1803772 (Refugee)

1803772 (Refugee) [2021] AATA 5175 (28 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1803772
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Michael Hawkins AM
DATE:28 October 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 28 October 2021 at 10:31am

CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – participation in protests and expressions of opinions in university classes and job training – beatings and expulsion from training – suspected as member of banned opposition group – detained, tortured and warned – study in third country without applying for protection there – little corroborative evidence – applied for protection shortly before tourist visa due to cease – country information and post-hearing submissions – recent deterioration in conditions and current tensions and conflicts – no public political profile and fear of harm on political grounds unfounded – Amharic ethnicity – no harm to family – profile as educated Amhara – test of real risk, not remote – chance extends to all areas and effective protection measures not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(c), (2), (3), 5LA(2)(a), (c), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
Kavun v MIMA [2000] FCA 370
Maningat v MIMA (FCA, Tamberlin J, 30 April 1998)
MIEA v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA [1994] FCA 1105
Subramaniam v MIMA (FCA, Carr J,10 March 1998)
V v MIMA (1999) 92 FCR 355
Zhang v RRT [1997] FCA 423
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 February 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Ethiopia, applied for the visa on 2 October 2015. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s.5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk that he would suffer significant harm.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background:
The applicant is a [Age]-year-old male citizen of Ethiopia. He is from [Town], West Shewa, Oromia Regional State, Ethiopia. He is of Amharic ethnicity and an Orthodox Christian.
The applicant has not departed Australia since his first arrival [in] July 2015 as the holder of a visitor visa. He applied for a Class XA, Subclass 866 (Protection) visa on 2 October 2015.
A delegate of the Minister for Home Affairs refused the applicant’s protection visa application in a decision made on 9 February 2018. The applicant subsequently applied for merits review of the delegate’s decision on 13 February 2018.
Claims:
The applicant’s claims are summarised in his protection visa application, written claims and the delegate’s decision record.
Secondary school (2002-2006)
The applicant claims he was a student at the [Town] Senior Secondary School from 2002 to 2006, where there were protests run by opposition groups against the government and its policies. He claims that from [a certain grade], he became actively involved in the protests and the organisation of the protests. He claimed he garnered interest from other students and distributed flyers. He claims he was beaten several times by security forces due to his involvement in the protests.
University (2006-2011)
The applicant claims that he studied a Bachelor of [Subject] at [University 1] from 2006 to 2011, where he expressed his personal views and criticised articles of the Ethiopian Constitution, even though he was aware that members of the ruling party, the Ethiopian People’s Revolutionary Democratic Front (EPRDF) attended his classes. He states he does not think he was considered to be a big threat as the EPRDF did not come after him at this time.
The applicant further claims that during his university studies at [University 1], he also participated in protests. He claims he was beaten with a plastic stick by the police before escaping by running away. He claims that at around this time, his brother, [Mr A] was detained twice by government officials as he was suspected of possessing weapons.
[Occupation 1] Training (2011-2012)
The applicant claims he does not agree with the ruling party, EPRDF. He claims there are no strong opposition parties for him to join.
The applicant claims that in 2011, he was selected by [Employer] in Adama, Oromia in Ethiopia to undertake training at [an educational institute] to become [an Occupation 1]. He claims he accepted this job because he came from a poor family.
The applicant claims the pre-service training course was taught by low and high ranking EPRDF officers who have not been [relevantly] trained, and that the course focused on the political strategy, policies and objectives of the EPRDF. He claims the substance of this training course was rigorously designed to produce a conditioned mentality that guarantees exclusive political interest of the government in the future. It is designed to ensure that those completing the program and being employed in the [work sector] are politically aligned with the EPRDF.
The applicant claims he had been called to the director’s office twice after criticising the government and Ethiopian Constitution in class. He claims that on both occasions, he was told to stop questioning government ideologies and voicing dissenting opinions in class and to change his attitude and behaviour. He claims he was told to adopt the same opinions as the other students. He claims he was told that if he did not change his behaviour, the Institute would have to take measures, which he understood to mean being dismissed from the Institute.
The applicant claims that [in] September 2012, he was expelled from the training program for voicing his opinions after criticising an article of the Ethiopian Constitution earlier that month. He claims he was notified of his expulsion in the director’s office and that he was not given a letter.
Arbitrary detention in [a] Detention Centre (2012)
The applicant assumes the security force may have started monitoring him after his expulsion from the institute. He states he did not see anyone following him, however he felt intimidated and feared that he was being followed by non-uniformed members of the security force.
The applicant claims that [in] October 2012, people who he assumed to be security force members attended his house, grabbed him and drove him to [a] Detention Centre in Addis Ababa. He claims he was then taken to an interview room and questioned by two men, who asked him why he voiced opinions during his training course that were critical of the government’s policies and strategies. He claims the two men assumed he was part of an opposition party and tried to make him confess his membership of an opposition party, mainly Ginbot 7. He claims he never confessed to anything. He states the two men were verbally abusive, but not physically abusive. He claims he was denied access to a lawyer, contact with his family, and a chance to appear before the court.
The applicant claims that after the first interview, he was taken to a dark room, where the same two men tortured, intimidated and harassed him. He claims he was slapped, kicked and beaten with a plastic tube and gun butts. He claims this resulted in bleeding, a lot of bruising and pain for two to three weeks.
The applicant claims he was interviewed another 4-5 times after the first interview and that each time he was beaten and tortured. He claims he was denied access to medical treatment. He claims he was held in solitary confinement for approximately one week, which he thinks occurred because he could not offer any information to the interviewers about his membership of an opposition party.
The applicant claims he was released from detention in November 2012 after one month. He claims he was warned never to voice his anti-government opinions again and that if he did, he would end up back in jail. He thinks he was released because the interviewers did not have any information on him.
Departure from Ethiopia for [Country] (2013-2015)
The applicant claims that after his release from detention, he relocated and moved in with his brother, [Mr B] in [a] Sub City in Ethiopia. He claims that during this time, he stayed inside and did not go outside very much, and began looking for a way to leave Ethiopia.
The applicant claims that in February 2013, he accepted a scholarship at [University 2] in [Country]. He relocated and lived in [Country] from February 2013 to July 2015. He claims that during this period, he was notified by his brother, [Mr B] via telephone that the security forces had arrested and detained his mother and brother, [Mr A] about his whereabouts. He claims they were released after the security force confirmed he had departed Ethiopia. He suspects the security forces started monitoring his mother and brother, [Mr A] after their release.
The applicant claims he graduated from [University 2] in [Country] with a Masters Degree in [Specialisation 1] [in] September 2014. He claims his [Country] study permit expired in 2016.
The applicant claims he did not apply for protection in [Country], as he did not feel safe in light of the ongoing xenophobic attacks against Ethiopians. He states he was never personally attacked in [Country]. He also claims he feared the government would harm his family if he expressed his political views in [Country].
Why the applicant fears returning to Ethiopia
The applicant claims he does not post his political views on [Social media] because he fears for his family’s safety in Ethiopia. He believes that the EPRDF may come after his family because they do not have access to him in Australia.
The applicant states that if he returns to Ethiopia, he fears he will be subjected to serious harm, including detention and torture as he has been targeted by the government in the past. He claims the Ethiopian government openly targets, persecutes and kills individuals who they perceive to be supporters of opposition parties. He claims there is no redress if you are arbitrarily detained or tortured.
The applicant states that if he returns to Ethiopia, he would want to express his political views due to the serious things happening to Ethiopians.
