1806452 (Refugee)

[2022] AATA 4902

1806452 (Refugee) [2022] AATA 4902 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Meskerem Lemma Ashagrie (MARN: 1576098)

CASE NUMBER:  1806452

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Jason Pennell

DATE:2 November 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 2 November 2022 at 9.21am

CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity, political opinion and religion – Amhara, official of opposition political party and Orthodox Christian – termination of employment, detention without process, and warning – family members detained after applicant’s departure – voluntary return – participation in protests and social media activity in Australia – not member of party now – country information – claim on political and religious grounds not accepted – claim on ethnic grounds accepted – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(b), 36(2)(a), 65

Migration Regulations 1994 (Cth), Schedule 2

CASES

Calado v MIMA (1998) 81 FCR 450

Chan v MIEA (1989) 169 CLR 379

Maningat v MIMA (FCA, Tamberlin J, 30 Apr 1998)

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIEA v Guo (1997) 191 CLR 559

MIMA v Darboy [1998] FCA 931

MIMA v Zheng [2000] FCA 50

Nagalingam v MILGEA (1992) 38 FCR 191

Pei Lan He v MIMA [2001] FCA 446

Prasad v MIEA (1985) 6 FCR 155

V v MIMA (1999) 92 FCR 355

VCAD v MIMIA [2004] FCA 1005

Wang v MIMA (2000) 105 FCR 548

Woudneh v Inder (FCA, Gray J, 16 September 1988)

WZAOO v MIAC (2012) 134 ALD 332

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Ethiopia, applied for the visa on 22 September 2016. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. The applicant appeared before the Tribunal on 13 April 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video, determining it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

4. The hearing was assisted by an interpreter in the Amharic and English languages.

5. The applicant was represented in relation to the review by her Migration Agent Meskerem Lemma Ashagrie of Desire Australia Pty Ltd.

Criteria for a protection visa

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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.

the applicatns Claims and evidence

Applicant’s Identity

1. The applicant stated in her application for a Protection visa that she was born on [Date] in [Town], Eastern Gojam, Ethiopia.[1]

   [1]    Protection visa application form, Dept file [Reference 1], Doc ID no: 9591718

2. The applicant provided to the Department a copy of the biodata page of her Ethiopian passport together with copies of her Ethiopian driver’s licence and birth certificate.[2] There is no evidence to suggest these are bogus documents and, as such, the Tribunal accepts the applicant’s identity.

   [2]    Applicant’s passport, Dept file [Reference 1], Doc ID no: 9591718

3. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the document provided by the applicant, the Tribunal finds that she is a citizen of Ethiopia and as such her protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively.

Applicant’s Migration History 

1. The applicant first arrived in Australia [in] June 2013 on a [Student] visa granted on 14 May 2013. She departed Australia once to travel back to Ethiopia to see her child and family [in] December 2015, returning shortly after [in] January 2016. The applicant applied for protection on 22 September 2016 before her student visa expired on 26 March 2017 and was granted the associated Bridging Visa A on 26 September 2016[3]. Prior to arriving in Australia, the applicant had not travelled outside of Ethiopia[4].

Applicant’s Claim for protection

[3]    Department Movement Details, Tribunal file 1806452, Doc ID no: 9543545

[4]    Protection visa application form, Dept file [Reference 1], Doc ID no: 9591718

1. The applicant first submitted claims for protection when she applied to the Department for Protection on 22 September 2016[5]. The applicant’s claims are as follows:

   [5]    Protection visa application form, Dept file [Reference 2], Doc ID no: 7394797

   Why did you leave that country(s)?

   ‘My husband had a visa to pursue [study] in Australia which has given me an opportunity to join him. Further detail on enclosed Statement of Claim paragraph 12-13).’

   What do you think will happen to you if you return to that country(s)?

   ‘I fear that, if I return to Ethiopia, I will be subject to further persecution and substantial discrimination which will threaten my life, liberty and security. The government has a history of arresting opposition party members and leaders at Bole International Airport in Addis Ababa which is the country’s only airway route entry/arrival point. I am highly concerned that I will be arrested at this airport upon arrival by the government security forces. As has been the case with my party leaders and members, I will then be subject to either:

   •       indefinite extrajudicial detention,

   •       charged with terrorism and imprisoned for life,

   •       extrajudicial punishment including execution

   Further detail on Statement of Claim enclosed paragraph 15-21)’

   Did you experience harm in that country(s)?

   ‘Yes. I am a member of a popular opposition party called Semayawi (Blue) party. The government is aware of my involvement in the Semayawi opposition party. The government has already subjected me to substantial discrimination by forcing me to resign from my employment and prevented me from seeking further employment opportunities. I was also subject to arbitrary arrest and detention which saw me imprisoned for 2 month and 2 weeks without any trial.

   Further detail enclosed in Statement of Claim paragraph 5-11)’

   Did you seek help within the country(s) after the harm?

   ‘No. The current government of Ethiopia has been in power since 1991. It is an authoritarian establishment with track record of suppression, human rights violation, ethnic discrimination and corruption amongst other things. The government has subjected me to substantial discrimination and persecution for exercising my fundamental right to express my political views, coordinate and participate in peaceful assembly and demonstrations.

   There is no body or organization I could seek help from in Ethiopia. The government is in total control and there is nothing any body can do to prevent the government persecute me.’

   Did you move, or try to move, to another part of that country(s) to seek safety?

   ‘No. The government does surveillance and closely monitors those involved in any sort of political opposition. It is rarely possible to remain undercover and become an active member of a political party in Ethiopia. Changing location of residence does not prevent the government from harassing and persecuting me as it closely monitors my movement.

   Further information on enclosed Statement of Claim paragraph 5-7.’

   Do you think you will be harmed or mistreated if you return to that country(s)?

   ‘Yes. The government of Ethiopia will subject me to:

   ·detention and arrest,

   ·torture or cruel treatment,

   ·confiscation of assets,

   ·deprivation of means of earning a livelihood,

   ·constant surveillance,

   ·extrajudicial punishment including execution

   Background and further detail provided on enclosed Statement of claim’

   Do you think the authorities of that country(s) can and will protect you if you go back?

   ‘No. This is not applicable given I am persecuted by the government of my country, and I can not seek help from the very State persecuting me.’

   Do you think you would be able to relocate within that country(s)?

   ‘No. The country is controlled by the government. The government carries out constant surveillance and is aware of my political involvement. Relocating within the country will not make any difference as long as I remain politically active. Enclosed Statement of Claim provides background and examples.’

2. The delegate summarised the applicant’s claims as[6]:

   ·     She is a separated (as of April 2017) woman of Amhara ethnicity, with one child.

   ·     Apart from her husband who resides in [Country], her parents, siblings and child all reside in Ethiopia; with the majority in the capital Addis Ababa.

   ·     She fears harm on return to Ethiopia from the state authorities due to Amhara ethnicity, her political activities in Australia and being a [member] of the Semayawi Party (Blue Party) since [Year 4].

   ·     While in Australia she has attended protests in August, September and October 2016, and has raised funds and awareness regarding the Semayawi Party in secret.

   ·     Due to being the [Official position] for the Semayawi Party from July to December [Year 4], she was detained by the Ethiopian authorities from [Date 1, Month 1] 2013 until [Date 2, Month 3] 2013.

   ·     On her release, due to the psychical and psychological trauma she experienced, she decided to travel to Australia with her son, in order to flee Ethiopia. Prior to her detention she was planning to remain in Australia and not reunite with her husband.

   ·     Due to her Semayawi Party membership, her immediate family in Ethiopia have been targeted and detained by the authorities from 2013 until December 2017. She was not aware of these targeting until December 2017, stating this was the reason why she did not inform the department until just prior to interview.

Applicant’s evidence

[6]    Department decision record, AAT file 1806452, Doc ID no: 4114578

1. The applicant’s evidence was that she was born on [Date] in [Town], Eastern Gojam, Ethiopia.  Her mother, father, [sisters] and [brothers] all continue to reside in Ethiopia. Her father worked in [an] industry and her mother was a home maker. The applicant claims that she can speak, read and write in Amharic and English. In addition, she claims to be of Amhara ethnicity and an Orthodox Christian[7].

