1807136 (Refugee)

1807136 (Refugee) [2022] AATA 2321 (3 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1807136
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:C. Packer
DATE:3 May 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 3 May 2022 at 12:48pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – Oromo Liberation Front Party member/activist – past political activities – anti-government political profile – mental health issues – political situation and security conditions in Ethiopia – race – Oromo and Amhara ethnicity – religion – Orthodox Christianity – particular social group – failed asylum seeker from the West – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a man aged [age], born in Ethiopia and a citizen of Ethiopia. The applicant arrived in Australia [in] July 2011, as a holder of a Partner 309 visa. He travelled on an Ethiopian passport that expired [in] 2015.
On 6 October 2015 the applicant applied for a protection visa, and on 11 December 2017 he attended an interview with a delegate.
On 9 March 2018 the delegate refused the application.
On 16 March 2018 the applicant applied for review of the delegate’s decision. On 15 June 2021 the applicant attended an in-person hearing. He was assisted by a representative. An English and Amharic interpreter was used.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in attachments. The applicant’s claims are centred on his past political activities and profile as an Oromo Liberation Front Party member/activist in Ethiopia. He also claims to fear to return because of his Oromo and Amhara ethnicity, his Orthodox Christianity, and his membership of a particular social group of failed asylum seekers returning to Ethiopia. After considering his evidence and the material before the Tribunal, I find that his anti-government political profile and past activities and experiences in Ethiopia, and in light of his mental health problems, when considered cumulatively, lead him to meet the refugee criterion. My assessment follows.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant’s protection visa application provided some basic background information, and the applicant later supplemented this with further details including at the hearing.
In the written application, the applicant stated that he was born in Addis Ababa, Ethiopia. He is not in a married relationship. His religion is Orthodox Christian. He speaks Amharic. He has 6 years primary schooling and has done an English course. He obtained his legal Ethiopian passport from the relevant authorities. He gave employment details in Addis Ababa: self-employed small store owner (7/1993 to about 2009); [Occupation 1] (about 2009 to 7/2011). He stated he had casual work in Australia. He showed his family comprised his father (in [Country 1]); his mother, a half-sister and half-brother in Ethiopia.
At hearing he stated his father is deceased (in [Country 1]), mother is in [Country 1], a half-brother and half-sister are in Addis Ababa.
Country information[1] shows that Ethiopia is a multi-ethnic federal republic in East Africa. Its capital city, Addis Ababa, is a major diplomatic hub, as seat of the African Union and the UN Economic Commission for Africa. The DFAT report shows in part:
[1] The Department of Foreign Affairs and Trade report, DFAT COUNTRY INFORMATION REPORT ETHIOPIA 12 August 2020, [ 1974, a Communist military junta known as the Derg (‘Committee’) overthrew the long-serving Emperor, Haile Selassie, and abolished Ethiopia’s monarchy. Rebel forces from the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a multi-ethnic alliance led by the Tigrayan people, ousted the Derg in 1991, ending Ethiopia’s civil war. The EPRDF and its successor, the Ethiopian Prosperity Party (EPP), have ruled Ethiopia since. In 1993, Eritrea broke away from Ethiopia and established its own state, rendering Ethiopia landlocked. A border dispute between the two countries triggered a two-year war (1998-2000), in which 100,000 people were killed. Ethiopia is one of the most drought-prone countries in the world, and drought-induced famines in 1973-74 and 1984-85 resulted in more than one million deaths.
·Ethiopia’s current constitution came into force in August 1995. It established a federal system of regional states delineated according to settlement patterns, language and identity (i.e. ethnicity). This method of delineation essentially makes Ethiopia an ‘ethnic federation’, whereby the largest ethnic groups administer their own states and operate with considerable autonomy from the federal government. Ethiopia has nine states: (1) Afar; (2) Amhara; (3) Benishangul-Gumuz; (4) Gambela; (5) Harari; (6) Oromia; (7) Somali; (8) SNNP; and (9) Tigray, and soon a 10th state for the Sidama people.