The applicant states he would have a more inflated profile and be considered as a big threat now as he has completed a master’s degree and he has been living in a foreign country with liberal ideas and foreign ideologies. He does not believe he would be let into Ethiopia.
The applicant states he fears the EPRDF and Ethiopian intelligence agencies, who have a record of everything and are impossible to hide from.
The applicant claims that the EPRDF controls all of Ethiopia, including the airports, border checks, intelligence systems and telecommunication systems, and that there is no place where he can hide. He claims Ethiopian citizens’ daily lives are closely monitored by intelligence and government officers.
State protection
The applicant states he would not be protected by the State if we returned to Ethiopia and continued expressing his political opinions. He believes the State would immediately prosecute him, potentially under the Anti-Terrorism Proclamation 2009 (Ethiopia), which classifies terrorists to be anyone who encourages people to protest.
The applicant claims the police force would not protect him as the police administration is under the control of the government, specifically the Tigrayan Peoples’ Liberation Front (TPLF). He has also claimed to have previously been subjected to police brutality.
The applicant submits the Ethiopian courts take inadequate steps to protect or investigate allegations of abuse and torture made by detainees and defendants, including people held under the anti-terrorism laws. He further submits the courts lack independence, competency and impartiality, particularly in politically sensitive cases.
Applicant’s submissions dated 12 April 2018
The applicant provided written submissions to the Tribunal dated 12 April 2018.
In his submissions, the applicant states he has a well-founded fear of persecution in Ethiopia based on his actual and imputed anti-government political opinion (specifically his suspected association with the banned opposition group, Ginbot 7); his Amharic ethnicity; and his membership of a particular social group, which he submits may be identified as any of the following:
(a)people who engage in political protests and demonstrations;
(b)people who engage in anti-government political protests and demonstrations;
(c)Amharic people who engage in political protests and demonstrations;
(d)Amharic people who engage in anti-government political protests and demonstrations;
(e)Amharic people who have a demonstrated capacity to encourage and facilitate participation in anti-government political protests and demonstrations; and
(f)suspected member of Ginbot 7.
The applicant reiterated the key events which constitute his fear of persecution in Ethiopia, which have been described above.
The applicant states he is unable to produce documentary evidence of his claim to have been arbitrarily detained in [a] Detention Centre in Addis Ababa, because the detention was arbitrary and as such he did not appear before a court or receive any written charges against him. He claims he was denied all of his rights and the arresting authorities did not follow any legal procedures.
Similarly, the applicant submits he cannot produce documentary evidence of his mother and brother’s previous detainment because the detention was also arbitrary and they did not appear before a court or have formal written charges against them.
The applicant submits the EPRDF remains as the ruling party of Ethiopia and referred to country information from a variety of sources concerning the EPRDF’s crack downs on opposition parties and government critics, and arrests of government critics made pursuant to anti-terrorism laws.
The applicant states that the UK Home Office has reported that persons who have a political profile that has caused the authorities to suspect they are a sympathiser of an opposition group, including Ginbot 7, may be at risk of persecution of serious harm. He submits that he has previously been identified by the authorities as a perceived member of Ginbot 7 and therefore he already has the profile of being anti-government and either a member or sympathiser of Ginbot 7.
The applicant states the TPLF and the EPRDF have been persecuting and vilifying Amhara people and that the TPLF’s manifesto explicitly states that Amhara are the enemy and main obstacle of the Tigray people, and must be wiped out in order for the Tigray to live in freedom.
The applicant submits that due to his Amharic ethnicity and political opinions, the government assumed that he was a member or sympathiser of the Ginbot 7 group, as those of Amharic ethnicity who hold a view in opposition to the government are considered by the Ethiopian government to be likely associated with Ginbot 7.
The applicant submits he has previously attempted to relocate within Ethiopia. Referencing a DFAT report, the applicant states the Ethiopian intelligence system consists of “individuals reporting on the activities of others in their community or household, including the activities of political activists or opposition supporters”. He further states that DFAT has reported that Ethiopia’s surveillance system operates across all parts of the country. He further states that DFAT has assessed that political activists and other people perceived to oppose the government or its policies are unlikely to be able to avoid attracting the attention of officials by relocating within Ethiopia. The applicant submits that based on this country information, he would be unable to relocate anywhere within Ethiopia to avoid persecution by government authorities due to the capabilities and widespread operation of the surveillance system.

The applicant submits he does not have the right to reside in [Country]. He states his [Country] study permit expired on 31 December 2016.
Representative submissions dated 1 October 2021
The applicant’s representative submitted pre-hearing written submissions to the Tribunal on 2 October 2021.
The representative submits significant human rights contraventions continue to occur in Ethiopia since the applicant applied for protection.
The representative reiterated that the applicant voiced criticisms of the Ethiopian government and [work sector] during his training in [a Training Program] at the [Institute].
The representative states the applicant continues to not have any affiliation with Ginbot-7 and that the Ethiopian authorities made up claims he was affiliated with Ginbot-7 to justify his imprisonment and torture. She submits the authorities will continue to falsify claim that he is affiliated with terrorist organisations in order to detain him.
The representative reiterates the applicant was subject to arbitrary detention in [a] Detention Centre in October 2012, where he was beaten, placed in solitary confinement, tortured and denied access to medical treatment. She submits that while this detention centre has since closed, there continue to be reports of prisoners being mistreated by prison guards in Ethiopia with no processes through which to register complaints.
The representative states the applicant’s mother and brother were taken in for questioning regarding his whereabouts after he left Ethiopia. She states the applicant has been charged with ‘vilification other’s name’. She submits courts often decline to hear complaints made by detainees, and that informally operated and unofficial detention centres continue to exist in Ethiopia.
The representative submits the applicant continues to publicly express his opinions in relation to the current leader of Ethiopia on his public [Social media] page. She states Ethiopian law prohibits the dissemination of hate speech or misinformation through social media and the conviction of hate speech through these mediums is punishable with imprisonment for no more than two years or a substantial monetary fine. In addition, a conviction of violating misinformation laws is punishable with imprisonment of no more than one year or a substantial monetary fine. Further, if violation of hate speech laws results in attacks, a conviction is punishable with imprisonment between one to five years.
The representative submits Ethiopians of Amhara ethnicity are subject to violence and attacks and cited multiple incidences of such attacks.
The representative submits the cumulation of his political protests, association with demonstrations, and expressions of disapproval of Ethiopia’s governance whilst in Ethiopia and since leaving, marks the basis of the applicant’s real risk of serious harm if he is to return.
The representative submits the applicant fears his extended escape and avoidance of his arrest warrant over the last eight years will result in much more severe consequences upon his return.
Representative submissions dated 18 October 2021
The applicant’s representative submitted post-hearing written submissions to the Tribunal on 18 October 2021 in relation to the latest DFAT report on Ethiopia and why weight should not be given to the information outlined in the report relevant to the applicant’s claims.
Political system
The representative submits the latest DFAT report on Ethiopia pre-dates deteriorating relations between the federal government in Ethiopia and Tigray regional officials after the region held elections in September 2020 in defiance of the federal government’s directive to postpone the elections previously scheduled on 29 August 2020 due to COVID-19. She submits the defiance caused significant clashes between regional and federal forces. She submits that DFAT’s assessment regarding a shift towards political plurality since April 2018 is not consistent with how the federal government has managed opposition parties in response to postponement of the August 2020 election.