   [7]    Ibid

2. The applicant was educated in Ethiopia.  The applicant completed school in [Year 1] having attended [Town] Elementary & Junior School and the [Town] Senior Secondary School. The applicant then attended [University 1]. She was awarded bachelor’s degree in [Subject] in [Year 2]. ^[8]   

   [8]    Protection visa application form, Dept file [Reference 1], Doc ID no: 9591718

3. From [Year 2] to [Year 3] the applicant worked [as an Occupation 1] in [District] of East Gojam zone.  

4. The applicant was married in [Town], on or about [Date, Year 3]. The applicant separated from her ex-husband in or about April 2017[9] and are now divorced. Her ex-husband currently works as an [Occupation 2] and lives in [Country]. The applicant has a son, [Master A], who was born in [Year 4]. He continues to live in Ethiopia with his grandmother, the applicant’s mother. 

   [9]    Form 1022 Notification of changes in circumstances, department file [Reference 1], Doc ID no: 9591718

5. The applicant’s evidence was that when she was at university, she became concerned about the oppressive policies and abuse of human rights of the Ethiopian government and as a result became politically active. After university from [Year 2] to [Year 3] the applicant worked with the government as [an Occupation 1]. While working as [an Occupation 1] the applicant would meet regularly with a group of people to discuss their political views. The applicant claims that because of being involved with the political group, she was reallocated to a remote part of the country for work. When the applicant questioned why she had been assigned to a remote area of the country she was informed that there was no work for her, and her employment was terminated. The applicant was not provided a reference and could not find alternative employment. As a result, she started a small business.

6. While she was operating the business, she became involved with the people who established the Semayawi Party (‘the Blue party’) at that time. The applicant’s evidence was that she knew the leaders of the party in her area in which she born. The applicant claimed that she was a founding member of the party in her local area and that regular meetings were be conducted at a local residence located next to the [ Hospital] in [City], Gojaam that belonged to a person known to the applicant as [Ms B]. The applicant stated that Samuel Aweke (the founder of the Semayawi Party)[10], and a lady called [Ms C] as people who attended the meetings. The applicant claimed that her role in the party at the local level was to recruit women into the party. Her evidence was that the President of the local branch would communicate with the main branch (head office) for the purpose of recruitment and implementing the party message and activities.

   [10]  Amnesty International, Amnesty International Report 2015/16 - Ethiopia, 24 February 2016, available at: >

   The applicant’s evidence was in late 2012 the authorities were arresting people who it was believed were against the government including members of opposition parties. As a result, she moved to Addis Ababa with her husband. The applicant’s husband was awarded a [scholarship] with [University 2] and travelled to Australia in or about late December 2012 or early January 2013 to commence his studies.

7. On or about [Date, Month 1] 2013 the applicant was detained by the authorities. Her evidence was that the police came to her house in Addis Ababa at night and arrested her without court papers or a warrant because of she was an active member of the Blue Party. At the time she was detained, her husband was in Australia and her son was [Number] months old. Her son remained with her mother while she was detained.  The applicant’s evidence was that she was detained until [Month 3] 2013 without formal charge having been made against her. Her evidence was that she was held in a large cell with a lot of other people. She stated that the cell was crowed and dirty. They were not provided much food and only given one glass of water per day.  Her evidence was that she was released upon her father paying an amount between ETB5,000.00 and ETB10,0000. She was given a warning not to participate in any future protests.

8. The applicant’s evidence was that she had applied for a passport in late 2012 because it was her intention to visit her husband while he was in Australia. Her evidence was that she applied for her passport prior to her being detained. However, the passport was dated [Month 2] 2013, during the time she claims to have been detained. However, the applicant’s evidence was that her passport was dated [Month 2] 2013, because that is the date it had been prepared by the Department and was ready to be collected. Her evidence was that she did not pick up her passport until [Month 3] 2013, after she had been released from detention.

9. The applicant’s evidence was that after she had been released from detention she was stressed and traumatised and so travelled to Australia with her son to be with her husband.  The applicant’s evidence was that she expected a change in Ethiopia and did not expect to stay permanently in Australia.

10. In September 2014, the applicant’s ex-husband returned to Ethiopia as part of his [studies]. He convinced the applicant to remain in Australia to continue to recover and remain relaxed. He claimed that the trip was to be for a short period and that he should take their son to give him an opportunity to get acquainted with his grandparents and extended family. However, the applicant’s ex-husband returned to Australia [in] February 2015 without her son, leaving him in Ethiopia without the applicant’s consent. Her evidence was that her husband claimed that they could not afford day care and that she had to continue to work. 

1. The applicant returned to Ethiopia [in] December 2014 to visit her family and her son. She returned to Australia [in] January 2016.  The applicant’s evidence was that when she returned, she limited her movements remaining at her father’s home and not traveling out to see friends. Her evidence was that soon after she left her father’s home was raided by the authorities.  Their belongings such as computers etc were confiscated and the family, including her [brothers], were interrogated several times. The applicant claims that her family continue to be targeted by the authorities. The applicant’s evidence was at the time her relationship with her husband was difficult. As a result, she did not return to Australia with her son as she did not want it to be the cause of their relationship breakup. 

2. The applicant claims that if she is returned to Ethiopia she will be seriously or significantly harmed because of her involvement with the Semayawi Party and as a person opposed to the ruling Government    

1. The applicant’s evidence is that she is opposed to the current government in Ethiopia. Her evidence is that she is on a committee which from time to time arranges demonstrations within the Ethiopian community. The applicant claims that she is politically active by attending a regular meeting with friends to express their views. In addition, she claims that she has made antigovernment posts on [Social media].

2. The applicant’s evidence was that in or about 2014 her family had been approached by the authorities over the payment of income tax in Ethiopia for the construction of a dam. In a meeting attended by other businesspeople and the police, the applicant’s father raised his voice against the government. As a result, the police approached the applicant’s father after the meeting accusing him of being against the government. Upon discovering that he was related to the applicant, the authorities detained him for a longer period. The applicant claims that during the 2015 election the government detained her brother for two weeks out of fear of him rising against the government.

3. The applicant’s evidence was that she is no longer a member of a political party. However, she claims that if she is returned to Ethiopia, she will not be able to express her views freely or openly. She claims that she will go against the current government in Ethiopia by joining any party that was aligned to her views. The applicant claims to be following the Amhara National Movement and a supporter of Ano Fano. Then applicant claims that if she is returned to Ethiopia, she will express her views and will be detained.

4. Finally, the applicant claims that as a Christian there is a real chance or a real risk that she will be seriously or significantly harmed if returned to Ethiopia. 

Applicant’s Documents   

1. The applicant has provided the following material to the Department:

   (a)Applicant’s statement of claim, undated.[11]

   [11]   Dept file [Reference 1], folios 49-54

   (b)Screenshots of the Semayawi Party’s Facebook page.[12]

   [12]   Dept file [Reference 1], folios 55-57

   (c)Country information: Amnesty International news article titled “Ethiopia: Civil society groups urge international investigation into ongoing human rights violations” dated 30 August 2016.[13]

   [13]   Dept file [Reference 1], folios 58-60

   (d)Country information: United Nations Human Rights “Press briefing notes on Ethiopia and Thailand”, dated 19 August 2016.[14]

   [14]   Dept file [Reference 1], folio 61

   (e)Country information: Ethiopian Herald newspaper article titled “Highlights of Premier’s briefing on current situation” dated 2 September 20.[15]

   [15]   Dept file [Reference 1], folio 62

   (f)Country information: Aljazeera news article titled “Ethiopia protests: Fire and gunshots reported at jaii” dated 4 September 2016.[16]

   [16]   Dept file [Reference 1], folios 63-65

   (g)Country information: Amnesty International news article titled “Ethiopia: Dozens killed as police use excessive force against peaceful protesters” dated 8 August 2016.[17]