- Political parties have existed in Ethiopia since the overthrow of the Derg in 1991, although the ability of parties not belonging to, or affiliated with, the EPRDF to operate freely was circumscribed. The EPRDF and affiliated parties controlled all tiers of government from 1991 to December 2019, when the EPRDF dissolved and reorganised as the Ethiopian Prosperity Party. The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities: (1) the Tigrayan People’s Liberation Front (TPLF), which founded the EPRDF and led the ouster of the Derg; (2) the Oromo Democratic Party (ODP), formerly the Oromo People’s Democratic Organisation, or OPDO; (3) the Amhara Democratic Party (ADP), formerly the Amhara National Democratic Movement, or ANDM; and (4) the Southern Ethiopian People’s Democratic Movement (SEPDM).
·The United Nations Population Fund (UNFPA) estimates Ethiopia’s population at 110 million. Around 70% is under the age of 30 (including nearly 40% under 14): only 4% are aged 65 or older. Ethiopia is ethnically and linguistically diverse, comprising more than 80 different ethnic groups and 100 languages. According to the most recent national census (2007), 10 ethnic groups have a population of one million people or more. The Oromo the single largest, at 34.5% of the population, followed by the Amhara (26.9%), Somali (6.2%), Tigrayan (6.1%), Sidama (4%) and Gurage (2.5%) peoples.
·Of Ethiopia’s states, Oromia is the most populous, with around 37% of Ethiopia’s total population, followed by Amhara (23.3%) and the Southern Nations, Nationalities and Peoples (SNNP - 20.4%), Somali state (6%), Tigray state (5.8%). Addis Ababa is Ethiopia’s largest city of around 4.5 million.
·Amharic is the official national language, although the government flagged in March 2020 its intention to grant similar status to the Oromiffa, Afar, Somali and Tigrinya languages. These languages already enjoy official status in the regional states in which they predominate. English is widely taught and spoken.
·Ethiopia’s economy has averaged double-digit growth over the last decade, making it one of the fastest growing economies in the world and the largest economy in East Africa. While consistently high growth has helped improve living standards and reduce extreme poverty levels, Ethiopia remains one of the poorest countries in the world.
Summary of claims
The applicant claims to fear persecution in Ethiopia from the Ethiopian authorities. A summary of his key claims made in the application and in the review are:
·He is of Oromo (father) and Amhara (mother) ethnicity.
·His father, now deceased in [Country 1], had in Ethiopia been opposed to the government and involved with the Oromo Liberation Front (OLF).
·He was involved with the OLF: he attended meetings; helped recruitment; distributed leaflets and information.
·He had been imprisoned and tortured twice by the authorities.
·About 2 years ago someone he was involved with in the OLF was shot and killed while working on the street.
·He has heard that Amhara people and Orthodox Christians are being killed.
·He continues to support the OLF.
·“If I am forced to return, they will arrest, detain and torture me. They have also threatened to kill me. My life will be over. It is a very difficult situation there now. The authorities know me because of my involvement with the OLF. They also know me because I have been arrested twice before and I am in their list.” (para 9 of his statement of 10/6/2021)
·He has considerable difficulty with his memory and states that he sometimes has trouble recalling details of the traumatic events he experienced in Ethiopia. (para 22 of submission of 10/6/2021)
In submissions the applicant claims he has a well-founded fear of persecution in Ethiopia arising from:
- his actual and imputed political opinion in opposition to the Ethiopian government and his involvement with the Oromo Liberation Front (OLF)
- his ethnicity of Oromo and Amhara
- his religion of Orthodox Christian
- his identify as a failed asylum seeker from the West and status as an involuntary returnee
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged on 6 October 2015, which includes a statement giving his reasons for seeking protection in Australia
·Ethiopian passport pages
·the Protection visa decision record (‘delegate’s decision’) dated 9 March 2018, which is the subject of this review
·the application for review
·statements and submissions
·medical information
In particular the submission of 18 October 2021 and attachments contain significant medical information.