The representative submits the ruling political party in Ethiopia has not changed in over 26 years and that the appointment of a new Prime Minister, Abiy Ahmed in April 2018 and the subsequent creation of the Prosperity Party has created no fundamental change to the government’s operations. She submits that the Oromo Democratic Party continues to dominate the Prosperity Party and as such, were the applicant to be returned to Ethiopia, he would be returning to the same regime he escaped from.
The representative submits that while the applicant accepts there was a change in Prime Minister since his leaving Ethiopia, and new policies and commitments have been made by the Prime Minister, this does not equate to a reduced risk of significant harm for the applicant in Ethiopia.
The representative refers to recent country information which indicates that there is a lack of transparency in relation to people being charged and tried in courts, resulting in difficulty determining whether circumstances have improved since the Prime Minister’s appointment.
Ethiopian Human Rights Commission (EHRC)
Referring to recent country information published following the latest DFAT report on Ethiopia, the representative submits that significant human rights violations continue to occur under the Abiy administration and there has been limited institutional reports. The representative submits the EHRC has reported having serious concerns of how detainees are treated in detention centres across the Oromia region. She submits that the authorities’ treatment of detainees and failure to follow procedures, particularly in Oromia where the applicant is from, remains an ongoing issue despite the Abiy administration expressing their commitment to rectifying such issues.
Security Situation
The representative submits the due process rights and fair trial standards reported by the US Department of State in the latest Human Rights Report on Ethiopia challenges DFAT’s reports of the federal government’s commitment to protecting and promoting human rights. She submits this is consistent with the applicant’s experience and supports his claims that security forces in Ethiopia continue to arbitrarily arrest people in Ethiopia without clear reason and without charge. The applicant further submits that if authorities fail to follow procedure in high profile cases, then it is just as likely, if not more likely, to occur in low profile cases.
Oromos and Amharas
The representative submits the latest DFAT report on Ethiopia fails to observe the full extent of abuses taking place in Ethiopia in the midst of civil unrest, and that there are various disparities in its reporting. She refers to the US Department of State’s latest Human Rights Report on Ethiopia, which states that very limited access to certain groups have resulted in a lack of reporting and difficulty in observing the extent of human rights abuses and violations.
The representative states that the applicant submits the current civil war is spreading to neighbouring regions fuelled by ethnic enmity and political grievances. She submits ethnic-based killings are occurring, particularly in Western Oromia, by various armed groups, including the Oromo Liberation Front.
The representative submits the Amhara in Ethiopia are not a minority, and the applicant submits he was misunderstood in his explanation of ethnic division and clashes in Ethiopia. She further submits that while Amhara is one of the major ethnic groups in Ethiopia, Amharas remain subject to ethnic discrimination from other ethnic groups. She submits that there are reports that the initial attacks by the Oromia Liberation Front in August 2021 were targeted at ethnic Amharas. The representative submits that there have been frequent deadly clashes between the Oromo and Amhara people since the publication of DFAT’s latest report on Ethiopia.
Treatment of returnees
The representative submits that:
While DFAT reports Prime Minister Abiy has encouraged former dissidents to return from abroad and participate in his reform agenda, there is consistency amongst other reports that the Abiy Ahmed regime falters in maintaining its commitment to strengthening and upholding freedoms when civil unrest occurs, or finding loopholes where situations like the current global pandemic allow for excuses for various commitments.
The representative further submitted that the situation in Ethiopia continues to be unstable with continued civil unrest, and that in light of recent country information, little weight should be placed on DFAT’s reports on the treatment of returnees.
Prevalence of fraud
The representative submits that the DFAT report does not account for fraudulent police letters and/or documents and is not listed as a higher-risk document in terms of fraud. The representative states that the applicant submits to the best of his knowledge, the internal police department letter submitted to the Tribunal is a genuine document. The representative submits that:
Whilst the formatting of the document may not be typical to that of which we are accustomed to in Australia, the reality is each country has its own formatting rules with regards to the creation and provision of official documents. Letterhead and lack thereof does not necessarily indicate a fraudulent document. The document was obtained via a third party in Ethiopia who wishes to remain nameless, as it is suspected they are a departmental worker in Ethiopia and fear for their personal safety if their identity were to be discovered in the context of assisting the Review Applicant in his protection claims.
Evidence:
The Tribunal has before it a range of material, including, relevantly:
(a)The applicant’s protection visa application forms dated 25 August 2015 and 30 September 2015;
(b)The applicant’s identity documents, being copies of his passport, Australian driver licence, passport photographs and birth certificate;
(c)The protection visa decision record dated 9 February 2018 (the delegate’s decision);
(d)The application for review form dated 13 February 2018;
(e)All documents submitted to the Department and contained in Department file [Number] in support of the applicant’s protection visa application, including:
·The applicant’s representative’s written submissions dated 12 January 2018;
·His statutory declaration, sworn on 9 January 2018;
·His temporary certificate of graduation issued by [University 1] in Ethiopia confirming he has passed the exit exam for his Bachelor of [Subject]; and
·His Master of [Subject] in [Specialisation] qualification certificate issued by [University 2] in [Country].
(f)All documents submitted to the Tribunal in support of the applicant’s application for review, including:
·The applicant’s representative’s post-hearing written submissions dated 18 October 2021 and six attachments, being:
oThe latest DFAT report on Ethiopia;
oWorld Report on Ethiopia, published by Human Rights Watch in 2021;
o2020 Human rights report on Ethiopia, published by the US Department of State in 2021;
oPress release entitled, ‘Oromia: Law enforcement operation should be lawful’, published by the Ethiopian Human Rights Commission on 6 May 2021;
oNews article entitled, ‘Millions at risk as Ethiopia expels UN officials’, published by Human Rights Watch on 1 October 2021; and
oNews article entitled, ‘Ethiopia rights commission says 150 killed in attack in Oromiya’, published by Reuters on 27 August 2021.
·The applicant’s representative’s pre-hearing written submissions dated 1 October 2021 and twelve attachments, being:
oLetter from [Mr C] of the Sub-City Justice Office of the Legal Affairs Litigation Directorate addressed to the Addis Ababa Administration Police Commission dated [September] 2021 following up the applicant’s arrest;
oUndated statement from [Mr B], the applicant’s brother;
oLetter from the [Institute] addressed to the applicant dated [October] 2011 advising he has been selected to undertake training for the position of [Occupation 1] through [a Training Program];
oLetter issued by [University 3] in [Country] dated 19 June 2015 confirming the applicant’s admission to the Master of [Subject] ([Specialisation 2]) program;
oLetter issued by [University 4] in [Country] dated 13 May 2015 confirming the applicant’s admission to the Master of [Subject] ([Specialisation 3]) program.
oScreenshot of an email from [University 5]dated 6 May 2015 regarding application fees;
oScreenshot of an email from [University 6] dated 9 June 2015 advising a decision has been made in relation to his application to study a Master of [Subject] ([Specialisation 3]);
oCountry information report published by Human Rights Watch in 2021 titled, ‘World Report 2021: Ethiopia’;
oCountry information report published by the U.S Department of State in 2020 titled, ‘Ethiopia 2020 Human Rights Report’;
oCountry information report entitled, ‘Ethiopia: Over 50 ethnic Amhara killed in attack on village by armed group’, published by Amnesty International on 2 November 2020;
oNews article entitled, ‘Ethiopia: Opposition Figures Held Without Charge’, published by Human Rights Watch on 15 August 2020;
oNews article entitled, ‘[Deleted]’, published by Human Rights Watch [in] September 2019;
o[Social media] screenshots concerning updates regarding Abiy Ahmed Ali;
oThe applicant’s previous representative’s written submissions dated 12 January 2018, which were previously submitted to the Department; and
oThe applicant’s written submissions dated 12 April 2018, which were previously submitted to the Tribunal.