   [17]   Dept file [Reference 1], folios 66-67

   (h)Country information: Aljazeera news article titled “Ethiopia says UN observers not needed as protests rage” dated 11 August 2016.[18]

   [18]   Dept file [Reference 1], folios 68-69

   (i)Country information: Human Rights Watch news article titled “Ethiopian Forces Kill ‘Up to 100’ Protesters” dated 13 August 2016.[19]

   [19]   Dept file [Reference 1], folios 70-72

   (j)Country information: Human Rights Watch news article titled “Ethiopia’s Bloody Crackdown: The Case for International Justice” dated 18 August 2016.[20]

   [20]   Dept file [Reference 1], folios 73-75

   (k)Country information: BBC news article titled “What is behind Ethiopia's wave of protests?” dated 22 August 2016.[21]

   [21]   Dept file [Reference 1], folios 76-79

   (l)Country information: Human Rights Watch World Report 2016: Ethiopia, extracted on 17 September 2016.[22]

   [22]   Dept file [Reference 1], folios 80-81

   (m)Country information: UN “Consideration of reports submitted by States parties under article 19 of the convention - Concluding observations of the Committee against Torture” dated 1-19 November 2010 .[23]

   [23]   Dept file [Reference 1], folios 82-86

   (n)Country information: Human Rights Watch World Report 2014: Ethiopia, extracted on 17 September 2016.[24]

   [24]   Dept file [Reference 1], folios 87-88

   (o)Country information: Amnesty International news article titled “Ethiopia: Multiple arrests in major crackdown on government critics” dated 27 April 2014.[25]

   [25]   Dept file [Reference 1], folios 89-90

   (p)Country information: Amnesty International Ethiopia 2015/2016 Annual Report, extracted on 17 September 2016.[26]

   [26]   Dept file [Reference 1], folios 91-93

   (q)Country information: Semayawiparty.org article titled “Blue Party leaders and members are arrested in the town of Gonder” dated 17 March 2014.[27]

   [27]   Dept file [Reference 1], folio 94

   (r)Country information: Amnesty International news article titled “Ethiopia: Release opposition politician held for Facebook posts” dated 6 May 2016.[28]

   [28]   Dept file [Reference 1], folios 95-96

   (s)Country Information: The Advocates for Human Rights report titled “Ethiopia: Violations of the rights of the disadvantaged ethnic groups protected by the International Covenant on Economic, Social and Cultural Rights 48th session of the United Nations Committee on Economic, Social and Cultural Rights” dated 30 April-18 May 2012.[29]

   (t)Country information: Human Rights Watch World Report 2015: Ethiopia, extracted on 18 September 2016.[30]

   (u)Applicant’s Semayawi (Blue) Membership Card issued on [Date, Year 4], accompanied by English translation[31].

   (v)Letter confirming the applicant’s party membership issued on [Date, Year 5], accompanied by English translation[32].

   (w)Letter confirming the applicant’s detention between [Date 1, Month 1] 2013 and [Date 1, Month 3] issued by the Federal Democratic Republic of Ethiopia In the Ministry of Federal Affairs on [Date 2, Month 3] 2013, accompanied by English Translation[33].

   (x)Certified copy of applicant’s birth certificate issued by the City Government of Addis Ababa [in] February 2013[34].

   (y)Certified copy of applicant’s Ethiopian passport, with expiry date [2018][35].

   (z)Representative’s submissions dated 19 September 2016[36].

   (aa)Completed form 1022 - Notification of changes in circumstances, advising the applicant’s separation from her husband, dated 29 January 2018[37].

   (bb)List of information that was unavailable to the applicant at the time of lodging her Protection visa application, undated[38]

   [29]   Dept file [Reference 1], folios 97-99

   [30]   Dept file [Reference 1], folios 100-101

   [31]   Dept file [Reference 1], folios 104-105

   [32]   Dept file [Reference 1], folios 102-103

   [33]   Dept file [Reference 1], folios 106-107

   [34]   Dept file [Reference 1], folio 108

   [35]   Dept file [Reference 1], folio 109

   [36]   Dept file [Reference 1], folios 110-113

   [37]   Dept file [Reference 1], folios 125-127

   [38]   Dept file [Reference 1], folio 128

2. The applicant submitted the following material to the Tribunal:

   (a)Protection visa refusal notification letter from the Department dated 28 February 2018.[39]

   [39]   AAT file 1806452, Doc ID no: 4114577

   (b)Delegate’s decision record dated 28 February 2018.[40]

   [40]   AAT file 1806452, Doc ID no: 4114578

   (c)Applicant’s statutory declaration dated 11 January 2022, as part of a priority request received by the Tribunal on 12 January 2022.[41]

   [41]   AAT file 1806452, Doc ID no: 9320967

   (d)Psychologist report issued by clinical psychologist [Dr D] on 24 December 2021, as part of a priority request received by the Tribunal on 12 January 2022.[42]

   [42]   Ibid

   (e)Applicant’s child’s Ethiopian passport issued [in] 2013 and passport stamp for the date when he left Australia, as part of a second priority request received by the Tribunal on 10 February 2022.[43]

   [43]   AAT file 1806452, Doc ID no: 9425185

   (f)Personal statement made by the applicant’s mother on 4 February 2022, accompanied by a copy of her Ethiopian resident ID card with English translation, as part of a second priority request received by the Tribunal on 10 February 2022.[44]

   [44]   Ibid

   (g)Screenshots of [Social media] communication between the applicant and her ex-husband in relation to their child, as part of a second priority request received by the Tribunal on 10 February 2022.[45]

   [45]   Ibid

   (h)Representative’s submissions dated 8 February 2022, as part of a second priority request received by the Tribunal on 10 February 2022.[46]

   [46]   Ibid

   (i)[Social media] screenshots showing the applicant’s ex-husband’s current location, as part of a second priority request received by the Tribunal on 10 February 2022.[47]

   [47]   Ibid

   (j)Email submissions made by the applicant’s representative on 24 February 2022 in support of a third priority request made to the Tribunal[48].

   [48]   AAT file 1806452, Doc ID no: 9473056

   (k)[Organisation] support letter, issued by [E], dated 4 April 2022.[49]

   [49]   AAT file 1806452, Doc ID no: 9614201

   (l)Applicant’s statutory declaration dated 30 March 2022.[50]

   [50]   AAT file 1806452, Doc ID no: 9610066

   (m)[Social media] screenshots of the applicant’s personal profile, as evidence of her political involvement and religious views, accompanied by English translation of the applicant’s [Social media] posts.[51]

   [51]   Ibid

   (n)Representative’s submissions in support of the application, dated 31 March 2022.[52]

   [52]   Ibid

   (o)Country information: Africa News article titled “Gloom from Ethiopia’s 2019: Plane crash, foiled coup, assassinations, deaths, etc” dated 11 March 2020.[53]

   [53]   Ibid

   (p)Country information: Trumpet Brief news article titled “Will Ethiopia survive 2020?” dated 2 January 2020.[54]

   [54]   Ibid

   (q)Country information: Crisis Group Twitter post and article titled “Our list of 10 conflicts to watch in 2020” dated 29 December 2019.[55]

   (r)Country information: Assis Standard Twitter post and news article titled “Ethiopia: Despite message from Ethiopian Islamic Affairs Supreme Council on the unavailability of protest rallies after Friday Prayers today, massive rallies took place in several places denouncing last week’s burning of Mosques & businesses” dated 27 December 2019.[56]

   (s)Country information: Amnesty International news article titled “Ethiopia: Government must protect victims of escalating ethnic attacks” dated 8 June 2018.[57]

   (t)Country information: Amnesty International news article titled “Ethiopia: over 50 ethnic Amhara killed in attack on village by armed group” dated 2 November 2020.[58]

   (u)Country information: Amnesty International report titled “Beyond Law Enforcement – Human rights violation by Ethiopian security forces in Amhara and Oromia”, undated.[59]

   (v)Country information: Serbian Orthodox Church news article titled “Russian Church raising awareness about attacks on Ethiopian Christians” dated 8 October 2020.[60]

   (w)Country information: The World news article titled “Uptick in church burning raises alarm in Ethiopia” dated 16 September 2019.[61]

   (x)Country information: Addis Standard news article titled “In-depth analysis: spate of targeted attacks, excessive use of force by security in Oromia leave death trails, destruction” dated 15 July 2020.[62]

   (y)Country information: Reuters report titled “How ethnic killings exploded from an Ethiopian town” dated 7 June 2021.[63]

   (z)Further submissions dated 28 October 2022.

