1716967 (Refugee)

[2017] AATA 2967

1716967 (Refugee) [2017] AATA 2967 (21 November 2017)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1716967

COUNTRY OF REFERENCE:                  Eritrea

MEMBER:Christine Cody

DATE:21 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration and directs that the applicant is a refugee within the meaning of subsection s.5H(1) of the Migration Act.

Statement made on 21 November 2017 at 2:29pm

CATCHWORDS
Refugee – Protection visa – Eritrea – Social group – Freedom fighter of Eritrea People’s Liberation Front (EPLF) – Committed criminal offences – Suffers mental illnesses – Failure to do national service – Imputed political opinion

LEGISLATION
Migration Act 1958, ss 5H-LA, 36, 65, 501(3A),
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 - SUMMARY[1]

[1] The source of the migration history in this section is the delegate’s decision record provided to the Tribunal by the applicant.

1. The applicant claims to be a citizen of Eritrea. He arrived in Australia [in] July 1986 and has not departed since. [In] July 1986 he applied for an entry permit which was granted for three months. Further entry permits were granted thereafter. [In] November 1986, the applicant was granted refugee status (Refugee Convention/ Protocol). [In] December 1987 he was granted a permanent entry permit on refugee grounds. [In] September 1994 he was granted a Class BF Transitional (Permanent) visa under the Migration Reform (Transitional Provisions) Regulations.

2. [In] August 2015 that visa was cancelled under s.501(3A) of the Act. [In] August 2015 the applicant applied for a revocation of the cancellation. [In] January 2017, the Assistant Minister decided not to revoke the cancellation decision.

3. The Tribunal notes that the applicant has serious mental health issues and numerous criminal convictions, both of which span a significant period of time. It appears that the majority of his offences were committed after his diagnosis of chronic schizophrenia in or about 1996. In the past, there have been several occasions where the Department has considered whether or not to cancel the applicant’s permanent visa on the basis of his criminal convictions. This did not however occur until [January] 2017, when the Minister decided not to revoke a s.501(3A) cancellation of his permanent visa.

4. After his visa was cancelled, the applicant was entitled to apply for a protection visa to the Department. [In] November 2016, the applicant applied for a protection visa under s.65 of the Migration Act 1958 (the Act), claiming to be a refugee or entitled to complementary protection. The Department accepted this application as a valid application for a visa. After considering the application, the delegate of the Minister for Immigration refused to grant the visa [in] July 2017.

5. This is an application for review of the decision made by the delegate to refuse to grant the visa.

6. The applicant is a chronic schizophrenic located in a remote detention location, who was not represented by a registered migration agent, and the Department had numerous files, not all of which had been provided to the Tribunal initially[2]. The Tribunal made numerous enquiries and requests to obtain sufficient information in order to be satisfied of its findings in this matter. The majority of new information was provided after the hearing. Although a file[3] requested was still outstanding, the Tribunal considers that it now has sufficient information to make a decision.

   [2] For example it was initially stated that a partial recording of the delegate’s interview was all that was available; after further requests the complete recording was located. The delegate’s decision record referred to letters which were not present on the Departmental file which the Tribunal requested and subsequently received. Further, reference was also made in the delegate’s decision record to a comparison of the applicant’s evidence between his first interview with the Department in 1986 and the current interview; however there was no evidence of the 1986 interview on the current DIAC file; nor was there any information provided relating to the matters which had led to the Department cancelling his visa. The Tribunal requested and received the Departmental files [File number] and [File number]

   [3] The original file relating to the grant of refugee status, although the Tribunal has recently received the transcript of the interview from that file (which had been referred to in the delegate’s decision record [of] July 2017). 

7. For the reasons set out below, the Tribunal is satisfied that the applicant is a refugee as defined in s.5H(1). The relevant law is set out in Annexure A.

8. It is not the role of the Tribunal to make any finding about whether or not the applicant is entitled to remain in Australia; that is a matter to be considered by the Department. The only requirement of the Tribunal is to consider whether or not the applicant faces a well-founded fear of persecution (or a real risk of significant harm) in Eritrea, in accordance with the law. The Tribunal has found that he does. It is now up to the Department to consider any other relevant provisions of the Act, including:

   · The Tribunal notes that even if a person meets the elements of the refugee definition in s.5H(1), he or she may nevertheless not meet the criterion in s.36(2)(a) because of the operation of s.5H(2). Section 5H(2) provides that s.5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations.

   · Section 36(1C) provides further criteria for the Department to consider when deciding, once a person has been found to be a refugee, whether or not they should be granted a protection visa. This includes, whether or not the refugee is a danger to the security of the country, or whether, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.

9. The Migration and Refugee Division of this Tribunal, considering an application under Part 7 of the Act, has no power to determine s.5H(2) issues: s.411(1)(c) and (d), nor issues in relation to s36(1)(C). As the Tribunal is satisfied that the applicant is a refugee as defined in s.5H(1), the matter will be remitted to the Department for reconsideration, including consideration as to whether s.5H(1) does not apply in this instance, because of the application of s.5H(2), as well as consideration of s36(1)(C)of the Act

   CLAIMS AND EVIDENCE

   The Department

10. The Tribunal had access to the Departmental file and the Tribunal file. The Departmental file contains documents including a letter from a volunteer (who had assisted the applicant with his documents) enclosing the applicant’s protection visa application forms, his statement, country information, information on available services in Australia (after his proposed release from detention) to assist him to reside in the community with his existing mental illness and drug dependence, and her own letter of support. There is also a copy of the recording of the interview with the delegate (to which the Tribunal has listened) and the delegate’s decision record.

11. There are no certificates restricting disclosure of any material on the Department’s file.

    Current protection visa application

12. The applicant’s background and claims presented to the Department can be summarised from his application form and statement as set out below:

    ·His statement is a summary of his claims for protection, not an exhaustive statement. He also relies upon claims in his original, successful application for asylum, which he does not have a copy of, and will provide information in relation to his claims during an interview with the Department.

    ·He notes that his memory is very bad and that he can’t recall dates, names and the order in which past events occurred; he is worried that some of the details he has produced may be wrong.

    ·He was born [in date] in Eritrea (as noted by the delegate’s decision record, at the time of his birth, he was born in what was then known as Ethiopia). His ethnicity is Eritrean and his religion is Christian.

    ·His parents separated when he was young; he was unhappy as a child and ran away from home more than once. He finally left school and home at the age of [age] and went to the city. He lived on the streets for a while.

    ·At the age of [age] or [age] years, he joined the Guerrilla Freedom Fighters (Eritrea People’s Liberation Front) hereafter referred to as “EPLF”. He was jailed for more than a year for possession of a gun. When he was released, he was followed by the police, and feared for his life and fled (then Ethiopia), on approximately [January] 1985.