·The applicant’s written submissions dated 12 April 2018;
·Original and translated copies of the applicant’s employment offer from [Employer]; and
·A support letter from the applicant’s counsellor from [Organisation 2] dated 8 October 2021.
(g)Country information from the applicant’s submissions and other sources, discussed further below, including the Department of Foreign Affairs and Trade’s (DFAT) latest country information report on Ethiopia, published on 12 August 2020 (latest DFAT report on Ethiopia).
Country of reference / receiving country:
The applicant claims to be an Ethiopian national. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Ethiopia is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Hearing:
The applicant appeared before the Tribunal on 11 October 2021 to give evidence and present arguments at an in-person hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was accompanied by his representative.
After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection visa, the Tribunal discussed with the applicant that to be granted a protection visa he must either be recognised as a refugee or be a person entitled to Complementary Protection.
The Tribunal explained that under Australian law, to be a refugee he must have a well- founded fear of persecution in Ethiopia. This means the Tribunal must be satisfied that there is a real chance that he will face serious harm if he returned to Ethiopia. The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk he will suffer significant harm if removed from Australia to Ethiopia.
The Tribunal discussed his claims as summarised in the applicant’s protection visa application, written claims, the delegate’s decision and the submissions of his and his representative’s. He confirmed that his claims as so summarised were not in dispute. The Tribunal asked the applicant whether those claims were accurate and complete. The applicant stated they were and that he did not need to change them.
The Representative sought to confirm that the applicant had been expelled from his role as [an Occupation 1]. The Tribunal readily accepted that was the nature of the claim and not simply a case of having been expelled from his training program and thereby not being appointed as such. The Tribunal confirmed that the applicant claimed he had been appointed as [an Occupation 1] and then went on to attend training that was expected to take some months and confirms the applicant’s claim that he was expelled from the training and dismissed from his position as [an Occupation 1].
The Tribunal discussed with the applicant some of his background.
The Tribunal learned that the applicant was working in Australia in a [Workplace] which manufactured [Products]. The applicant was not married and he was presently renting a shared accommodation with two other people.
The Tribunal inquired about his family in Ethiopia. The Tribunal learned that the applicant’s father passed away when the applicant was [a child] and that his mother continues to live in Ethiopia. The applicant has one sister who is married with [children] and living in Ethiopia. He also has [brothers], all of whom have their own families, and are working and who all reside in Ethiopia.
The applicant’s family lived in a town that was close to the city of [City], which itself was about 200 kilometres west of Addis Ababa.
Assessment of claims and evidence, and findings:
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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…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.
The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
The Tribunal has considered carefully all of the applicants’ claims, individually and cumulatively, and makes the findings set out herein.
The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:
In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]
[1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf
However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]
[2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.
The Tribunal has some reservations about the credibility of the applicant’s claims.
The Tribunal has had regard to the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai v MIEA and Anor [1994] FCA 1105, where at paragraph 11 of the decision His Honour states:
The applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution….”
A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant's fear is not well-founded: Zhang v RRT & Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370 and Subramaniam v MIMA (Carr J,10/3/98). In Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a three month delay in lodging a Protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant's fear of persecution. While a delay in making a Protection visa application by itself is not conclusive it reasonably remains an indication in the applicant's case that the claimed fear of harm in this regard is not genuine.
The Tribunal noted that the applicant arrived in Australia on a Tourist Visa. It noted that he first arrived in Australia [in] July 2015 but did not apply for a Protection Visa until 2 October 2015. The Tribunal further noted that the Protection Visa Application was made about 12 days prior to the cessation of the Tourist Visa.
The Tribunal inquired of the applicant as to the reason for his delay in applying for a Protection Visa. The Tribunal noted to the applicant that he was in fact [an Occupation 2] and had Visa experience in [Country], in fact electing not to pursue Visa protection in [Country].
The Tribunal discussed these concerns with the applicant at length.

100. The applicant replied that he didn’t know anyone in Australia. However, the Tribunal noted that he had been collected from the airport upon his arrival by a friend. The applicant also stated that he needed time to settle down and that he eventually went to [Organisation 3] who took about a month to process his application.
101. The Tribunal inquired as to why it took him six weeks or more to attend on [Organisation 3]. He replied that he believed he had three months in which to sort out his Visa situation and he also mentioned that there were money issues.
102. The Tribunal does have some concerns about the reason for delay, especially given the applicant’s knowledge [and] the fact that he came to Australia on a Visitor Visa to attend an international [event] organised by [Organisation 4].
103. The Tribunal said it would consider that response further.
104. The Tribunal considered the applicant’s specific claims.
105. The Tribunal discussed the findings of the Delegate in her decision.
106. The Tribunal noted that the Delegate was prepared to accept that the applicant had attended protests when he was at school and when he was at university. The Delegate was also prepared to accept that whilst the applicant had attended protests, he was not always aware of who had organised the protests. The applicant clarified this to the Tribunal by advising that he always knew what the protests were about, though not necessarily which of the opposition parties may have organised the protest.
107. The Delegate had also accepted that the applicant had lived in [Country] for a time, attending university there. The Tribunal accepted that the applicant had obtained [Degrees] in Ethiopia and in [Country]. Having considered letters submitted to the Tribunal by the applicant confirming attendance at those universities, the Tribunal is similarly minded to accept the applicant’s qualifications.
108. The Tribunal is also minded to accept, as did the Delegate, that the applicant was a low level protestor who participated in various protests at school and at university but that he was never an organiser of any such protests. The Tribunal stated that it understood that protests at universities about the quality of food were not uncommon.
109. The Tribunal discussed with the applicant concerns it had about evidential holes in his claims. Again, the Tribunal was satisfied with the evidence presented in relation to his qualifications but noted that the applicant had no corroborating evidence of his expulsion from the training course.
110. The applicant explained that his expulsion was arbitrary and that he was simply told that he was being expelled.
111. The Tribunal and the applicant engaged in an extensive discussion about university study and the appointment as [Occupation 1] of people who were immediately out of university. The applicant spoke in some detail about the process of appointment and that you were appointed to a role [upon] the completion of the training. He explained to the Tribunal that he was paid to attend the training for about 10 months. He said the training in the first six months was akin to attending lectures and that the students were fed political policy that they were expected to adopt. Afternoons were generally discussion groups wherein groups would discuss the content of lectures presented that morning.
112. The applicant explained that the following three months involved attendance at [a location] obtaining “on-the-job” training.
113. The applicant stated that he was expelled from the training program [in] September 2012.
114. The Tribunal explored with the applicant details of his detention.
115. It was noted that the applicant claimed he was detained [in] October 2012.
116. Noting the proximity of that date to the date of his expulsion from training, the applicant explained his belief that the two were connected by virtue of his speaking out against the government and its policies during the course of his training program.
117. The Tribunal also noted his evidence to the Delegate and the Delegate’s preparedness to accept that given the applicant’s intelligence and the nature of the course, that it was likely that he would speak his views. On the strength of the discussions with the Tribunal, the Tribunal is also inclined to accept that the applicant may have expressed his honest views about the [work sector] even if that was inconsistent with the current political thinking of the government.
118. However, the Tribunal expressed its concerns about the lack of any corroborative evidence as to his detention and the claimed torture that took place during it. The applicant explained that as it was all arbitrary, nothing was ever recorded.