   [55]   Ibid

   [56]   Ibid

   [57]   Ibid

   [58]   Ibid

   [59]   Ibid

   [60]   Ibid

   [61]   Ibid

   [62]   Ibid

   [63]   Ibid

COUNTRY INFORMATION

1. In accordance with Ministerial Direction No. 84 of 24 June 2019 made under s.499 of the Act, the Tribunal also had regard to the country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT). The Tribunal has referred to the latest DFAT report on Ethiopia dated 12 August 2020 (the DFAT Report’) marked as ‘Annexure A’ to this decision.

CONSIDERATION OF Claims and evidence

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Credibility

1. When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.

2. The mere fact that a person claims fear of persecution for a 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim,[64] nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[65]

   [64] s 5AAA Migration Act 1958.

   [65] 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.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[66] Care must be taken that the approach does not result in an exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

   [66] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p.482

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[67] However, such a benefit should 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 accepted facts

[67] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.

1. Having considered the applicant’s evidence, the Tribunal accepts and finds that the applicant:

   (a)was born on [Date] in [Town], Eastern Gojam, Ethiopia.  

   (b)has a mother, father, [sisters] and [brothers] who all continue to reside in Ethiopia.

   (c)can speak, read and write in Amharic and English.

   (d)is Amhara ethnicity and an Orthodox Christian.[68]

   (e)was educated in Ethiopia having completed school in [Year 1] and attended [University 1] where she was awarded a Bachelor’s Degree in [Subject] in [Year 2]. ^[69]  

   (f)Worked as [an Occupation 1] in [District] of East Gojam zone from [Year 2] to [Year 3],.  

   (g)was married in [Town] on or about [Date, Year 3] and is now divorced.

   (h)Has an ex-husband who currently works as an academic and lives in [Country].

   (i)has a son, [Master A], who was born in [Year 4] and currently resides in Ethiopia with his grandmother, the applicant’s mother. 

The applicant’s relevant grounds

[68]  Ibid

[69]  Protection visa application form, Dept file [Reference 1], Doc ID no: 9591718

1. The applicant submits that her claims fall within the scope of s 5J(1)(a) of the Act based on her race as an ethnic Amhara, her actual and imputed political opinion, and her religion as an Orthodox Christian.

2. The Tribunal is required to apply the applicant’s claim in relation to her race as an ethnic Amhara in the ‘widest sense.’[70] The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides a guide as to race as a well-founded fear of persecution.[71] It states:[72]

   ‘68.Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.

   ………………..

   70. The mere fact of belonging to a certain racial group will normally not be enough to substantiate a claim for refugee status. There may, however, be situations where, due to particular circumstances affecting the group, such membership will itself be sufficient ground to fear persecution.’

   [70] Calado v MIMA (1998) 81 FCR 450 at 455.

   [71]   Chan v MIEA (1989) 169 CLR 379 at 392, per Mason CJ.

   [72] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paras 68-70.

3. In this case, based on the applicant’s evidence, the Tribunal has accepted that she ethnic Amhara. Accordingly, the Tribunal accepts that the applicant’s claims falls within the scope of s 5J(1)(a) of the Act by reason of her race.

4. In addition, the applicant claims that she will be persecuted upon her return to Ethiopia by reason of her actual and imputed political opinion. That is, as a former member of the Semayawi Party and as a person who is opposed to the Ethiopian government.

5. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[73] notes that ‘[H]holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that she has a fear of persecution for holding such opinions.’ That is, that applicant must hold opinions not tolerated by the authorities and such opinions will come to the notice of the authorities or will be attributed to the applicant by the authorities upon her return to Ethiopia.

   [73] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraphs 80-86; Chan v MIEA (1989) 169 CLR 379 at 392.

1. The Full Federal Court in V v MIMA[74] observed in relation to a person’s political opinion that:

   (a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[75]

   (b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[76]

   (c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[77]

   (d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts reflective of an unstated political agenda will be the holding of a political opinion;[78]

   (e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[79]

   [74] V v MIMA (1999) 92 FCR 355 at 363. It is noted that the Court’s observations were made in the context of dealing with the Convention.

   [75] ibid.

   [76] ibid.

   [77] V v MIMA (1999) 92 FCR 355 at 367.

   [78] ibid.

   [79] V v MIMA (1999) 92 FCR 355.

2. The applicant’s fear of persecution based on her political opinion is therefore a question of fact, having regard to all the circumstances.[80] In this case, the applicant submits[81] that she has a well‑founded fear of persecution by reason of actual political opinion as an active member of the Semayawi Party and imputed political opinion as a person who is opposed to the Ethiopian government. On the evidence presented to the Tribunal by the applicant and the supporting statements provided, the Tribunal accepts that her claim falls within the scope of s 5J(1)(a) of the Act by reason of her actual and/or imputed political opinion.

   [80] Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) at 4.

   [81] Representative’s submissions dated 15 February 2021.

3. The scope of ‘religion’ within the context of the Convention was considered in MIMA v Darboy[82] in which the Federal Court referred to the following passage from the High Court’s judgment in Church of the New Faith:

   The canons of conduct which he accepts as valid for himself in order to give effect to his belief in the supernatural are no less a part of his religion than the belief itself. Conversely, unless there be a real connexion between a person’s belief in the supernatural and particular conduct in which that person engages, that conduct cannot itself be characterised as religious.

   [82] [1998] FCA 931 (Moore J, 6 August 1998). (See also Wang v MIMA (2000) 105 FCR 548 and Liu v MIMA [2001] FCA 257 (Cooper J, 16 March 2001) at [19]–[22])

4. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status provides an overview of the scope of ‘religion’[83] as:

   71‘The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience and religion, which right include the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.

   72Persecution for “reasons of religion” may assume various forms, e.g. prohibition of membership of a religious community, of worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community.

   73Mere membership of a religious community will normally not be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground.’

   [83]   UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at [71]–[73] >

   The question of whether an applicant has a well-founded fear of being persecuted for reasons of religion may arise in a variety of factual circumstances and may include the application of generally applicable religious-based laws, departing from orthodox religious beliefs or transgressing social mores, conversion, apostasy and mixed marriage.[84]  It will often depend on the motivation of the persecutor or in circumstances where any fear is caused by the operation of generally applicable laws, whether there is a persecutory intent or nature to those laws or to the way they are applied.[85]

   [84] To be an apostate does not require conversion from one faith to a different faith but does require abandonment or rejection of the first faith: WZAOO v MIAC (2012) 134 332 at [12], citing W161/01A v MIMA [2002] FCA 285

   [85]   VCAD v MIMIA [2004] FCA 1005 per Kenny J, at [35]

5. It has been held that persecution for reasons of religion will often involve prohibition against, restrictions on, or punishment for, a particular religious practice.[86] It requires an assessment in the light of all the circumstances, including, where relevant, the ‘central tenets’ of the religion, how an applicant is likely to manifest his or her religious beliefs and the likelihood of that manifestation attracting a persecutory reaction from the authorities.[87]

   [86]   Wang v MIMA (2000) 105 FCR 548; Woudneh v Inder (unreported, Federal Court of Australia, Gray J, 16 September 1988); MIMA v Zheng [2000] FCA 50 (per Hill, Whitlam & Carr JJ, 10 February 2000)

   [87]   Pei Lan He v MIMA [2001] FCA 446 (Ryan J, 23 April 2001)

6. In this case, the applicant claims that she will be persecuted if she is returned to Ethiopia as an Orthodox Christian. The applicant provided the Tribunal with little evidence in relation to the persecution she claims she will suffer as an Orthodox Christian upon her return to Ethiopia. In circumstances where the available country information[88] states that the risk of official and societal discrimination or violence is low in Ethiopia the Tribunal has found below that there is no real chance she will be seriously harmed if she is returned to Ethiopia by reason of her religion. Nevertheless, the Tribunal accepts that her claim based on her religion falls within s 5J(1) of the Act.