    ·He feared the police and government who were corrupt and had put him in prison and so could not seek help or remain in the country (the Ethiopia). He did not have a passport or travel document; he has never held a passport. He travelled illegally to [Country 1], without any identity documents then took a ship to [a second country], then to [Country 2], and then to Australia.

    ·[In] July 1986 he arrived in [an Australian city] as a stowaway. He was detained in [immigration detention] for about three months. He was granted permanent residency in late 1996.

    ·He started hearing voices in about 1995. He used alcohol to drown out the voices. He was diagnosed with schizophrenia about 10 years after arriving in Australia. He depends upon medication to manage his symptoms. He does not believe that he will have access to doctors, support or medications needed to manage his illness in Eritrea.

    ·He is remorseful for his offences, which commenced in 1994, and believes that he self-medicates using alcohol because of his schizophrenia and his long-term alcohol addiction.

    ·He fears that if he goes back to Eritrea, even after 30 years, he will be seriously harmed or killed by enemies from the EPLF or the corrupt police and the government and he does not believe he will be safe. He faces being arrested or being locked up, even after 30 years.

    ·He is fearful that he will be conscripted for a period of indefinite national service and forced labour. Since he left 30 years ago, a conscription system has been introduced which is not limited to young people and anyone who resists national service can be killed.

    ·He fears he will be taunted and discriminated against because of his illness and as a migrant. He “feels” more Australian than Eritrean now.

    ·If he returns, he will have no one to support him, to help him find a safe place to live, to stay on his medications or manage his paranoia. He does not believe that he would have access to doctors, support or medications needed to manage his illness. He is currently receiving support and is in recovery for his alcohol addiction; when he takes his medication at the right dose and receives good support, he manages well.

    ·He believes that his parents are both dead and he has had no contact with his siblings for years.

    ·In 2015 he was transferred to [an] IDC in September 2015 and then in October 2015 he was transferred to [another location].

13. Country information was provided including:

    ·     Mandatory national service was implemented after Eritrea gained its independence from Ethiopia, as a precautionary means to be protected against any threats to Eritrea’s sovereignty, to instil national pride, and to create a disciplined populace.   

    ·     Amnesty International in December 2015 stating that national service is a significant issue in Eritrea, and attempts to flee national service has resulted in Eritreans contributing to the third largest number of refugees trying to reach Europe. National service continues to be indefinite, often lasting for decades, with conscripts including girls and boys from the age of 16 years, as well as the elderly.   The indefinite nature (examples being given of periods of 10 to 20 years), as well as the service amounting to forced labour on a national scale, is causing Eritreans to flee the country.

    ·     An article from Human Rights Watch from September 2016 and /or from Freedom House in 2016 both refer to the June 2015 United Nations Human Rights Council (UNHRC) Report, and note that although national service is intended to last 18 months, is often much longer is, such as a  decade or more, and harsh, with non-existent pay. Arbitrary detention is commonplace, particularly for those who try to evade national service. Further, political detainees (such as government officials, journalists and numerous other dissidents), such as those who criticise the President’s leadership, are arrested, not charged with crimes, but held in incommunicado detention. Eritrea is one of the worst abusers of human rights in Africa. It has no functioning legislature, no opposition parties and no independent media. Many Eritreans report torture in detention. There is no rule of law and there is restriction on movement within many parts of Eritrea – for both foreigners and Eritreans. It was noted that the International Crisis Group has described Eritrea as a “prison state” for its flagrant disregard of the law and its willingness to detain anyone suspected of opposing the resume, usually without charge, for indefinite periods. Torture, arbitrary detentions, enforced disappearances and political arrests are common, prison conditions are harsh, and outside monitors such as the ICRC are denied access to detainees. In some facilities, inmates are held in metal shipping containers or underground cells in extreme temperatures. Prisoners are often denied medical treatment and many suffer poor physical health due to the overcrowded and unsanitary conditions in which they are held. The government maintains a network of secret detention facilities. Freedom of movement both inside and outside the country is tightly controlled, and Eritreans over the age of 50 years are rarely given permission to go abroad.

    ·     Articles on health care note that Eritrea faces many health challenges.

    The delegate’s interview, correspondence, and decision record

14. The delegate carried out an interview with the applicant [in] December 2016; the Tribunal has listened to a recording of the interview. The interview showed respect and substantial patience exhibited by the delegate, in trying to direct the applicant’s mind to her questions, and in trying to decipher his answers. The delegate repeated questions on numerous occasions and often did not receive responsive answers. The delegate imposed breaks, noted that the applicant did not appear to understand some questions as he was not responding to them, and that he was getting agitated. Sometimes he appeared to be rambling, talking about a topic raised, but in an unclear and sometimes nonsensical manner. It would sometimes appear that he understood a question, because he would mention a relevant fact in his answer, but the rest of his answer could be nonsensical. He would also interrupt the delegate and not let her finish her questions, and he would also mumble incoherently.  On numerous occasions it was clear that he was becoming agitated, and he would continuously stand up (the delegate would ask him to sit down).

15. During the interview, the applicant talked about where he lived, and said that he had written Red Cross messages home and had received a response; he was aware that his sibling was now still alive and living in [City 1 of Eritrea]. He confirmed that he had no identification documents. When asked if he had ever considered contacting the Eritrean authorities to get a passport, he said that he doesn’t want to contact the Eritrean authorities, he doesn’t trust them, he had been previously arrested and they still suspect him.  

16. When the delegate was asking him details about his past imprisonment in Ethiopia he appeared to become very frustrated, even though her questions seeking clarification made sense, given that it was difficult to understand him because he was not providing a chronological or coherent narrative. He mentioned being imprisoned twice, being charged with “suspicion”, that the authorities suspected that they learned politics from when they had fought with the guerrillas, that after his first imprisonment he was set free by the rebels, he had been helping a man and looking after his gun for him but the applicant was arrested and the man who had the gun made allegations and he will kill the applicant, so the applicant ran away before this could happen. Although he was not able to convey a coherent narrative, the applicant kept repeating about guns and rifles.

17. After the interview the delegate wrote to the applicant noting that there were inconsistencies between his 2016 claims and those he made at interview in 1986.  The applicant responded to the concerns. The Tribunal sought copies of this correspondence, and noted that the delegate was concerned that the applicant had not mentioned in the 1986 interview that he had been gaoled for more than one year for possession of a gun, or that when he was released he was followed by police and for that reason he fled Eritrea. The applicant responded by saying that he did not mention these matters at the first interview out of fear that the interpreter was associated with a terrorist group and he considered that if he mentioned these matters he could be identified to the terrorist group and harmed. The delegate did not accept this.