119. The Tribunal asked the applicant to describe for it what events took place during the detention. The applicant explained that he was detained for a period of one month. During that period, he was tortured in the form of beatings. He explained that he would be beaten for about an hour a day. He explained that he was kept in solitary confinement for the first week of his detention, and thereafter was allowed to mix with others. He also admitted that the torture was administered for only the first two weeks.
120. The Tribunal asked the applicant whether other students from the training course were also expelled. He agreed that others were. The Tribunal asked whether any of those other students were similarly detained as he had been. He advised that he was not aware of any of the others being detained, to the best of his knowledge.
121. The Tribunal inquired as to how his release from detention came about. He replied that after a month, he received a warning that he was not to be outspoken again and was let go.
122. The Tribunal asked whether any of his family was aware at the time that he was being detained. He replied that they were not.
123. The Tribunal remains concerned and is concerned as to the lack of any evidence to corroborate the applicant’s detention, torture and ultimate release. The Tribunal acknowledges that the applicant was not living at home for the duration of the training program, having lived on campus for the first three months and thereafter in a flat with others. The Tribunal was perplexed as to the lack of documentary evidence of any inquiry as to his whereabouts by his family.
124. The Tribunal acknowledges that a letter from his brother, [Mr B] (submitted pre-hearing, undated, but stated to have been written very recently), refers to the applicant “being put to the most notorious jail ever by even Ethiopians’ standard”. However, that letter makes no further reference to his detention or indeed torture. That letter also makes a passing reference to his dismissal from the Pre-Judicial Service Training Institution.
125. The Tribunal referred to the applicant’s claim as to his brother being detained, likely for being in possession of weapons. The Tribunal again notes that there is no evidence in support of this claim. The Tribunal suggested to the applicant that the brother’s detention was in no way related to the applicant’s conduct or claims. The applicant agreed.
126. The Tribunal discussed with the applicant his claim as to his mother and brother being detained. It asked the applicant when this occurred. He replied that his mother and brother were detained shortly after he had left for [Country]. He advised that his brother, [Mr B], had told him about it. The Tribunal clarified that it was his mother and another brother, [Mr A], who were detained, and not [Mr B].
127. The Tribunal again expressed its concern as to no evidence in support of this claim. It confirmed that there were no arrest warrants, the Tribunal noting that there was no statement from his mother tendered to the Tribunal in support of the claim and that the undated letter from [Mr A] made no reference at all to any detention of his mother or brother or other family members.
128. In relation to [Mr B]’s letter, the Tribunal did ask the applicant what was meant by a reference by [Mr B] to “the whole family is targeted”. The applicant provided a lengthy explanation which the Tribunal confirmed as the family being generally targeted as being Amhara people in an Oromio State.
129. The Tribunal then inquired of the applicant as to the meaning of a paragraph in [Mr B]’s letter as follows:
“Still his three brothers and a sister, including me, are receiving threats to bring him to “justice” as they wanted to activate the bogus allegation they lodged against him.”

130. The applicant replied that he didn’t know much about this as the family don’t want to stress him.
131. The Tribunal noted the submission of a report from [Organisation 2]. The Tribunal noted from the report that he had voluntarily attended a clinic four times during 2019. The Tribunal advised that it could only give this report very limited weight as whilst it referred to previous trauma, it did not reference any of the applicant’s claims. The Representative suggested that he had attended the clinic after arriving in Australia and was evidence of the trauma experienced abroad. The Tribunal noted that the applicant had arrived in 2015 but had not attended the clinic until 2019.
132. The Tribunal referred to a letter submitted to it dated [September] 2021. The letter purported to be a letter from the Addis Ababa Administration Police Commission and was addressed to the [Name] Area Police Station.
133. The Tribunal made a number of observations about this letter, showing it to the Representative and the applicant, as it did so. It noted that the letter was not on any form of letterhead. It noted that the letter had a stamp at the top and the bottom of the letter. It noted that the stamps were not clear and appear to have been smudged. The stamp at the top of the letter was not straight and neither stamp had the clarity of the text contained on the letter. The Tribunal expressed its grave concerns about the authenticity of this letter.
134. The Tribunal asked the applicant how he had obtained it. He replied that his brother, [Mr B], obtained a copy of the letter. The Tribunal asked the applicant how his brother could have obtained such a letter which was addressed from the Police Commission to what appeared to be a local police station. The applicant provided a detailed explanation as to concerns that he had that charges may have been laid against other people who had attended his training course and who had been expelled from that course. He had heard that they had been charged for non-repayment of fees. He said that he didn’t know whether he had been so charged and had asked [Mr B] to see whether there was such a charge against him. In doing so, [Mr B] had located this letter. Asked how he had located such a letter, the applicant stated that his brother had talked to different people he knows but who wished to remain anonymous.
135. The Tribunal invited the Representative to comment upon the letter. The Representative stated that it was apparent that the letter was convenient and restated that his brother had obtained it from third parties who wished to remain anonymous.
136. The Tribunal asked the applicant about the charge of vilification. He replied that he knew nothing of that.
137. The Tribunal referred the Representative to paragraph 5.64 of the DFAT Report. It noted that civil documents can be easily falsified. It also noted that documents considered to be higher risk in terms of fraud include Birth Certificates, Death Certificates and National Identification Cards.
138. Again, the Tribunal expressed its grave reservations in relation to the authenticity of this document and also expressed its concern for the credibility of the applicant in presenting such a document of dubious clarity.
139. The Representative replied that she and the applicant had carefully considered the letter and whether it ought be submitted and concluded that it was authoritative.
140. The Tribunal is not so persuaded and is equally concerned by its submission and the impact it thus has upon the applicant’s credibility, and certainly the credibility of his claim.
141. The Tribunal asked the applicant about his [Social media] activity and the submission of a single page of [Social media] entries.
142. Firstly, however, the Tribunal noted that the applicant had told the Delegate that he did not post his political views on [Social media] because he was scared for his family’s safety in Ethiopia. The submission of [Social media] entries then appeared to be contradictory to that position he had taken.
143. The Tribunal inquired as to whether the samples provided were the extent of his [Social media] activities or were they merely samples of many entries he may have made. The applicant replied it was the latter. He replied that he made [Social media] entries both in English and in the local language.
144. The Tribunal noted, however, that whilst it knew little about social media, it did note that his [Social media] entries had limited, in fact minimal, exposure with only five, six and seven likes or comments, one of which was his brother.
145. The applicant replied that he is concerned that the Intelligence Agency is aware of it.
146. The Tribunal replied by asking the applicant whether, given the population of Ethiopia of over 100,000,000 people, and the numerous entries that they would make on an hourly basis, and of the numerous Ethiopians overseas, of the five to seven responses that he had had to his [Social media] entries, that any authority would be aware of his comments. The applicant replied that the Intelligence Agency would be aware of his postings because of his profile, his profile being an accumulation of his earlier protests and comments made during his training program.
147. The Tribunal then went on to discuss Country Information with the applicant and the Representative. It ventured an opinion that even if the Tribunal accepted all of the claims as made by the applicant (which it stressed that it was not yet prepared to do so), if it was prepared to accept that the applicant had a subjective fear of persecution, recent Country Information appeared to run completely counter to his claims to fear persecution.