The applicant’s well-founded fear

[88]   DFAT Report at p.27

1. Section 5J of the Act states that for the purposes of application under the Act, a person has a well‑founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country. In Chan v MIEA[89] the Court held that a ‘well‑founded fear’, for the purposes of the Convention, involved both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[90]

   [89] (1989) 169 CLR 379 at 396.

   [90] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. However, to hold a ‘well-founded fear of persecution’ on an objective basis, the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J stated:[91]

   “Well‑founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.

   [91] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397.

1. In MIEA v Guo, the Court stated that:[92]

   Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well‑founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.

   [92] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

2. In this case, the applicant claims that, if she is returned to Ethiopia, there is a real chance she will suffer serious harm by the authorities by reason of her political opinion and/or her ethnicity. For the reasons detailed below, the Tribunal has accepted that the applicant has a well‑founded fear of persecution on an objective basis if she is returned to Ethiopia.

The applicant’s claims as a refugee

Applicant’s political opinion.  

1. The applicant claims that if she is returned to Ethiopia, she will be seriously harmed by reason of her political opinion. The applicant claims that because of her political opinion she was subject to discrimination and serious harm while employed as [an Occupation 1] and later as an active member of the member of the Semayawi Party.

2. The country information reports that the Semayawi party was an opposition party in Ethiopia formed in early 2012.[93] The party was formed following the protests after the 2015 elections in which approximately 200 people were shot, beaten, and strangled to death in a "massacre" by the security forces.[94]  The party’s vision was ‘to see an Ethiopia where all democratic rights are respected, where there is good governance and rule of law which works responsibly and accountably for the fulfillment of the wishes of the people, where economic and social prosperity reigns, that is the pride of its citizens, that contributes its own share to good relations between the world's people.’[95] According to Amnesty International, the Semayawi party spoke out against the imprisonment of opposition members and journalists as well as "government repression of the peaceful Muslim protest movement, and the detention and prosecution of key figures of the movement".[96]

   [93]  Immigration and Refugee Board of Canada, Ethiopia: Semayawi Party (Blue Party), including origin, mandate, leadership. Structure, legal status, and election participation; party membership; treatment of party members and supporters by authorities, 17 October 2014, ETH104974.E, available at:   Ibid, The Guardian ‘Ethiopian government blocks report of massacre by its forces’ 19 October 2006 by Chris McGreal; Immigration and Refugee Board of Canada, Ethiopia: Semayawi Party (Blue Party), including origin, mandate, leadership. Structure, legal status, and election participation; party membership; treatment of party members and supporters by authorities, 17 October 2014, ETH104974.E, available at: ibid

3. The applicant’s evidence was at university she became politically active because she was opposed to the oppressive policies and human rights abuses of the Ethiopian government.  In addition, while working as [an Occupation 1] she met regularly with a group of people to discuss their political views. The applicant claims that because of her political views she was reallocated and eventually forced from her position. The country information[97] states that political freedoms were significantly restricted prior to 2018. Members of opposition groups, human rights activists and independent commentators opposed to the government policies were regularly harassed and detained. People who were not a member of the ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) reportedly faced discrimination in the public sector, including impediments to any career advancement. Based on the applicant’s evidence and the reported country information the Tribunal accepts that she was politically active at university and that she was discriminated at work as claimed.

   [97]   DFAT Report at p.28

4. The applicant having been forced from her job as [an Occupation 1] claimed that she was not able to find alternative employment and as a result commenced a business. While operating the business she became involved with the people who established the Semayawi Party. The applicant’s evidence was that she was acquainted with the party leaders from the area in which she born and attended meetings conducted at a local residence located next to the [City] Hospital in [City], Gojaam.  The applicant’s evidence was that that Samuel Aweke and Yeshewas Asefea attended the meetings from time to time. The country information states that Samuel Aweke was the founder of the Semayawi Party[98] and describes Yeshewas Asefea as a party leader.[99]  In June 2015 Samuel Aweke was murdered in Dembre Markos while a candidate for the Semayawi Party at the Federal election. His murder occurred after criticising the behaviour of local authorities, the police and other security official in an article published in the party’s newspaper, Negrere Ethiopia.[100] In July 2014 Yeshewas Asefea was arrested, and held in the Maikelawi Federal Police Detention Centre in Addis Ababa on terror charges.[101] It is reported[102] that ‘terror’ charges are "commonly used as a pretext to put dissenters behind bars in Ethiopia." Yeshewas Asefea is now the chairperson of the Ethiopian Citizens for Social Justice. 

   [98]  Amnesty International, Amnesty International Report 2015/16 - Ethiopia, 24 February 2016, available at: Immigration and Refugee Board of Canada, Ethiopia: Semayawi Party (Blue Party), including origin, mandate, leadership. Structure, legal status, and election participation; party membership; treatment of party members and supporters by authorities, 17 October 2014, ETH104974.E, available at: Amnesty International ‘Amnesty International Askes Ethiopia to Investigate Suspicious Murders and Human Rights Violations’ dated June 23, 2015. ibid

   [102] ibid

5. The applicant’s evidence was that her role within the party was to assist in [an administrative task] in her local area. The applicant’s evidence was that in late 2012 she moved to Addis Ababa because the authorities were arresting people believed to be opposed to the government including members of opposition parties. Based on the applicant’s evidence and the available country information the Tribunal accepts that the applicant was an active member of the Semayawi Party as claimed.  

6. On or about [Date 1, Month 1] 2013 the applicant claims that she was detained by the authorities because of her activities with the Semayawi Party. The applicant claims that she was arrested at her home, at night and without a warrant.  She was held in detention until [Month 3] 2013, only being released after payment of a bribe by her father to security officials. The country information[103] reports that in 2012 and 2013 Ethiopian authorities continued to arrest members of political opposition parties, and other perceived or actual political opponents. Arbitrary detention was widespread. It was reported by relatives that some people disappeared after arrest. The authorities targeted families of suspects, detaining and interrogating them with the use of unofficial places of detention being reported.[104] It is reported[105] that the Semayawi Party staged several protests in 2013-2014 during which demonstrators and organizers were arrested and detained. The Semayawi party claimed that the government arrested large groups of their members and held them without charge. Therefore, based on the applicant evidence and the available country information the Tribunal accepts and finds that the applicant was detained in 2013 because of her membership and association with the Semayawi Party as claimed.

   [103] Amnesty International, Amnesty International Annual Report 2013 - Ethiopia, 23 May 2013, available at: ibid

   [105] Canada: Immigration and Refugee Board of Canada, Ethiopia: Semayawi Party (Blue Party), including origin, mandate, leadership. Structure, legal status, and election participation; party membership; treatment of party members and supporters by authorities, 17 October 2014, ETH104974.E, available at: >

   The applicant initially arrived in Australia [in] June 2013. The applicant returned to Ethiopia [in] December 2015 for approximately one year, arriving back in Australia [in] January 2016. The applicant was not detained by the authorities upon her return or her departure from Ethiopia. She was not harassed or detained by the authorities while there. It was her evidence that while in Ethiopia, she did not see friends and remained at her father’s home. Nevertheless, she claims that after her departure her father’s house was raided by the authorities. However, in circumstances where the applicant maintained a low profile, was not approached, harassed or detained by the authorities while in the country, the Tribunal finds it unlikely that the applicant’s father would be raided due to her presence. In addition, it was the applicant’s evidence that her father had been approached by the authorities about the payment of tax. Therefore, in the absence of any independent evidence as to why the authorities raided the applicant’s fathers’ home as claimed, if such a raid occurred, the Tribunal finds that the authorities were more likely to have attended her father’s home because of a taxation payment being due rather than because the applicant was in the country. As such the Tribunal does not accept that the authorities raided the applicant’s fathers’ home as claimed.