18. The delegate’s decision record stated that there is no country information to indicate that the applicant would face a real chance persecution on the basis of being a freedom fighter in the EPLF, as the EPLF provisional government is still in power today.

19. Concerning national service, the delegate noted that it is compulsory for men aged 18 to 54 years[4]. The delegate referred to country information from the UK Home Office indicating that persons who left Eritrea  a time which was not during the war of independence, are likely to be perceived as having avoided or deserted from National Service and to be at risk of persecution on the grounds of imputed political opinion. The delegate then found the converse, namely that because the applicant did leave during the war of independence, he would not likely be perceived as someone who avoided or deserted from national service.  The delegate also noted that the British Embassy in Asmara in 2010indicated that people who are disabled or medically unfit for military/national service can be and have been exempted from military/national service. They would need to be medically certified by a doctor at a military base as disabled or medically unfit.  The basis for this is Article 15 of the National Service Proclamation, which indicates that people can be exempted if they have “psychological derangement”.   The delegate noted that a Human Rights Watch report of 2009 indicated that psychological derangement is a ground of exemption which appears to be a popular way to try to evade service[5]. Although the delegate noted that DFAT assesses that those who have not completed national service may face a risk of punishment on return, which may include imprisonment or being reassigned to duty[6],the  delegate was not satisfied that the applicant, in his circumstances, faces a real chance of persecution as a returnee to Eritrea.

    [4] DFAT Report.

    [5] Delegate’s decision record, page 4

    [6] DFAT Report

1. While the delegate acknowledged that the applicant has schizophrenia and that he takes medication for this, and that mental health services in Eritrea are lacking, and would be of significantly lower standard compared to the standard of care in Australia[7],  it was considered that this was due to the general standard of the country’s health system which could result in harm, which would not meet the definition of significant harm,  The delegate was not satisfied that the Eritrean government would arbitrarily refuse him medical treatment.

   [7] Delegate’s decision record, page 6.

   The Tribunal

2. The applicant provided to the Tribunal an application for review, and a copy of the delegate’s decision.

3. The applicant appeared before the Tribunal by way of video link on 19 October 2017 from the detention [centre] to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the English and Tigrinya languages.  The Tribunal asked the applicant numerous questions about his claims. The applicant told the Tribunal that he had not taken his medication. It appeared to the Tribunal that he found it difficult to sit down, that he found it difficult to understand the questions and to actually respond to the question. It took a lot of patient questioning to sometimes achieve a coherent response to a question. Generally, the Tribunal considered that the applicant provided fairly consistent information to that provided at various stages in Australia.

4. The Tribunal noted at hearing that it would require more information than it had. Later the applicant and the Department provided further information. The applicant provided the Red Cross letter dated [in] June 2017 which noted that they had been able to locate his family members; the Tribunal accepts this.

   Relevant information obtained from Departmental files, medical records, and justice records by the Tribunal

5. As noted above, there were previous considerations by the Department in relation to the cancellation of the applicant’s visa:

   ·     A report dated [in] April 2008 from [a correctional facility centre] [8] noted that due to his criminal history he had previously been considered for s.55 deportation but instead was given an oral warning [in] November 1992[9].

   ·     A s.501 cancellation commenced [in] July 2002 ([File number]).

   ·     A Notice of Intention to cancel his visa had been sent to the applicant in 2007 (on the basis of his criminal record); at this time it was noted that there were possible mental health issues: Reference was made to a letter provided to the court from [a local health district] as early as 1997 indicated that the applicant was suffering from schizophrenia which was complicated by his alcoholism[10]. His mental health situation was taken into account and it was decided instead that he should be warned about his conduct ([May] 2008)[11]. 

   ·     As part of consideration as to whether to cancel in 2012, it was noted that the applicant had already been warned in 1992 and again in 2008. However he then committed a further offence in 2011 resulting in a 2012 conviction. When considering country conditions in Eritrea and his mental health problems, a warning was again given in June 2012[12]. The applicant received a Notice of Decision not to cancel visa under s.501 dated [in] June 2012[13]. The applicant acknowledged  receipt of this decision ( [June] 2012) and of the warning that he can again be considered for refusal / cancellation if further relevant information comes to the attention of the Department, at which time his past history can still be considered.

   [8] [File number]

   [9] [File number]

   [10] [File number], 166

   [11] [File number]

   [12] [File number]

   [13] [File number]

6. Reports from his encounters with the criminal justice system also provide relevant information about his background, medical problems and history:

   ·     Reference was made in a sentencing transcript dated [in] March 1992[14] to three [reports] dated [in] June 1991, [November] 1991 and [March] 1992 and that in the judge’s view, the applicant had had an “extremely deprived background”, as well as suggestions that he needed drug and alcohol counselling.

   [14] ([File number])

   ·     A Pre-sentence report from  [November] 1996 indicates that the applicant has spent a lot of time homeless and sleeping in parks, that he spent his day drinking alcohol[15]. It indicated that since1990 he had been having intermittent contact with the [one of the local health services] and has a diagnosis of chronic schizophrenia for which he receives medication and ongoing assessment however, probably due to his alcoholism; he is erratic in the taking of his medication.  A [local health district] report dated [in] February 1997 emphasises the disabling nature of the applicant’s alcoholism; meaning that he has not been able to access the full benefit of community services[16].

   [15] ([File number])

   [16] ([File number])

   ·     The report dated [in] April 2008 from the [correctional facility][17] noted that the applicant said he had begun hearing voices shortly after coming to Australia. He described his voices as persistent and repetitive, causing significant frustration and nervousness as he could not “make them stop”. In his quest to eradicate the voices, he would turn on the radio loudly, and when this failed he would resort to excessive consumption of alcohol. He reported a sense of well-being on his current medication, conceding it had eliminated the voices. Although his sense of well-being prompted him to resolve to remain compliant with antipsychotic psychotic medication in the community, his inability to do so is “well-documented”. The report indicates that the applicant has acknowledged his non-compliance with his antipsychotic medication. It also notes that he has no prospect of employment, and that given his documented mental health issues, he may struggle with securing and maintaining employment in the community. In the past he had been unemployed and in receipt of disability pension. He impresses of having limited insight into his mental health issues, particularly the need to remain compliant with antipsychotic medication in the community.

   [17] [File number]

   ·     The above-referred to [the correctional facility] report attaches a Psychiatric Report by [a] Consultant Psychiatrist dated [in] February 2006[18], which provides a diagnosis of chronic schizophrenia (with residual symptoms) as well as alcohol use disorder, antisocial personality traits. The applicant demonstrated a mild degree of formal thought disorder, with loosening of associations. His thought content revealed delusions of reference and persecutory ideations. It reported a history from the applicant that:  he has been hearing voices for about 10 years, but that when he got drunk he would completely forget about the voices. The voices are an echo of what he says, as if he could hear his own thoughts being spoken aloud inside his head. He said he has always has paranoia, which he said meant that he is worried people may hear the voices. He believes that people hate him and laugh at him. He has the sense of being talked about when watching television and of people on the show speaking his own thoughts. He has heard things about himself on the radio.