148. To this end, the Tribunal discussed an extensive array of Country Information from the DFAT Report as follows.
Ethiopian People’s Revolutionary Democratic Front (EPRDF)
149. The Tribunal considered country information it had obtained from DFAT’s latest country information report on Ethiopia in relation to Ethiopia’s political system:
Political system
2.35 Political parties have existed in Ethiopia since the overthrow of the Derg in 1991, although the ability of parties not belonging to, or affiliated with, the EPRDF to operate freely was circumscribed. The EPRDF and affiliated parties controlled all tiers of government from 1991 to December 2019, when the EPRDF dissolved and reorganised as the Ethiopian Prosperity Party. The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities: (1) the Tigrayan People’s Liberation Front (TPLF), which founded the EPRDF and led the ouster of the Derg; (2) the Oromo Democratic Party (ODP), formerly the Oromo People’s Democratic Organisation, or OPDO; (3) the Amhara Democratic Party (ADP), formerly the Amhara National Democratic Movement, or ANDM; and (4) the Southern Ethiopian People’s Democratic Movement (SEPDM). The EPRDF had an estimated 8 million members.
2.39 The Ethiopian Prosperity Party (EPP), formed in December 2019, merged into a single national party three of the four parties that previously formed the EPRDF (the ODP, ADP and SEPDM). The EPP also includes the former Afar National Democratic Party (ANDP), the Benishangul-Gumuz People’s Democratic Unity Front (BGPDUF), the Ethiopian Somali People’s Democratic Party (ESPDP), the Gambela People’s Democratic Movement (GPDM) and the Harari National League (HNL). The ANDP, BGPDUF, ESPDP, GPDM and HNL previously governed Afar, Benishangul-Gumuz, Somali, Gambela and Harari states, respectively. They were affiliated to – but not formally part of – the EPRDF. Prime Minister Abiy justified the formation of the Ethiopian Prosperity Party on national unity grounds, claiming it would buttress efforts to move away from ethnic-based identity politics and toward ‘pan-Ethiopianism’.
2.40 Parliament adopted a new electoral law in August 2019. Among other things, the law bars serving public servants from contesting elections and increases the threshold for the formation of political parties. Under the new law, 10,000 signatures are required to form a national political party (up from 1,500), and 4,000 signatures for a regional party (up from 750). The law also establishes a framework for resolving electoral disputes countrywide. In March 2019, 107 political parties signed a code of conduct with the federal government to work towards free and fair elections in 2020. The Abiy Government has sought to strengthen the independence of the National Electoral Board of Ethiopia (NEBE). In November 2018, it appointed Birtukan Mideksa – a high-profile dissident who previously led the UDJ and was imprisoned for her role in the 2005 protests – as NEBE Chair. On 31 March 2020, NEBE announced it could not hold general elections as scheduled on 29 August 2020 due to the COVID-19 outbreak. Constitutionally, elections must be held by the end of the Ethiopian Calendar year on 6 September 2020. Having declared this no longer possible, the Government is consulting opposition parties, and assessing its constitutional options.

2.41 DFAT assesses there has been a shift toward political plurality since April 2018. DFAT assesses there is a level of political commitment at the federal level to open the space for opposition political parties and to stage free and fair multi-party elections when possible. Opposition parties were actively preparing for the August 2020 elections before they were postponed but the pressure put on the system by the COVID-19 pandemic, along with the drought and locust plague, will test Abiy’s commitment to Ethiopia’s new principles, and opposition parties’ commitment to collaboration.

Political opinion
150. The Tribunal considered country information it had obtained from DFAT’s latest country information report on Ethiopia in relation to actual or imputed political opinion:
Political opinion (actual or imputed)
3.33 The constitution enshrines extensive protections in relation to political opinion. Article 25 provides for equality under the law, without discrimination on the grounds of political or other opinion; Article 29provides for freedom of expression; Article 30 provides for freedom of assembly, peaceful demonstration and petition; Article 31 provides for freedom of association; and Article 38 provides for the right to vote, be elected and be a member of a political organisation regardless of colour, race, nation, nationality, sex, language, religion, political or other opinion. Organisations formed in violation of appropriate laws and/or with the intent to subvert the constitutional order are prohibited. Organisers of large public gatherings must notify the authorities 48 hours in advance and obtain a permit.
3.34 In practice, political freedoms were significantly curtailed before April 2018. Members of opposition groups, human rights activists, and independent commentators such as journalists and bloggers who opposed the government’s policies were regularly harassed and detained. The ATP was used extensively to restrict political freedoms and arrest and prosecute government critics, particularly individuals with suspected affiliations to proscribed groups Ginbot 7, the OLF and the ONLF. Against this background, many opposition leaders and dissidents left Ethiopia. Individuals who were not members of the EPRDF reportedly faced discrimination in public sector employment, including impediments to career progression. Antigovernment protests were often dispersed through force, and participants arrested.
3.35 Freedom of political expression has expanded since 2018. More than 10,000 political prisoners have been released since 2018 (a process initiated by the Desalegn Government), including senior oppositionleaders Andargachew Tsege of Ginbot 7 and Merera Gudina and Bekele Gerba of the OFC. In June 2018, parliament lifted its terrorist designations of Ginbot 7, the OLF and the ONLF. These groups subsequently renounced armed struggle and returned to Ethiopia, where they operate as registered political parties. In July 2018, federal parliament amnestied thousands of individuals charged with treason and other crimes against the state. This has enabled high-profile opposition figures, including Berhanu Nega of Ginbot 7, to return from exile and resume their political activities. According to the federal government, over 13,000 people have been released under the amnesty law. Political opposition parties now operate with greater freedom, although some report intimidation and obstacles to holding rallies due to a lack of protection in regional states. In January and February 2020, over 100 OLF supporters were reportedly arrested across Oromia State, while some members of the National Movement of Amhara (NaMA) – an opposition party formed in 2018 that espouses Amhara nationalism – were detained in connection to the alleged coup attempt in June 2019 (see Security Situation). DFAT is unable to verify if these arrests were politically motivated. A local source involved in politics told DFAT they were able to express their political views freely without fear of arrest and prosecution. Anti-government protests are common — in January 2020, largescale anti-government protests took place in Amhara State in relation to the abduction of 27 ethnic Amhara university students in Oromia State. Protesters accused Prime Minister Abiy of not doing enough to secure the students’ release.
3.40 Local sources told DFAT that, traditionally, being a member of the EPRDF increased one’s chances of gaining employment in the public sector and earning subsequent promotions, including in the judiciary, police, and public schools and universities. DFAT heard anecdotally that, while the practice of ruling party members being advantaged in public sector employment and promotions persisted, it was not as pronounced under the current federal government.
3.41 DFAT assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.
3.45 Anti-government protests can and do occur. DFAT assesses that, since April 2018, participants in peaceful protests face a low risk of arrest and detention. DFAT further assesses that participants in peaceful protests, including organisers, are likely to be of little ongoing interest to the authorities.

Suspected Ginbot 7 Member or Sympathiser
151. The Tribunal has considered country information it had obtained from the latest DFAT country information report on Ethiopia relevant to the applicant’s claims:
2.38 In June 2018, federal parliament removed Ginbot 7 (Amharic for ‘May 15’, the date of the disputed 2005 election), the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The parties, which maintained armed wings and were committed to the overthrow of the EPRDF through militant means from their bases in Eritrea, were designated as terrorist organisations in June 2011. Ginbot 7, the OLF and the ONLF have since returned from exile and now participate in the political process.