7. In addition, the applicant did not provide any evidence detailing why the authorities would detain her brothers as claimed. The applicant did not provide any details in relation to her brother’s detention including how they were perceived as a threat to the government. In addition, there was no evidence as to how their detention affected the applicant.  As such, the Tribunal does not accept that her brothers were detained as claimed.

8. In May 2019, the Semayawi Party ended when it merged with the Patriotic Genbot 7, Ethiopian Democratic Party, All Ethiopian Democratic Party, New Generation Party, Gambella Regional Movement, and Unity for Democracy and Justice party to create the Ethiopian Citizens for Social Justice party (‘ECSJ’).[106] The country information[107] reports that since Abiy Ahmed was appointed Prime Minister in 2018 the human rights situation in Ethiopia in relation to political opposition has improved. The restrictions on freedom of expression have been lifted, political prisoners have been released and terrorist designations of exiled opposition groups have been removed. As such in circumstances where the Semayawi Party no longer exists and the restrictions on freedom of expression have been relaxed, the Tribunal finds that there is no real chance the applicant will be seriously harmed by reason of her membership of the Semayawi Party.

   [106] E.N.A, Reliable News Source. ‘ERaPa merges with Ethiopian Citizens for Social Justice Party’ DFAT report at p.9

9. The applicant’s evidence is that she is opposed to the current government in Ethiopia. Her evidence was that in Australia she is on a committee which from time to time arranges demonstrations within the Ethiopian community. The applicant claims that she is politically active by attending a regular meeting with friends to express their views. There was no independent evidence provided in relation to her political involvement in Australia. In addition, she claimed that she has made antigovernment posts on [Social media]. The applicant provided the tribunal with a copy of the Semayawi Party Facebook page from 2015 on which various posts had been made. It was not clear to the Tribunal if the applicant had made any posts on the webpage. In any event the posts provided to the tribunal appeared to relate to the 2015 Ethiopian election. 

1. The applicant’s evidence was that she is no longer a member of a political party. Nevertheless, she claims that if returned to Ethiopia, she will not be able to express her views freely or openly. The applicant claims that if she is returned to Ethiopia, she will express her political views against the government and will join a political party that was aligned to her views. She claims to be a follower of National Movement of Amhara (NMA) and the militia group known as Fano. The NMA is an Amhara ethnic nationalist political party established in June 2018 in Bahir Dar, capital of the Amhara Region of Ethiopia.[108]

   [108] Borkena ‘National Movement of Amhara party officially founded in Bahir Dar.’ 10 June 2018 >

   However, it is reported that opposition parties now operate with greater freedom, despite there being some intimidation and obstacles to holding rallies due to a lack of protection. Nevertheless, in January 2020 some members of the NMA were detained in connection with an alleged coup attempt in June 2019. In December 2019, the NMA called for the release of its leaders who had been arrested on suspicion of being involved in the coup attempt. It claimed that its members had not been interrogated in relation to the killings that occurred and that it wanted the real culprits to be held accountable.[109] Amnesty International  criticized the Ethiopian government for “continued abuse of the country’s anti-terror laws” after having arrested 22 critics  arrested on charges of “terrorism” in connection with the coup that claimed the lives of three Amhara senior officials and the Chief of Staff of the Ethiopian Defence Force.[110] Nevertheless, DFAT reports[111] that people can express their political opinion without fear of arrest or prosecution. It is reported that anti-government protests are common, including a large anti-government protest in January 2020 that took place in Amhara State over the abduction of 267 ethnic Amhara university students in Oromia state.[112]

   [109] Borkena, ‘Amhara National Movement (NaMA) demands unconditional release of senior leaders’ 4 December 2019. ibid

   [111] DFAT report at p.28

   [112] ibid

2. The Tribunal notes that DFAT has assessed[113] that tolerance to political dissent has increased considerably since April 2018. Opposition parties can operate significantly more freely, and members face a low risk of harassment, arrest, and detention by virtue of their political affiliations and views. It’s assessed that Ethiopians can criticise the ruling party.[114]

   [113] DFAT Report at 29

   [114] ibid

3. Therefore, despite the applicant’s claim that she will express her views against the government if returned to Ethiopia, based on the available country information the Tribunal does not accept that there is a real chance she will be seriously harmed if returned to Ethiopia based on her political opinion.

Applicant as an Orthodox Christian

1. The applicant claims that she will be seriously harmed if she is returned to Ethiopia by reason that she is an orthodox Christian. The applicant did not provide ay specific evidence as to how she would be persecuted in Ethiopia as a result of her religion.

2. The country information[115] states that approximately 44 percent of Ethiopia's population are Ethiopian Orthodox Christians. It is prominent in the Tigray and Amhara regions, but also in the Oromia region. Muslims make up approximately 34 percent of the population while Pentecostal and other Christian groups make up approximately 19 percent. The country information[116] reports that Ethiopia has a history of religious diversity with different religions having coexisted for some time. No formal government polices exist that discriminate against people based on their religion. Religious minorities are politically active and economically engaged.[117]  Nevertheless it is reported[118] that since 2018 attacks on places of worship have increased. It is reported that 30 Churches, mostly in Muslim areas, belonging to the Ethiopian Orthodox Tewahedo Church were attacked between July 2018 and September 2019 resulting in approximately 100 deaths. Some of the attacks occurred  in Jijiga (Somali State) in August 2018 when rioting youth loyal to the former President of the Somali State torched eight Churches.[119]

   [115] Canada: Immigration and Refugee Board of Canada, Ethiopia: Treatment of members of the Ethiopian Orthodox Tewahedo Church (EOTC) by authorities (2011-July 2014), 4 August 2014, ETH104926.E, available at: DFAT Report at p.27

   [117] ibid

   [118] ibid

   [119] ibid

3. Nevertheless, despite the reported increase in attacks on places of worship, it reports that the two largest religious groups the orthodox Christian and Muslim generally respect each other’s right to practice their faith.[120] DFAT[121] has assessed that there is a low risk of official and societal discrimination or violence because of one’s religion as people are able to practice their religion openly and freely. Therefore, based on the limited evidence provided by the applicant and the available country information, the Tribunal finds that there is no real chance that the applicant will be seriously harmed if she is returned to Ethiopia on the basis of her religion as an Orthodox Christian as claimed.

Applicant an ethnic Amhara

[120] ibid

[121] ibid

1. The applicant claims that as an ethnic Amhara there is a real chance that she will be seriously harmed if returned to Ethiopia. She claims that as an ethnic Amhara she will face serious harm by both state and non-state actors.

2. The country information[122] states that the Amhara people are the second-largest ethnic group in Ethiopia (26.9 per cent of the population). While they reside predominantly in Amhara State, they are present throughout Ethiopia. In addition, Amharas are the largest ethnic group in Addis Ababa with approximately 1.3 million living in the capital.[123] Generally, Amharas are Orthodox Christian and their language, Amharic, is the official national language.

   [122] DFAT Report, p.24

   [123] ibid., per 2007 census

3. The Tigray People’s Liberation Front (TPLF) ruled Ethiopia for 27 years as the head of a four-party coalition designated the Ethiopian People’s Revolutionary Democratic Front (EPRDF).[124] Prior to the EPRDF coming to power in 1991, the Amhara governed Ethiopia. The Tigrayans held great influence over the EPRDF causing the Amhara (together with the Oromo) to feel marginalised and harbour considerable resentment toward the Tigrayans while the EPRDF were in power. In 2014 large-scale anti-government protests occurred in both the Oromia and Amhara states which prompted a declared state of emergency under which approximately twenty thousand (20,000) people were arrested, and one thousand (1,000) people killed.[125] The protests ultimately led to the resignation of Prime Minister Desalegn in February 2018.