   [18] [File number]

   ·     A transcript of sentencing of [a judge] [in] December 2007[19] refers to a report from [a] psychiatrist, detailing the applicant’s background in Australia and Africa. [The psychiatrist] concludes that he has a long-term addiction to alcohol as well is a 10 year history of chronic paranoid schizophrenia. The management of this medical illness has been made more difficult by his alcohol consumption.

   ·     A Justice health medical report from [March] 2009 relating to the issue of parole provides information the applicant gave in February 2009, including that he was born in [City 1], he grew up in Eritrea, he ran away from home when he was young, he joined guerrilla fighters for 13 months, escaped to Ethiopia, and was arrested for possessing a gun. He served another two-year sentence and then returned to the guerrillas and fought for another three months before he escaped to [Country 1]; then to [Country 2] as a stowaway and then Australia. He left work 21 years ago (approximately 1988) and has been on a disability support pension because he “hears voices (auditory hallucinations)”. The diagnosis was provided of psychotic disorder, possible chronic alcohol hallucinosis or possible schizophrenia, alcohol dependent disorder, cannabis abuse, possible antisocial traits. It was noted that because of his extensive and chronic history of alcohol dependence, he may have some mild cognitive deficits. His main difficulty appears to be his lack of control of his alcohol consumption and his non-compliance with his psychiatric medication.

   ·     A transcript from the Local Court dated [in] March 2012[20] ([File number]) refers to his solicitor telling the court that he has a long-standing history of use of cannabis and alcohol.

   ·     A Justice Health Medical Report from [May] 2014[21] states that he is diagnosed as suffering from chronic schizophrenic disorder with the differential diagnosis of chronic alcohol hallucinosis, as well as alcohol dependent disorder and personality disorder. He was difficult to interview because he was circumstantial and over-inclusive. He refused to be focused on the topic and was argumentative during the interview. At times he was aggressive. He had poor frustration tolerance. He tended to ruminate in a circumstantial manner and talked to himself. He was blunted in his eye effect and had poverty of ideas. At times his mood was labile. He spoke in a rapid voice but there was no formal thought disorder. He reported that he hears his own thoughts but denied any true auditory hallucinations. He denied any delusions but then stated that when he watches TV, they sometimes laugh at him as if a thought satellite. His insight was poor with regard to his mental illness.

   ·     A GP review on [in] September 2015[22] indicates that his speech is somewhat discursive and that he appears dishevelled.

   ·     Some medical reports provided by the applicant included a report from gastroenterologist dated [in] April 2016 noting that the applicant’s diagnosis includes chronic schizophrenia, syphilis, hypercholesterolemia, pre-diabetes, and constipation, a radiology report dated [in] June 2016 indicating that he has osteoarthritis in his knee. He has numerous medications that his taking.

   ·     Medical notes from the GP review [in] September 2016[23], noted that the diagnosis of schizophrenia is decades-old. It was also stated (the source of this opinion was not provided) that his symptoms may have been present in childhood/adolescence in Eritrea.

   ·     Medical notes from a  [February] 2017 Psychiatry Review[24] indicate that the applicant told the psychiatrist that he is paranoid that people talk about him behind his back; when he is not busy “voices” comment on what he is doing and thinking; he also hears laughing, and “they read my mind” and there are “voices from outer”. He no longer reads because the voices read for him. Further, what he says is reflected in what he sees on TV.

   ·     Medical notes from [an] April 2017 Psychiatry Review[25] refer to poor compliance with his medications (for example missing five or six of his morning medications in a week because he sleeps in, but saying that he does take his evening medication). It is stated that he has chronic schizophrenia, which has been complicated by “Etoh” [alcohol], violence, self-harm, homelessness and probably failed compliance with medications. It notes that his chronic schizophrenia is well controlled with quetiapine, 1,200mg daily, but that he has deteriorated clinically in the context of missing some of his quetiapine, so it was considered that he should be put into a support compound. The applicant had reported that also that he always feels that the TV is talking about him and reading his mind, and he speaks loudly so that he can hear his voice over the voices of the TV.  The Psychiatrist noted that he speaks quickly, loudly, and he is difficult to interrupt. He is over familiar, touches the psychiatrist on the arm and gives him high-fives when assuring the psychiatrist that he is not suicidal. He is thought disordered, for example when asked if he is suicidal, he says he is not because he hates seeing people fighting.  It was stated that he was legally competent to advise about what he wants.

   ·     Medical records from [April] 2017[26] indicate that when he was presenting for annual diabetes check, he was accompanied by a mental health nurse, and he was very agitated such that a proper check was not able to be done because of his agitation. It was stated that he was legally competent to advise about what he wants.

   [19] [File number]

   [20] [File number]

   [21] Provided by the applicant to the Tribunal

   [22] Provided by the applicant to the Tribunal

   [23] Provided by the applicant to the Tribunal

   [24] Provided by the applicant to the Tribunal

   [25] Provided by the applicant to the Tribunal

   [26] Provided by the applicant to the Tribunal

   Earlier evidence in support of initial recognition as a refugee

7. As noted above, the Tribunal had requested the Departmental file in relation to the initial recognition of the applicant as a refugee in 1986.  This was not however provided.  The Tribunal did manage to obtain the 1986 transcript of interview with the applicant (which had been referred to in the current delegate’s decision record). The Tribunal considers that in this interview, although there are some aspects of his evidence which are inconsistent with his current claims, there are key parts of his claims which have remained consistent today. In that interview, he claimed that if he returned to (then) Ethiopia, he would be shot on the spot. He had left Eritrea illegally in about 1982. He said he had never completed military service for his home country and this was part of the reason why he fled. He had wanted to leave the country however he had then encountered and joined the EPLF, and he remained with them for one year and five months. He was an ordinary fighter, and when requested to provide details of his involvement with the EPLF, he appeared able to do so. He said he left the EPLF because of internal fighting, he was frustrated and thought he should go to [Country 1]. When he left the EPLF, he did not return home, he went straight to [Country 1] (this however is inconsistent with evidence in the current proceedings that he had been arrested after leaving EPLF and had been twice imprisoned).