Amhara
152. The Tribunal considered country information it had obtained from DFAT’s latest country information report on Ethiopia in relation to Amharas:
Demography
2.7 Ethiopia is ethnically and linguistically diverse, comprising more than 80 different ethnic groups and 100 languages. According to the most recent national census (2007), 10 ethnic groups have a population of 1 million people or more. The Oromo constitute the single largest, at 34.5 per cent of the population, followed by the Amhara (26.9 per cent), Somali (6.2 per cent), Tigrayan (6.1 per cent), Sidama (4 per cent) and Gurage (2.5 per cent) peoples. More recent figures are unavailable — a new census has been postponed repeatedly, most recently in 2019 (owing to large-scale internal displacement). Amharic is the official national language, although the government flagged in March 2020 its intention to grant similar status to the Oromiffa, Afar, Somali and Tigrinya languages.
Security Situation
2.50 The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018 (see Internally-Displaced People). Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date.
2.59 …DFAT assesses that, with Ethiopia’s democratic opening presenting opportunities for the expression of previously-suppressed historical grievances and ethnic-based clashes increasing across the country, people who constitute ethnic minorities in regional states face a growing risk of physical violence. This risk is more pronounced during times of civil unrest.
Race/Nationality
3.1 …Traditionally, ethnically-motivated societal violence has been rare, although ethnic-based clashes have increased since 2018 (see Security Situation), fuelled largely by competition for resources and enabled, in part, by the lifting of restrictions on freedom of expression and an associated rise in hate speech and misinformation (see Media)…
3.2 Ethiopia is a multi-ethnic society, and ethnic groups enjoy extensive rights. Under the Ethiopian Constitution every ‘nation, nationality and people’ (a reference to all ethnic groupings which constitute Ethiopia) has the right to speak their language and promote their culture…
3.3 All major ethnic groups are represented in the federal government and bureaucracy, and political parties represent the interests of Ethiopia’s various ethnic groups. DFAT assesses official discrimination – including systematic state-sanctioned discrimination, denial of public services and higher detention rates – based on race and/or ethnicity is rare. This assessment is consistent with the constitutional prohibitions on discrimination, and reflects the need for governments to maintain their legitimacy through inclusiveness, given Ethiopia’s ethnic diversity. Different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a ‘non-factor’ in Addis Ababa — most people consider themselves from Addis Ababa as opposed to a particular ethnic group. Violence based on ethnicity is not common in Addis Ababa, but is a growing concern in regional states. Interethnic relations have deteriorated since 2018, and DFAT assesses the situation for ethnic minorities at the regional state-level is increasingly challenging, and they face a growing risk of violence at the hands of the majority community.
3.4 Societal discrimination based on ethnicity can occur, but is predominantly in the form of positive discrimination in favour of a particular ethnic group rather than active discrimination against people of a different race or ethnicity…
Amharas
3.9 The Amhara people are the second-largest ethnic group in Ethiopia, at 26.9 per cent of the population. While they reside predominantly in Amhara State, ethnic Amharas are present throughout Ethiopia, with significant populations in Oromia and SNNP states (2 million and 420,000, respectively). Nearly 1.3 million Amharas were residing in Addis Ababa at the time of the 2007 census, making them the single largest ethnic group in the capital. Most Amharas are Orthodox Christian. Their language, Amharic, is the official national language. The Amhara governed Ethiopia for the longest period before the EPRDF came to power in 1991, including during military rule and the era of the monarchy. Like the Oromo, the Amhara felt marginalised by the Tigray under the EPRDF, and protests in Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018. Similarly to the Oromo, Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression.
3.10 The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military (until recently Amharic was the sole working language of the federal bureaucracy). Roughly a quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers at the time of publication. Political parties representing Amhara interests are active. DFAT assesses the arrest of Amharas during the 2014-18 anti-government protests was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. The Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are a minority.

State protection
153. The Tribunal has considered country information it had obtained from the latest DFAT country information report on Ethiopia in relation to corruption and state protection:
Corruption
2.19 Ethiopia has a strong anti-corruption legal framework. The Criminal Code, the Revised Federal Ethics and Anti-Corruption Commission Establishment Proclamation, and the Revised Anti-Corruption Law criminalise all major forms of corruption, including: active and passive bribery; bribery of foreign officials; and money laundering. Facilitation payments are illegal, and public servants are forbidden from accepting gifts or hospitality that may influence their decision-making. Under the Criminal Code, corruption on the part of public servants is punishable by between one and 10 years in prison. Government officials are legally obligated to register their wealth and personal property (non-compliance carries financial and criminal penalties). In January 2017, the federal government established a Corruption Directorate within the Federal Police Commission to investigate cases of systemic corruption. Since the election of Prime Minister Abiy, the directorate has been involved in the investigation of a number of high-profile cases, with some publicised success.
2.20 In practice, corruption seems to be widespread, including in the civil service. According to the GAN Business Anti-Corruption Portal, common corrupt practices include the payment of facilitation payments and bribes to process documents, to keep land leased from the state and to obtain government contracts. Local sources told DFAT that a bribe is often required to obtain a national identification card, driver’s licence and permits for establishing a business. Sources also told DFAT that the police readily accept bribes in exchange for waiving the issuance of traffic infringements (the going rate is reportedly 50 birr, or approximately AUD2.50). While corruption occurs, it is less widespread by regional standards. Ethiopia ranked 96th out of 180 countries in Transparency International’s 2019 Corruption Perceptions Index— an improvement of 18 places from a year earlier.
2.21 Combatting corruption is a priority for the current federal government. Over 100 officials have been arrested for alleged corruption and economic sabotage since November 2018, including from the senior ranks of: the National Intelligence and Security Service (NISS); the Federal Police; the Public Procurement and Property Disposal Service; the Ethiopian Electric Corporation; and the military-run METEC. Some of these charges were dropped in February 2020. Bereket Simon, a former communications minister and EPRDF founding member, was arrested on corruption charges in January 2019, and remains in jail. METEC is accused of overseeing an illegal procurement program worth USD1.2 billion for the benefit of select individuals, and has lost several government contracts since Abiy took office. Federal parliament was considering legislation to affirm the independence and expand the mandate of the Office of the Ombudsman at the time of publication. The proposed legislation would strengthen the investigative capacity and enforceability of the Ombudsman’s decisions. The legislation has not yet been presented to the Parliament for approval.
Ethiopian Human Rights Commission
2.46 The Ethiopian Human Rights Commission (EHRC) was established in 2000 with a mandate to promote and protect human rights and fundamental freedoms enshrined in the constitution. This includes advising the federal government on the compliance of national laws with international human rights standards; delivering training to the military, police, prison officials and public servants; and monitoring federal and regional prisons, including through unannounced visits. The EHRC has the power to investigate allegations of human rights violations that are not currently before the courts, including by summoning parties and analysing evidence, and to make recommendations to relevant state institutions. The EHRC has branches in every regional state. It also operates legal aid centres in collaboration with universities and civil society. The EHRC receives government funding and is accountable to parliament, which appoints its commissioners. Traditionally, the EHRC has lacked capacity and independence and rarely investigated alleged human rights violations by government forces. A local source told DFAT that the EHRC had not lived up to its mandate.
2.47 The Global Alliance for National Human Rights Institutions (GANHRI) assesses the EHRC as being partially compliant with the Paris Principles, the international standard for national human rights institutions (the EHRC was last assessed in 2013). In making its assessment, the GANHRI noted that the EHRC had not provided any advice to the government on laws that impact on human rights, including the ATP and the Charities and Societies Proclamation (2009) (see Human Rights Organisations).
2.48 The EHRC has a complaints mechanism, and receives about 1,000 complaints annually. These range from domestic violence, workplace discrimination and labour disputes to enforced disappearances, ill treatment in detention and mass killings. DFAT understands the EHRC plans to publish its findings from all future investigations. Budgetary constraints are an ongoing challenge, and hamper its ability to attract and retain qualified staff, and, in turn, to monitor and investigate complaints of human rights violations.