   [124] 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', Anadolu News Agency, 22 July 2021, DFAT Report @ p.9

The DFAT Report[126] assesses that the arrests of Amharas during the 2014–18 anti-government protests reflected the then federal government’s sensitivity to political opposition rather than being ethnically motivated. The DFAT Report[127] concludes that Amharas face a low risk of official discrimination based on their ethnicity. Although it does report[128] that Amharas have been subjected to ethnic-based attacks in states where they do not constitute a majority (particularly in Benishangul-Gumuz) and face a moderate risk of violence in areas or states where they are a minority. The applicant’s evidence is consistent with the available country information in that he was detained for his perceived political opinion rather than his ethnicity. His evidence was that he was detained in or about July 2013 approximately three (3) days after his father had been detained. His evidence was that he was held for approximately three (3) months during which he was interrogated about his father’s involvement with Ginbot 7. Upon his release the applicant was required to sign a document agreeing not to be involved in any anti-government activities.

[126] ibid

[127] ibid

[128] ibid

In April 2018, Abiy Ahmed (Abiy) was elected Prime Minister. The EPRDF was merged with three of the country’s four main ethno-regional political organisations – the Oromo Democratic Party, Amhara Democratic Party and Southern Ethiopian People’s Democratic Movement – and five regional allies to form the Prosperity Party. The TPLF, which had founded the EPRDF and dominated the party and the Ethiopian state for over 25 years, rejected the merger and later withdrew entirely but continued to rule in the Tigray region.[129]

[129] 'Can Ethiopia’s election help overcome age-old structural divisions?', Tegbaru Yared, Institute for Security Studies, 30 July 2021, http//: issafrica.s3.amazonaws.com/site/uploads/psc-137.pdf

The country information reports that under Abiy’s leadership the human rights situation in Ethiopia improved.[130] Restrictions on Amhara opposition political organisations[131] were lifted resulting in a rise in Amhara nationalism.[132] Amharas are currently represented at the federal political level and in the senior ranks of the public service and the military.[133] Approximately one quarter of lower house members in federal parliament are elected from the 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.

[130] ibid

[131] ibid

[132] Op Cit @ p.23

[133] ibid

In 2020 the Abiy government postponed national elections due to the Coronavirus causing tensions between the TPLF and the Abiy government. In or about September 2020 tensions between the TPLF and the central government escalated when Tigray authorities defied the Abiy government and held its own regional election, an act that was declared illegal by the central government. In October 2020 the Abiy government cut ties with Tigray and suspended funding for the Tigray region, an action that was perceived by the northern region as a ‘declaration of war’.[134]

[134] BBC News ‘Ethiopia’s Tigray war: The short, medium and long story’ dated 29 July 2021, ww.bbc.com/news/world-africa-54964378

On 3 November 2020 the armed forces of the TPLF clashed with the federal forces when the TPLF attacked the Northern Command of the Ethiopian army stationed across Tigray, including in the regional capital Mekelle, killing soldiers and looting military hardware. On 4 November 2020, the government responded by launching a massive law enforcement operation in Tigray aimed at quelling what it considered an insurgency.[135] Three weeks after launching military operations, following the retaking of Mekelle, the Abiy government declared victory.[136] While fighting between Tigray and federal forces persisted, TPLF leaders remained  on the run.[137]

[135] Anadolu News Agency 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', , 22 July 2021, Reuters, 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, ww.reuters.com/world/tigray-war-intensifies-ethiopia-parades-new-army-recruits-2021-07-27/

[137] aljazeera 'Ethiopia regions send troops to back fight with Tigray rebels' dated 15 July 2021, ww.aljazeera.com/news/2021/7/15/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels

While designated a terrorist organisation by the Abiy government, the TPLF consider themselves the legitimate regional government of Tigray.[138] In late June 2021, Tigray forces (now rebranded the Tigray Defence Force (TDF)) regrouped and recaptured Mekelle.[139]

[138] BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’ dated 5 August 2021, ww.bbc.com/news/world-africa-58101912

[139] The Australian 'Ethiopia regions send troops to back fight with Tigray rebels', 16 July 2021, ww.theaustralian.com.au/news/latest-news/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels/news-story/8936fd7916b642a50c849e291d5547df

Abiy withdrew most troops from the region and declared a unilateral ceasefire.[140] It was reported that Amharas feared that Abiy’s June ceasefire could see them targeted. Ethnic Amharas, who had supported Abiy and his reform agenda, felt betrayed by the government’s declaration of a unilateral ceasefire. They feared that, without federal forces they may be targeted by the TPLF forces given the reports of Amhara civilians in Tigray being subjected to violence and abuse at the hands of TPLF soldiers.[141]

[140] ibid

[141] Aljazeera 'With a new mandate, Abiy can usher a new era of hope in Ethiopia', Yohannes Gedamu, 28 July 2021, >

However, the TDF rejected the ceasefire and demanded the full withdrawal of Eritrean troops and Amhara regional forces from Tigray, insisting on guarantees against federal forces returning to Tigray, and seeking an independent investigation into atrocities, access for aid and reinstatement of essential services including flights, electricity, telecommunications and healthcare.[142] In response Abiy tightened a ‘blockade’ around Tigray, choking the region’s entry points from receiving aid and cutting off power and communications infrastructure.[143] 

[142] Africa Confidential 'Fighting escalates as federal ties fray', 22 July 2021, The Economist 'In Ethiopia’s civil war, Tigrayan forces take the offensive', 31 July 2021, USAID, 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021 ', , 30 July 2021,p.2,https//:reliefweb.int/sites/reliefweb.int/files/resources/2021_07_30%20USG%20Tigray%20Crisis%20Fact%20Sheet%20%2310.pdf; The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’, , 22 July 2021, Office for the Coordination of Humanitarian Affairs (OCHA) 'Ethiopia - Tigray Region Humanitarian Update, Situation Report', 26 July 2021, https//:reports.unocha.org/en/country/ethiopia/

The TDF then launched an offensive to drive ethnic Amhara forces from disputed territory in western and southern Tigray.[144] Tigrayan forces also pushed into Afar, the region to the east of Tigray, where they said they planned to target Amhara troops fighting alongside the federal military.[145]

[144] Agence France Presse (AFP) - France 'Ethiopia regions send troops to back fight with Tigray rebels', , 16 July 2021, 20210716153308

[145] 'As Tigray war intensifies, Ethiopia parades new army recruits', Reuters, 28 July 2021, 20210728104057

In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. Amhara security forces have also shifted to fight the TDF with the government forces.[146] On 18 July 2021, Abiy declared a ‘total war’ on the TPLF – contingents of Special Forces (professional soldiers) and local militia have been sent from all of Ethiopia’s regions (save Tigray) to encircle the ‘rebel region’.[147]

[146] 'Ethiopia regions send troops to back fight with Tigray rebels', Agence France Presse (AFP) - France, 16 July 2021, 20210716153308

[147] Africa Confidential, 'No good options on the table', 22 July 2021, 20210723134934

The country information reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. It is reported[148] that thousands of people have died in the fighting with approximately two (2) million people being displaced and more than 5 million relying on emergency food aid. Further it has been reported that the military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[149] From an estimated Tigrayan population of 6 million people, 5.2 million required humanitarian assistance and some 2 million others have been displaced because of the current conflict.[150]

[148] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021,

[149] The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, ww.thenewhumanitarian.org/news/2021/7/22/Ethiopian-government-accuses-aid-Tigray-rebels-disinformation

[150] Relief web 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021 ' dated 30 July 2021, reliefweb.int/report/ethiopia/ethiopia-tigray-conflict-fact-sheet-10-fiscal-year-fy-2021.