8. Further relevant evidence is referred to below.

   FINDINGS AND REASONS

   Country of reference, circumstances when the applicant left

9. The applicant does not have any records indicating his nationality or citizenship, and arrived in Australia as a stowaway. Departmental records confirm that he arrived in Australia in 1986. The applicant was accepted, when he came to Australia in 1986, as having been born in [City 1], Eritrea (which at the time was under the control of Ethiopia). The Department again, in the current protection proceedings, have accepted the applicant’s identity as Eritrean. It was noted in an earlier Departmental file that the applicant had listed his country of birth in earlier documents as either Eritrea or Ethiopia, but that h has however consistently maintained that he was born in [City 1] in [year], which is presently in Eritrea, but in [year] it was under the control of Ethiopia, hence his reference to Ethiopia[27]. 

   [27] [File number]

10. The Tribunal has listened to the delegate’s interview where the applicant was asked a number of questions about his place of origin (language, localities, geography) and also accepts that he was born in [City 1], which is now considered a part of Eritrea, which became an independent country in 1991. The applicant claimed in his application form that both of his parents were Eritrean citizens. The Tribunal notes that, after the hearing, the applicant provided a copy of part of his letter to the Department dated [in] February 2017 requesting that his visa not be cancelled. In that letter he stated that his mother is Eritrean but his father is Ethiopian. Although this is inconsistent with his protection visa application forms, the Tribunal is prepared to accept that the applicant could be referring to ethnicity. He has consistently stated that his mother is Eritrean and the Tribunal notes that the Constitution provides, at Article 3(1), that any person born of an Eritrean father or mother is an Eritrean by birth[28].

    [28] ‘The Constitution of Eritrea’, Ratified by the Constituent Assembly, 23 May 1997, CISFCE36B0479 

11. The Tribunal accepts that the applicant has been away from his home country since before 1986, and that his place of birth in [year] ([City 1], then in Ethiopia) is now located in Eritrea[29]. The Tribunal accepts that the applicant considers himself to be ethnically and actually Eritrean.

    [29] See Annexure B, DFAT Report, Recent History.

    The applicant’s return and the investigation of his past and his lack of national service

12. The Tribunal accepts that the applicant left Eritrea illegally, in the 1980’s, during the 30 years’ war of independence and that he did not complete military service before leaving (also accepted by the primary decision-maker).

13. The Tribunal has considered the situation for the applicant upon his arrival at the airport and thereafter, in particular the investigation of the applicant’s past and the consequences for him of such investigation. The Tribunal accepts that the applicant has never had, and does not have, any travel documents issued by the Eritrean/ Ethiopian authorities. The Tribunal considers that, when considering the country information, there is a real chance that the applicant will attract adverse attention from the authorities upon his return, given his particular circumstances.  The Tribunal considers it reasonable that, having left Eritrea unlawfully, been out of the country for 30 years, and being forcibly removed from Australia to Eritrea, the authorities would ask the applicant about his whereabouts and activities for thirty years. The USDOS indicates that those persons known to have broken laws abroad, or to have been declared ineligible for political asylum by other governments, have had their visas and visa requests to enter the country considered with greater scrutiny. The Tribunal notes that the Australian asylum process is a confidential one which would not be conveyed to the Eritrean authorities. If the applicant however is asked about whether he has criminal convictions or whether he has claimed asylum in Australia, the Tribunal cannot discount that he will respond truthfully. 

14. The Tribunal notes the references in the UK Home Office report to returnees[30], and the pronouncements of the Eritrean Government that returnees are welcome. The discussion seems to relate more to voluntary returnees who had left illegally recently, now have status elsewhere, and are returning for the summer to visit family. The applicant’s situation is different. The Tribunal notes that DFAT assesses that if a person left Eritrea illegally then this factor alone does not necessarily mean that they face a “real risk of serious harm”. This is not however the only relevant factor for this applicant, and the Tribunal does not consider this to be an unqualified statement. The Tribunal also notes that the USDOS report refers to persons who left without exit visas being denied re-entry.[31]

    [30] Refer to Annexure B

    [31] Refer to Annexure B

15. The country information from numerous sources including DFAT[32] suggests a very significant focus by the authorities upon national service. The Tribunal also notes DFAT’s assessment that men are rarely able to avoid conscription. When considering the issue of returnees, DFAT specifically states that those who left without having completed national service may face a risk of punishment on return, which may include imprisonment or being re-assigned to duty. The DFAT information[33] about obtaining a passport indicates that prior to the applicant’s return, in order for the applicant to be issued with a passport, the authorities consider it a relevant factor to investigate whether or not he has undertaken his military service. Thus, they will be aware even before his arrival that he has not done his military service.  The report from the European Asylum Support office from 2015 notes that it was not clear whether failure to do national service would be considered as an offence, with the suggestion being that they will be punished if this is an offence[34].

    [32] Refer to Annexure B

    [33] Refer to Annexure B

    [34] Refer to Annexure B

1. The DFAT Report indicates that the extreme conditions of national service has led to large migration outflows from Eritrea, and it notes that the government actively searches for draft evaders[35]. The report also mentions the government’s desire and interest to maintain tight control over the whereabouts of its citizens. It also notes that the authorities are concerned about perceived critics, and included in this category are individuals who have been suspected of evading national service and militia duties. It is noted that arbitrary arrest and disappearance are common in relation to persons who are suspect.  The DFAT Report (and the information provided by the applicant) indicates the significant repression by the authorities (on the grounds of a continuing fear of Ethiopia); there is no official opposition allowed, and any perceived criticism or blame of the authorities could lead to official interest and sanction.  

   [35] Refer to Annexure B, paragraph 3.17 DFAT Report.

2. In light of the prevailing country conditions, the Tribunal has considered the applicant’s particular circumstances. The Tribunal has found that there is a real chance that the applicant, who fled the country illegally during the conflict, having not returned for 30 years, being of the age for military service (currently [age] years), will be of interest to, and questioned by, the authorities in relation to his past history in Ethiopia/Eritrea, and his past allegiances. The Tribunal has considered how the applicant may respond, and be perceived, by the Eritrean authorities when asked questions about his past.

3. The Tribunal has not been provided with an updated psychiatric report despite its request; however it considers that there is sufficient information from the current medical notes provided as well as the psychiatric/ medical reports from the past, as well as the applicant’s responses to questions from the delegate and the Tribunal, to assess how the applicant will respond when being asked questions by the Eritrean authorities. The Tribunal is prepared to accept that the applicant has chronic schizophrenia as well as physical illnesses. It notes that there are reports as early as 1990 indicating the applicant’s disabling alcoholism, his failure/ inability to comply with antipsychotic/schizophrenic medication, some limited insight into his mental health issues, particularly the need to remain compliant with antipsychotic medication. References to loosening of associations, delusions of reference and persecutory ideations, speaking quickly and being difficult to interrupt, and suffering from thought disorder appear to be valid explanations for his manner when discussing his past history with the delegate and the Tribunal.  The Tribunal also notes that he becomes frustrated when being asked questions, stands up and refuses to sit down, and becomes argumentative.