2.49 The current federal government has undertaken to reform and strengthen the capacity and independence of the EHRC. It is reviewing the law establishing the EHRC, with a view to strengthening its mandate. The review is ongoing. A new Chief Commissioner, Daniel Bekele, was appointed in July 2019. Bekele is a high-profile human rights activist who was jailed for his work with the NGO ActionAid Ethiopia and, following his release, went into exile, where he held senior positions at Human Rights Watch and Amnesty International.
Torture
4.10 The current federal government has identified the prevention of torture as a core priority. In July 2018, Prime Minister Abiy, in an address to parliament, acknowledged that government forces relied on torture, which he characterised as state terrorism. Abiy has committed to holding perpetrators of torture to account and ending a culture of impunity. In July 2018, the federal attorney-general announced investigations into torture and ill-treatment in detention facilities. Over 60 senior officials were subsequently arrested, including for suspected acts of torture. Their trials were ongoing at the time of publication. The authorities also issued an arrest warrant for Getachew Assefa, the former longtime director of the NISS, for alleged torture, causing deaths during interrogations and detaining members of opposition groups (Assefa has evaded arrest to date). Maeke’lawi was closed in April 2018. Jail Ogaden was closed in September 2018, and some administrators, including the jail’s former head, have been arrested for suspected human rights violations committed under their command. Restrictions on access to detention centres by independent bodies for monitoring purposes have been loosened.
4.11 DFAT understands that, at the time of publication, the EHRC was not receiving extensive complaints of torture by the authorities. Multiple sources told DFAT they were hearing significantly less frequent claims of torture, including by the police and inside prisons, suggesting the practice is less common today.

205. The Netherlands’ Ministry of Foreign Affairs[35] reports that a confidential source said that the Amhara, outside their own region, are the most frequent victims of discrimination and ethnic violence. This is due to the fact that Amhara have spread throughout Ethiopia over the years and are a (relatively large) minority in many regions. Furthermore, they are often associated with the oppression of other ethnic groups during those periods when the Amhara held sway in Ethiopia. Even now, Amhara are often seen in other regions as supporters of the current government, ‘rightly or wrongly’, the source says. A confidential source stated that Abiy is often accused of defending the interests of the Amhara too much through his politics and the appointments of Amhara to high posts. It further reported that in some cases, the problems do not lie along ethnic lines and people are discriminated against, disadvantaged or worse because of their political or religious denomination, according to a confidential source.
[35] Ministry of Foreign Affairs, Government of the Netherlands, Country of Origin Information Report Ethiopia’ (February 2021), pp. 10, 62.
206. On 30 August 2021, the German Federal Office for Migration and Refugees[36] reported of the deaths of 150 ethnic Amharas allegedly killed by the Oromo Liberation Front in Oromia:
On 26.08.21, the Ethiopian Human Rights Commission (EHRC) reported that members of the Oromo Liberation Front (OLA) killed at least 150 ethnic Amhara in Gida Kiremu Woreda (district) in East Welega zone in Oromia regional state. The OLA, a splinter group of the formerly banned opposition Oromo Liberation Front (OLF), denies the allegation saying that it repelled an attack by Amharic militias. Fighting between the OLA and Amharic units has broken out repeatedly in the border region to the regional state of Amhara, especially since the Ethiopian military was withdrawn for the operation in Tigray.
[36] Briefing Notes ', BAMF - Federal Office for Migration and Refugees (Germany), 30 August 2021, p.4.

207. The Tribunal notes that the applicant is from [Town], West Shewa, Oromia Regional State.
208. From the country information[37] the Tribunal accepts that the situation in Ethiopia remains dangerous and volatile with considerable inter-ethnic tensions. It is feared by opposition parties that the Abiy government has turned against Oromo leaders, notably arresting Jawar on terrorism charges, and returned to imperial-style domination. Meanwhile, Belete Mols, Chairman of the National Movement of Amhara, accepted a position in the Prime Minister’s Cabinet and Amhara State President Yilikal Kefale has taken sides with the Prime Minister against the TPLF and Tigray people. The action of the government against the opposing parties appears to have been systematic and discriminatory in an attempt to maintain control.
[37] The Guardian. ‘As Ethiopia’s army declares daily victories, its people are being plunged into violence’ Alex de Waal 24 November 2020 The Tribunal has taken into consideration the fact that the opposition parties in Ethiopia represent the varying ethnic groups in the country. In the case of the Oromo, the authorities have continued acting against the OLF and OLA. While politically motivated, the actions of the government have the effect of persecuting ethnic Oromo on a systematic and discriminatory manner. As a consequence it would seem, the Oromo are rising up against the Amhara as evidenced by the attack on Amhara people in Oromio Regional State.
210. As a result, the Tribunal accepts that the applicant’s fear of persecution may involve systematic and discriminatory conduct.
211. The Tribunal is reminded that the applicant’s family still reside in Ethiopia and apparently without any issues as to ethnicity. With that in mind, the Tribunal considers that it is not likely that the applicant would be seriously harmed by reason of his Amhara ethnicity. However, that is not the test that this Tribunal must apply. It must determine that the risk is real, and that it is not remote.
212. Notwithstanding the country information contained in the DFAT Report, the applicant’s representative has made a strong case that the Tribunal ought not be totally persuaded by the information within it. She has highlighted more recent information and from multiple sources that provides information that is contrary to information contained in the August 2020 DFAT Report. The situation in Ethiopia has deteriorated since August 2020 and ethnic tensions are rife.
213. It is possible that the applicant, as an educated Amhara, and as [an Occupation 2], one that might be seen to represent the “system”, may be targeted by the Oromo (or TPLF) in the event that conflict breaks out in his region. As such, the Tribunal is not able to rule out that there is a chance, that is not a remote chance, that he specifically, may be seriously harmed in the event of racial tensions in his region.
214. Therefore, based on the applicants evidence and the available country information, the Tribunal accepts that there is a real chance the applicant will be seriously harmed as a result of being an ethic Amhara in the event that he is returned to his home in Oromio Regional State in Ethiopia.
215. The Tribunal finds that if the applicant returns to Ethiopia now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that he would be physically injured or killed by Oromo or TPLF nationalists or militias due to his being a person of Amhara ethnicity and by reason of his education, his being [an Occupation 2] and his being perceived to be a part of the [work sector].
216. Having carefully considered the evidence submitted by the Representative, and relevant country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of his race, extends to the whole of Ethiopia as required by s.5J(1)(c) of the Act.
217. The Tribunal has duly considered whether effective protection measures as defined in s.5LA of the Act are available to the applicant. Having regard to the DFAT country information and other country information referenced above, concerning the effectiveness of the Ethiopian Police Force, and in particular the links between elements of it and ethnic groups (from the ethnic communities from which they are drawn), the Tribunal is not satisfied that the applicant can access the protection of the Ethiopian State, nor is there a reasonably effective police force to assist him, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution he faces on account of his race. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.
218. Finally, as the persecution feared relates to his race, there are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.
Cumulative claims
219. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is satisfied that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of his race. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm?
220. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ethiopia.
Conclusion: Refugee Criterion
221. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
222. As the Tribunal has determined that the applicant is a refugee in accordance with s.36(2)(a), it is not required to consider whether, on the evidence before it, that there would be a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Ethiopia.
Overall Conclusion
223. 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
224. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Michael Hawkins AM
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.
…

[2021] AATA 5175

28 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction