the applicant being harmed by the authorities or by the other ethnic groups including the Sidama in Ethiopia.  However, the Tribunal regards that they give the applicant a cumulative adverse profile which places her at risk of serious harm on return to Ethiopia now or in the reasonably foreseeable future. Combined, they heighten the chance of serious harm occurring to a real one.

116.   The applicant fears that she may be detained or harassed by the authorities or harmed in ethnic violence because of her cumulative profile. Having regard to the applicant’s background and cumulative profile, the country information and the developing situation in Ethiopia, the Tribunal does not consider these fears far-fetched or implausible.

117.   Considering all the factors cumulatively, in particular the heightened political instability and increased ethnic tension in Ethiopia and the applicant’s family’s history of adverse attention from the authorities, the Tribunal is satisfied that there is a real chance, in the sense of one that is more than remote or speculative, that the applicant will be subjected to serious harm from Ethiopian or Sidama authorities on return to Ethiopia. If politically active, even at a lower level, her ethnicity and mixed marriage may place her at greater risk of adverse attention. While country information suggests that incidences of torture and other mistreatment in detention in Ethiopia have declined, and torture and mistreatment, including by the police and inside prisons, is less common[48], such information does not account for the current hostilities and the heightened military sensitivity in Ethiopia. Further, the applicant’s own prior experience indicates that detention presents a real risk of serious harm in the applicant’s circumstances.[49]

[48] DFAT Country Information Report Ethiopia, 12 August 2020, p.40, 20200812101229.

[49] 2020 DFAT Report at [5.25]–[5.27].

118.   The Tribunal is satisfied the criteria set out in s 5J(1)(a) and (b) of the Act are met.

119.   The Tribunal accepts that should the applicant return to live in Hawassa, now or in the foreseeable future, there is a real chance she will face ‘serious harm’, including arbitrary detention and physical abuse 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 of the first applicant. 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.

1. The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is her cumulative profile including her political opinions and ethnicity, as required by s 5J(4)(a) of the Act. 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 she fears involves systematic and discriminatory conduct that is deliberate or intentional and involves her selective harassment for reason of her real or imputed political opinion and ethnicity.

121.   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.  The harm that the applicant fears is from state and federal government authorities and ethnic groups who regard anti-government advocates and the Wolayta as a threat. The applicant claims that the Ethiopian authorities will not protect her from that harm, because the authorities in Ethiopia are themselves engaged in persecution or are not in control of regional areas where political and inter-ethnic conflict is likely to arise.

122.   Since the Ethiopian Government is responsible, in part, for the persecution that the applicant fears, the Tribunal is not satisfied that effective protection measures as per s.5LA are available to the applicant in Ethiopia provided by the State, party or organisation.  Further, the country information suggests that the Ethiopian government tis in part reliant on state forces to maintain control of regional areas outside the civil conflict area in Tigray and neighbouring states and that such forces have been implicated in human rights abuses. Based on credible country information, the Tribunal is not satisfied that the state is willing and able to offer protection to the applicant.  Given 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. The Tribunal finds that the applicant would not be able to access effective protection if returned to Ethiopia for the purposes of s.5LA(2).

123.   For the same reasons, the Tribunal is not satisfied that there is any part of Ethiopia in which he would be safe from the persecution that he fears due to her political opinion and ethnicity.  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.  In the Tribunal’s view, given country information and her cumulative profile the applicant would face a real chance of persecution for reasons of political opinion and ethnicity in all areas of Ethiopia. Country information suggests that ethnic minorities face discrimination in areas where they are a minority in Ethiopia.  In this regard the Tribunal notes the widespread nature of ethnic discrimination or violence in areas where the applicant would be an ethnic minority, that is outside the Wolyata. While this would not be the case in Wolayta, where she lived prior to coming to Australia, the Tribunal considers that her inter-ethnic marriage to a Sidama places her and her family at heightened risk of persecution there while ethnic tensions and border uncertainty remain a feature of the SNNPR.  Absent other considerations Sidama and Wolyata may be able to live safely in areas such as Addis Ababa, however the Tribunal does not regard that such areas offer protection now or in the reasonably foreseeable future having regard to the applicant’s particular circumstances and in particular the ongoing instability caused by the war in Tigray.  The Tribunal is satisfied the applicant would face a real chance of persecution in all areas of Ethiopia and therefore satisfies s.5J(1)(c).

124.   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 her ‘political beliefs or conceal her true political beliefs’ and/or conceal her ethnicity, which the Tribunal is satisfied she would be unable to do and therefore s 5J(3) does not apply.

125.   Accordingly, and for the reasons above, the Tribunal finds that the applicant faces a well-founded fear of persecution for reasons of her cumulative adverse profile if she 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.

1. In considering whether she comes within the definition of a refugee contained in s 5H, it accepts that she is outside the country of her nationality and unable to return to it owing to her well-founded fear of persecution. Therefore, she 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.

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

128. 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.

Second applicant

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

130. The Tribunal is satisfied that the second applicant is the husband of the first applicant and is a member of the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, as the fate of his application depends on the outcome of the first applicant’s application, it follows that the second applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

Third applicant

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

132. The Tribunal is satisfied that the third applicant is the child of the first applicant and is a member of the same family unit as the first applicant for the purposes of s 36(2)(b)(i). As such, as the fate of his application depends on the outcome of the first applicant’s application, it follows that the third applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

133.   The Tribunal remits the matter for reconsideration with the following directions:

(i) that the first applicant satisfies s 36(2)(a) of the Migration Act; and

(ii) that the second and third applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first applicant.

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.

…