4. The Tribunal has real concerns with the applicant’s ability to respond to questions from immigration/other officers in authority in Eritrea, and considers that there is a real chance that his manner of responding and ability to respond could lead to such officers misinterpreting his condition as defiance, rudeness, disrespectful of their authority. The applicant appears to understand a question, and sometimes gives responsive answers. This however could lead one to think that he understands all questions, and when his responses are non-responsive, the Tribunal considers this could be interpreted as defying the questioner.

5. A further relevant factor is what the applicant may say to the authorities. While noting that his claim that he fought on behalf of the liberation forces, who subsequently took control of the country, should not be seen as disadvantageous, the Tribunal considers that there is a real chance that the applicant will say to the authorities, as he has to the Tribunal and the delegate in recent hearings/interviews, that before he left the country, he had been trained with weapons, engaged in fighting with EPLF during the war of independence, imprisoned twice including for  gun possession, followed by the police, that he had been involved in an altercation with a person who is now a government figure, that he left illegally, that he has committed offences in Australia, and that he claimed asylum in Australia.

6. The Tribunal considers that it may not even be important whether or not the claim that he was imprisoned twice, including for gun possession, and being followed by the police, was true (noting the delegate did not accept certain events on the grounds that the applicant did not disclose them in his original interview when seeking asylum). It considers that there is a real chance that the applicant may volunteer such information because he believes it to be true, along with information about his claim for asylum in Australia, and his criminal record in Australia. The Tribunal considers that there is a real chance that this will lead to the applicant being imputed with adverse political past, regardless of his actual background.  

7. However, the Tribunal does note that in one of the 2009 medical reports, the applicant did claim that he had been arrested for possessing a gun. This claim, made at a time when he did not need to make such a claim to the immigration authorities, suggests that either it was true, or the applicant believed it was true, as far back as 2009. 

8. A further factor is the applicant’s compliance issues with his medication for his mental health. The Tribunal considers it reasonable to assume that the questioning by the authorities would lead to worse results for the applicant if he did not take his medication; and this is a problem which appears to have existed even when he has been in custody /detention in Australia.

9. The Tribunal considers that all of the above, including his avoidance to date of military service, his absence for thirty years and then forcible return, his manner of responding to question, and the real chance that he will volunteer that in the past he has been involved in gun possession, fighting, he has been imprisoned, has come to the adverse attention of a current authority figure in the government,  as well as volunteering that he has claimed asylum and committed offences in Australia, will lead to the applicant being perceived as a person of adverse interest to the government and thus imputed with an adverse political opinion. 

10. The Tribunal notes that DFAT assesses that officials in Eritrea commonly use a variety of forms of ill-treatment of detainees during interrogations, or as a form of punishment, which may amount to torture. DFAT further assesses that those committing the torture are likely to enjoy general impunity. The Tribunal considers that there is a real chance that the applicant will face serious harm in the form of torture or significant mistreatment while being investigated in relation to his past in both Eritrea/Ethiopia and in Australia. The Tribunal finds that the essential and significant reason for the persecution is his imputed political opinion, and that the persecution involves systematic and discriminatory conduct. As the real chance of persecution is from the state upon his arrival or shortly thereafter in the country, the Tribunal is not satisfied that the applicant can seek effective protection. Further, the Tribunal is satisfied that the real chance of persecution applies to the whole country.

11. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    DECISION

12. The Tribunal remits the matter for reconsideration and directs that the applicant is a refugee within the meaning of subsection s.5H(1) of the Act.

    Christine Cody
    Member

    
    

    ANNEXURE A - CRITERIA FOR A PROTECTION VISA

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

14. 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.

15. 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 themself 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).

16. 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 below.  

17. 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 below.

    Mandatory considerations

18. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    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.

    …

    5HMeaning 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:

    (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.

    (2)Subsection (1) does not apply if the Minister has serious reasons for considering that:

    (a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

    (b)the person committed a serious non‑political crime before entering Australia; or

    (c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.

    5J Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    (b)   significant physical harassment of the person;

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

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

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

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

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

    5K  Membership of a particular social group consisting of family

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

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

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

    (i)the first person has ever experienced; or

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

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

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

    5L  Membership of a particular social group other than family

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

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

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

    (c)   any of the following apply:

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

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

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

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

    5LA  Effective protection measures

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

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

    (i)the relevant State; or

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

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

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

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

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

    ..

    36Protection visas – criteria provided for by this Act

    …

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

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

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

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

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

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

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

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

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

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

    …

    ANNEXURE B – COUNTRY INFORMATION

    EXTRACTS FROM DFAT REPORT 8 FEBRUARY 2017

    RECENT HISTORY

    2.1 Present day Eritrea is a colonial creation. While the Eritrean highlands were part of the Abyssinian Empire for many centuries, the coastal lowlands experienced a variety of influences, mainly from Arabic-speaking countries and the Ottoman Empire. Italy formalised Eritrea’s borders in the 1880s, declared it a colony in 1890 and remained the colonial power until its defeat in the Second World War. A post-war international debate followed over whether Eritrea should become an independent state, or be incorporated into neighbouring Ethiopia. A compromise was reached, and it was decided that Eritrea should become an autonomous part of a federation with Ethiopia, an arrangement formalised in September 1952. However, Eritrea’s autonomy was gradually limited by Ethiopia and abolished entirely in November 1962, when Eritrea was downgraded to the status of an Ethiopian province.

    2.2 A number of Eritrean groups responded by commenced an armed struggle for independence, which lasted 30 years and cost the lives of approximately 65,000 Eritrean soldiers and 50,000 civilians. Over the course of the conflict a Marxist-inspired group, the Eritrean People’s Liberation Front (EPLF), gradually sidelined its rivals. The EPLF captured the Eritrean capital Asmara in May 1991, ending the conflict. 99.8 per cent of Eritreans voted for independence in a UN-supervised referendum in 1993, and Eritrea became an independent state later in the same year. The EPLF transformed into a political party, the People’s Front for Democracy and Justice (PFDJ), led by Isaias Afwerki, who became the country’s first (and, to date, only) President.

    2.3 The post-independence relationship with Ethiopia began well. However, tensions over the lack of an officially demarcated border led to a renewed outbreak of fighting from May 1998 to June 2000 that killed between 70,000-100,000 Eritreans and Ethiopians. Although a UN Commission declared the demarcation of the common border in April 2002, Ethiopia refused to recognise it and continues to occupy territory officially granted to Eritrea. Eritrea has long sought international support for its calls for Ethiopia to implement the Commission’s decision. There have been no meaningful bilateral attempts to resolve the dispute, and small-scale skirmishes continue to occur regularly along the border.

    2.4 The aftermath of the border war saw an increasingly autocratic style of government develop in Eritrea, with the government cracking down heavily on any form of internal dissent or criticism. Eritrea’s relationship with the international community also deteriorated considerably, with Eritrea expelling North American and European peacekeepers in 2005 and a number of UN staff in 2006. In 2009, the UN imposed sanctions on Eritrea for its alleged support for Islamist insurgents in Somalia, a charge Eritrea has denied (see ‘Sanctions’). Most international NGOs departed Eritrea from 2005-11, with the few remaining (primarily UN agencies) subject to tight restrictions on their movements and activities….

    2.6 ….Large numbers of Eritreans have left the country in recent years, and it is estimated that around 5,000 people currently leave the country every month. The United Nations High Commissioner for Refugees (UNHCR) reported at the end of 2014 that 416,857 Eritreans had lodged asylum claims or were registered as refugees outside Eritrea.

    Health
    2.17 According to the World Health Organisation (WHO), there have been significant improvements in access to medical care since Eritrea gained independence…..
    Free treatment is available for chronic and infectious diseases, including tuberculosis, HIV/AIDS and malaria. However, there is still a severe shortage of doctors, medical personnel, equipment and medication, particularly in outlying areas, and some complex procedures are not available in Eritrea.

    Government/ authorities/ national service

    2.24 The executive body of the transitional government is the ministerial cabinet, led by the President. The President appoints ministers, most of whom are former EPLF fighters…
    The National Assembly has not been functional since 1998 and has not met at all since 2002. Many members of parliament have left the country…

    2.29 Eritrean authorities maintain tight internal control of the country….

    National Service Conscripts
    3.15 The government requires all physically- and mentally-capable men and women between the ages of 18-70 to perform a full-time national service obligation, which may include a military, development or civil service component. Eritreans are allocated to their national service role based on examination results rather than by choice. All Eritreans are required to undergo some military training, regardless of their national service role. DFAT understands that those serving as priests or imams in recognised religions may be exempt from national service obligations. 3.17 Men are generally unable to obtain an exemption from national service; however, pregnant women and mothers are reportedly not required to serve. Article 119 of the 2015 Penal Code (Interference with Military Service) provides for terms of imprisonment of one to three years for anyone evading or attempting to evade compulsory military service, or for assisting another to do so. Should the act take place during a time of emergency, general mobilisation or war, the term of imprisonment is between seven to ten years. The UN Commission of Inquiry reported in 2015 that authorities had regularly conducted mass and indiscriminate round-ups to seize draft evaders and deserters, which had often involved excessive use of force, occasionally leading to death, and the forced entrance into and search of private homes. The US State Department’s 2015 Human Rights Report corroborated this allegation.

    3.18 Conditions for national service conscripts vary considerably. While those involved in civil service and development activities face conditions and treatment comparable with the remainder of the population, it has been widely reported by international human rights organisations that conditions and treatment during military training and service are very harsh. The UN Commission of Inquiry reported in 2015 (corroborated by the US State Department) that conscripts were systematically subjected to intentional punishment and ill-treatment aimed at inflicting severe pain, which in many cases constituted torture (see ‘Torture’).

    3.19 It has been widely reported that many conscripts have been compelled to serve indefinitely. The UN Commission of Inquiry reported in 2015 that it had interviewed individuals who had served in the army for 17 years before deciding to flee Eritrea. Conscripts have also had limited and arbitrarily granted leave allowances which have in many cases severely disrupted their family lives. Conscripts have also reportedly been paid salaries insufficient to cover their families’ basic needs. The government announced in early 2016 that it would considerably increase salaries for those on national service. DFAT understands that this change has been implemented, but its impact has been minimal due to withdrawal restrictions on personal bank accounts.

    3.20 In its response to recommendations made in the Universal Periodic Review’s Working Group in August 2014, Eritrea rejected calls from a large number of countries to take measures to either abolish or modify its national service programs, end the indefinite nature of the service, end compulsory military training, and establish provisions for conscientious objections to military service. The Minister for Information confirmed in February 2016 that there were no plans to limit military service programs, citing the ongoing threat posed by Ethiopia.

    3.21 The UN Commission of Inquiry concluded in both its 2015 and 2016 reports that the conditions of service faced by national service conscripts in Eritrea amounted to enslavement. International human rights organisations, including Amnesty International and Human Rights Watch, have concurred with this view. The government has vehemently denied this claim, stating in June 2016 that the ongoing state of war with Ethiopia had required the prolonging of national service in some cases; that large numbers of conscripts had nevertheless been demobilised, particularly women; that over 90 per cent of national service conscripts served in civilian projects, mainly as teachers and health personnel; and that an improved economic situation had made salary raises possible.

    3.22 DFAT assesses that almost all Eritreans are compelled to undergo some form of national service, including military service. While conditions for national service conscripts vary considerably, those whose service is primarily military-focused are most likely to be subjected to harsh conditions and treatment, which may include physical punishment. DFAT assesses that the lack of choice by which conscripts are allocated to national service fields, the compulsion to perform military service and lack of access to alternative forms of service for conscientious objectors, the possibility of indefinite service, the limited and arbitrarily granted leave allowances, and insufficient salaries, all represent a form of discrimination, and are a major contributing factor to the large migration outflows from Eritrea.

    Human rights organisations/ civil society

    3.25 DFAT assesses that it is not currently possible to participate in a civil society organisation in Eritrea other than one of the three mass organisations. Any Eritrean attempting to establish a new organisation or to run civil society activities independently of the three mass organisations would face a high risk of arrest and imprisonment.

    Critics of the Government

    3.26 The PFDJ is the only legal political party in Eritrea and operates at all levels of the administration, allowing the party to control administrative structures throughout the entire country. There are no other legally approved opposition groups or other organisations independent of the PFDJ. …. While there is virtually no organised underground opposition within Eritrea, there are several ethnic rebel groups based in Ethiopia and diaspora civil society organisations that focus primarily on promoting human rights. Although political opposition to the PFDJ is almost entirely based within the diaspora, including a significant presence in Ethiopia, there is no
    ‘Government in Exile’ or alternative administration that commands popular support among diaspora Eritreans.
    3.27 ….  Since 2001, public and private criticism of the government has been repressed, with large numbers of Eritreans arrested and detained. While the exact number of political prisoners is unknown, in 2013 the UN High Commissioner for Human Rights reported that there were between 5,000 and 10,000 political prisoners and prisoners of conscience in Eritrea….

    3.32 DFAT assesses that that anyone who attempted to openly oppose the government politically while in Eritrea, particularly through participating in an organised protest or engaging in other types of political activity (including online), would face a high risk of official discrimination, including possible arrest and imprisonment. DFAT further assesses that while Eritreans can express concern about the migration crisis and/or difficult economic situation, they would be unlikely to be able to blame either on the government or on the president without attracting official interest and sanction.