A July 2021 report[151] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well-documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post-November 2020 conflict,[152] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[153] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[154]

[151] Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23,27, ibid

[153] The New York Times ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 Feb 2021 updated 1 April 2021 by Declan Walsh, Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia's Tigray Region’ dated 5 March 2021, ww.npr.org/2021/03/05/973624991/9-things-to-know-about-the-unfolding-crisis-in-ethiopias-tigray-region;

On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[155] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[156]

[155] The Australian 'Ethiopia threatens to deploy 'entire defensive capability' after rebel advances', dated 7 August 2021, ww.theaustralian.com.au/news/latest-news/tigray-rebels-reject-calls-to-leave-neighbouring-regions/news-story/a9d8b34317037e3c32cbb7eca62e8ae6

[156] Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, ‘Ethiopia: ‘I don’t know if they realized I was a person’: Rape and sexual violence in Tigray, Ethiopia’, Amnesty International, 10 August 2021, 20210811161042    

1. The issues faced by the Amhara people after the Ethiopian election in July 2021 primarily involve their relationship with the TPLF and Tigrayan advances on Amhara territory. On or about 28 June 2021 the TPLF re-took Mekelle and have subsequently expanded their military operations into parts of neighbouring Afar and Amhara regions. Intense fighting was reported in Ethiopia’s Amhara State where federal forces as well as Amhara regional troops were involved in fighting Tigray rebels.[157] The militia group, known as the Fano, played a key role alongside the federal military in beating back the advance through the Amhara region by the  TPLF.[158] As a result, it was reported that approximately 300,000 people were displaced in Amhara and Afar.[159] Reuters reported that Tigrayan forces pushing south and west into the neighbouring Amhara region have displaced 200,000 people[160] and 54,000 people in Afar region to the east’.[161]

   [157] BBC News 'Ethiopia's Tigray crisis: Fighting escalates despite ceasefire', 29 July 2021, 20210730141722

   [158] The Guardian,’ More than 4,000 arrested in Amhara as Ethiopia cracks down on militia’ 30 May 2022. BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’, 5 August 2021, 20210810114644

   [160] Martin Griffiths is Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Office for the Coordination of Humanitarian Affairs.

   [161] Reuters, 'Fighting displaces 200,000 in Ethiopia's Amhara region -U.N. aid chief', 4 August 2021, 20210805111323

2. Subsequently the TPLF retreated to its home region of Tigray, and in or about August 2021 the government attempted to disarm and demobilise the Fano militia. This has led to a series of clashes between the Fano and regional security forces. It is reported[162] that 200 paramilitaries were detained on suspicion of carrying out killings and engaging in other “illegal activities”. The government is reported[163] as saying that it was “taking a wide range [of] measures in [the] Amhara region against groups involved in the illegal arms trade, looting, and destroying property of individuals, killings, and creating conflict among the public”. It is reported that twenty-one Ethiopian organizations have condemned the crackdown on Fano.[164]

   [162] ibid

   [163] ibid

   [164] Borkena ‘Twenty-one organizations say Crackdown on FANO represents state terrorism’, >

   Nevertheless, on 24 August 2022 the war between the government and the TPLA resumed. The TPLF has insisted that the government has continued blockade the supply of essential services to the Tigray region, permitting only a trickle of food, medicine and fertilizers for this season's crops. It accuses the government of using hunger as a weapon of war claiming that any aid operations were pitifully insufficient.[165] As a result, the conflict recommenced with government forces together with the Fano militia mobilised a large force along the border of south Tigray.     

   [165] BBC News ‘Ethiopian civil war: Why fighting has resumed in Tigray and Amhara’ 1 September 2022, >

   It is reported[166] that a feature of the conflict has been the extrajudicial killings, rape, sexual violence, and starvation of the civilian population as a method of warfare. The use drones armed with explosive weapons has heighten the threats to the civilian population killing women and children. The atrocities have been committed by both sides of the conflict including large-scale killings of Amhara civilians, rape and sexual violence together with widespread looting and destructionof civilian property in Kobo and Chenna.[167] It is reported that while conducting searches of homes in Kobo by Tigrayan forces, they looked for weapons and pulled many men from their homes, executing them, often in front of their families.”

   [166] United nations UN News ‘Ethiopia: Civilians again mired intractable and deadly war, Human rights Council hears.’ 22 September 2022. ibid

3. It is reported[168] that arising from the conflict between the TPLF and the government, Ethiopia is experiencing widespread ethnic tensions in several regions, most of them over historical grievances and political tensions. It is reported[169] that at least 750 civilians were killed or executed in Ethiopia’s Amhara and Afar regions in the second half of 2021. In addition, it was reported[170] by the Ethiopian Human Rights Commission (EHRC) that during that same period Amhara’s were subjected to widespread abuses, including torture and gang rape and enforced disappearances.  In Hachalu 170 people were killed, some by security forces, and civilians who looted and burned Amhara businesses and homes.[171] It is reported that[172]  recently more than 200 ethnic Amhara were killed in an attack by the Oromo Liberation Army in the Ethiopia’s Oromia region, being described as one of the deadliest attacks in recent memory.[173] Finally, it is reported[174] that in a act of genocide and ethnic cleansing committed against the Amhara people in Gimbi, Oromia region 320 civilians were killed, with local sourced estimating the number killed to be 1500.

   [168] Human Rights Watch, ‘Ethiopia Events 2020.’ Aljazeera, ‘750 civilians killed in Amhara in half of 2021: Rights body.’ dated 11 March 2022 ww.aljazeera.com/news/2022/3/11/ethiopian-rights-body-750-civilians-killed-in-amhara-in-q2-2022

   [170] ibid

   [171] ibid

   [172] The Guardian ‘Ethiopia: more than 200 Amhara people killed in attack blamed on rebels.’ Dated 20 June 2022. ibid

   [174] Eurasiareview ‘Ethiopia: Mass-Atrocities, Genocide in Oromia region against Amhara People-OpEd’ 2 July 2022 by Girma Berhanuwww.eurasiareview.com/02072022-ethiopia-mass-atrocities-genocide-in-oromia-region-against-amhara-people-oped/#google_vignette

4. In addition, the EHRC also accused federal and local security forces in Amhara and Afar of widespread arbitrary detentions.[175] As a result of the destruction caused by the conflict more than 2,400 health facilities including hospitals in the two regions have ceased operation with more than 1,000 schools having been destroyed and another 3,220 damaged.

   [175] Aljazeera, ‘750 civilians killed in Amhara in half of 2021: Rights body.’ dated 11 March 2022 ww.aljazeera.com/news/2022/3/11/ethiopian-rights-body-750-civilians-killed-in-amhara-in-q2-2022

5. It is claimed[176]  that the language based federal system is responsible for the Amhara’s suffering and persecution because Amhara’s in various regional states are now considered migrants and settlers in their own country. [177]  The government has been accused of failing in its duty to protect the safety of its citizens as ethnic Amhara’s residing outside of the Amhara region have become outsiders in their own country and exposed to repeated attacks.[178] 

   [176] Eurasiareview ‘Ethiopia: Mass-Atrocities, Genocide in Oromia region against Amhara People-OpEd’ 2 July 2022 by Girma Berhanuwww.eurasiareview.com/02072022-ethiopia-mass-atrocities-genocide-in-oromia-region-against-amhara-people-oped/#google_vignette

   [177] ibid

   [178] ibid

100.The Tribunal has taken into consideration the fact that because of the conflict between the government and the TPLA there has been considerable ethnic tensions and violence in Ethiopia. While it is difficult to determine the extent of the ethnic pressure and violence in Ethiopia, based on the available country information it appears to the Tribunal that the violence conducted against the Amhara population by the Tigray forces and the Oromo militia have been conducted a systematic and discriminatory manner. As a result, the Tribunal accepts that the applicant’s fear of persecution if she is returned to Ethiopia involves systematic and discriminatory conduct.

101.Therefore, based on the applicant’s evidence and the available country information, the Tribunal accepts that there is a real chance she will be seriously harmed as an ethnic Amhara if she is returned to Ethiopia.

CONCLUSION

102.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J(1)(a) and s 5J(1)(b) of the Act and finds that the applicant is a refugee pursuant to s 5H of the Act. As such, the Tribunal finds that the applicant does satisfy the criterion set out in s 36(2)(a).

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

DECISION

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

Jason Pennell
Senior 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…