    Extra-Judicial Killings
    4.1 In its June 2015 report, the UN Commission of Inquiry found that extrajudicial executions and arbitrary killings had been widely perpetrated in Eritrea since independence. The report found that Eritrean authorities have carried out extrajudicial executions, publicly or secretly, to punish perceived critics, as well as suspected smugglers and ordinary citizens for arbitrary reasons. The UN Commission of Inquiry report noted that some of the extrajudicial killings and executions reported may have resulted from personal initiatives or excessive use of force by officials, and that a culture of impunity existed. The UN Commission of Inquiry expressed concern that the general climate of impunity thus created was conducive to the continued practice of arbitrary and extrajudicial killings in Eritrea. Other international commentators, including the US State Department, Freedom House, and Amnesty International, have supported the UN Commission of Inquiry’s findings….

    4.4 The UN Commission of Inquiry reported in 2015 that scores of people had been subjected to enforced disappearance since independence in 1991, for known and unknown reasons. The report found that information on the whereabouts of and/or charges against those detained was rarely provided officially. Detainees were usually not brought before a court and thus placed outside the protection of the law. Prison authorities generally informed relatives enquiring after detainees that they had no information on the person arrested, and warned them to cease their enquiries or risk facing a similar fate. In certain cases, relatives may subsequently receive unofficial information from released inmates or from bribed guards, but in most cases they were prevented from visiting their detained relatives. The UN Commission of Inquiry report concluded that enforced disappearance was a widespread and systematically employed practice in Eritrea.
    4.5 Other international commentators have supported the UN Commission of Inquiry’s findings. The US State Department reported that an unknown number of persons disappeared during 2015, and were believed to be in government detention or to have died in custody. Disappeared persons included those detained for political or religious beliefs, journalists, individuals suspected of evading national service and militia duties, and persons with no known charge against them. Freedom House reported that arbitrary arrest and disappearances were common...

    4.13 DFAT assesses that officials in Eritrea commonly use a variety of forms of ill-treatment of detainees during interrogations, or as a form of punishment, which may amount to torture. Groups at a high risk of tortured may include political prisoners, practitioners of unauthorised religions, and deserters from national service. DFAT further assesses that those committing the torture are likely to enjoy general impunity.

    Returnees

    5.30 DFAT assesses that the act of leaving Eritrea illegally is in itself not likely to put a returnee at risk of serious harm. The sheer numbers of diaspora members returning to visit Eritrea, including many likely to have left illegally and/or been granted asylum abroad, demonstrates a general confidence among this group that they will be not subjected to ill-treatment while in Eritrea. DFAT assesses that those without having completed national service may face a risk of punishment on return, which may include imprisonment or being re-assigned to duty.
    Passports
    5.32 The Department of Immigration and Nationality Passports issues passports. Since May 2010, machine-readable (but not biometric) passports have been issued, initially with two years’ validity but with five years’ validity since 2011. Passports reportedly cost the equivalent of approximately AUD265. Since the introduction of new passports in 2010, all passports have been issued directly from Asmara. Applicants for Eritrean passports must submit a covering letter from the local administration, their identity card (or their parents’ cards in the case of children), and a completed application form at the relevant branch office. A supporting letter from their employer or proof they have completed national service must also be submitted. Passports are reportedly not issued to those engaged in national service. Those applying for a passport at an Eritrean diplomatic mission must provide an identity card, application form and proof that national service has been completed. Payment of the RRT is also usually required. According to EASO’s May 2015 report, deserters and draft evaders may reportedly be issued passports if certain conditions are met, such as the signing of the letter of repentance.

    INTERNAL RELOCATION

    5.20 The government maintains tight control over movement within Eritrea, both for citizens and foreign nationals. According to the US State Department’s 2015 Human Rights Report, citizens are required to notify authorities when they change residence. When travelling within Eritrea, particularly in remote areas or near borders, citizens are required to provide justification for travel to authorities. DFAT assesses internal relocation would not be a realistic option within Eritrea for those people at risk of official discrimination.

    Extracts from other reports

    USDOS - ‘Country Report on Human Rights Practices 2016 – Eritrea’, US Department of State, 3 March 2017, Section 2d, OGD95BE926914

    According to the US Department of State’s report on human rights practices in Eritrea in 2016:
    There were reports of citizens who left the country without exit visas being denied re-entry. Many other citizens who fled the country remained in self-imposed exile due to their religious and political views and fear they would be conscripted into national service if they returned. Others reported there were no consequences for returning citizens who had residency or citizenship in other countries.
    …

    In general citizens had the right to return, but citizens residing abroad had to show proof they paid the 2 percent tax on foreign earned income to be eligible for some government services and documents, including exit permits, birth or marriage certificates, passport renewals, and real estate transactions. The government enforced this inconsistently. Persons known to have broken laws abroad, contracted serious contagious diseases, or to have been declared ineligible for political asylum by other governments had their visas and visa requests to enter the country considered with greater scrutiny.

    The UK Home Office reported on the treatment of returnees as part of its October 2016 ‘Country Policy and Information Note: Eritrea – National service and illegal exit’, in part stating:
    16.7.1 On 8 April 2015, during a discussion at the Bruno Kreisky Forum for International Dialogue, Presidential Adviser Yemane Gebreab stated that:
    ‘For Eritrea the policy is all the Eritreans that have left the country; even illegally; even those deserted from National Service, from their own units in their military. For us, we welcome them back. They will not be punished. They can come back to the country anytime. They don’t have to come permanently to the country, they can come and visit. In fact, thousands… thousands of them come every summer to visit the country.’
    …

    16.7.3 Immigration officials at a meeting with the UK Home Office’s fact finding mission to Eritrea, 7-20 February 2016 (UK FFM), stated: ‘…thousands of Eritreans, including those who left the country illegally, come back to visit, especially in summer, to see family, etc. In 2014, 1,538 males and 389 females returned to Eritrea. These had left illegally and been away for three years.’: ‘Country Policy and Information Note: Eritrea – National service and illegal exit’, UK Home Office, 25 October 2016, pp.79-80, OGD7C848D87

    In May 2015, EASO reported:

    ‘The Eritrean leadership has stated on several occasions that those returning to the country will not be punished as long as they have not committed any offences but it has not yet been made clear whether desertion, draft evasion or illegal exits are regarded as offences. No amendments have been made to the country’s laws and no other documents have been issued to substantiate these announcements…: ‘EASO Country of Origin Information Report – Eritrea Country Focus’, European Asylum Support Office, 1 May 2015, p.43, CISEC96CF14768