Country information
The DFAT report[2] states in part:
[2] DFAT COUNTRY INFORMATION REPORT ETHIOPIA 12 August 2020
2.36    The EPRDF was overwhelmingly voted into power in 1995, Ethiopia’s first democratic election. It was re-elected in 2000, 2005, 2010 and 2015, although international observers alleged voter irregularities in these elections. Opposition parties made significant gains at the 2005 election, winning 174 of 547 seats in the House of Peoples’ Representatives (the EPRDF took 327 seats) on a record voter turnout of 90 per cent.
Opposition parties, led by the Coalition for Unity and Democracy (CUD, also known as Qinjit), disputed the result and launched large-scale protests in Addis Ababa. These turned violent - clashes with government forces left nearly 200 protesters dead. Around 4,000 people were arrested, including opposition leaders. In response, the EPRDF restricted the space for political opposition. In July 2007, 30 opposition leaders were handed life sentences for their participation in the 2005 protests, but were immediately pardoned. In 2009, parliament adopted the Anti-Terrorism Proclamation (the ATP), under which large numbers of political
opponents, journalists and activists were arrested, effectively hobbling political opposition to the EPRDF (see also Political Opinion (Actual or imputed)). The EPRDF and affiliated parties won 546 of 547 seats in the 2010 national election, and all 547 seats in the 2015 election. The EPRDF and affiliated parties won 1,966 of 1,987 seats in the 2015 regional elections, thus retaining control of all states. National and regional elections were scheduled for 29 August 2020, but have been postponed due to the COVID-19 outbreak.
2.37    Ethiopia has witnessed significant changes in the political operating environment since April 2018. Restrictions on political opposition have eased significantly since April 2018, and political parties are able to operate more freely, particularly in Addis Ababa. To date, over 130 political parties have declared their intention to contest the forthcoming national election. Most are organised along ethnic lines.
2.38    In June 2018, federal parliament removed Ginbot 7 (Amharic for ‘May 15’, the date of the disputed 2005 election), the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The parties, which maintained armed wings and were committed to the overthrow of the EPRDF through militant means from their bases in Eritrea, were designated as terrorist organisations in June 2011. Ginbot 7, the OLF and the ONLF have since returned from exile and now participate in the political process. Other major opposition movements include the Ethiopian Federal Democratic Unity Forum (also known as Medrek) and Ethiopian Citizens for Social Justice (known as Ezema).
Medrek is a coalition of four parties: the Ethiopian Socialist Democratic Party (ESDP), the Arena for Sovereignty and Democracy, the Sidama Liberation Movement (SLM) and the Oromo Federalist Congress (OFC). Ezema was formed in May 2019 through the merger of several opposition parties, including Ginbot 7, the Ethiopian Democratic Party (EDP), the Semayawi Party (known as the Blue Party) and Unity for Democracy and Justice (UDJ, also known as Andinet, the successor party of the CUD/Qinjit). Some political parties promote openly nationalist platforms. Ezema is one of the few political parties that is not ethnicbased.
2.39    The Ethiopian Prosperity Party (EPP), formed in December 2019, merged into a single national party three of the four parties that previously formed the EPRDF (the ODP, ADP and SEPDM). The EPP also includes the former Afar National Democratic Party (ANDP), the Benishangul-Gumuz People’s Democratic Unity Front (BGPDUF), the Ethiopian Somali People’s Democratic Party (ESPDP), the Gambela People’s Democratic
Movement (GPDM) and the Harari National League (HNL). The ANDP, BGPDUF, ESPDP, GPDM and HNL previously governed Afar, Benishangul-Gumuz, Somali, Gambela and Harari states, respectively. They were affiliated to - but not formally part of - the EPRDF. Prime Minister Abiy justified the formation of the Ethiopian Prosperity Party on national unity grounds, claiming it would buttress efforts to move away from ethnic-based identity politics and toward ‘pan-Ethiopianism’. The TPLF, which traditionally dominated decision-making within the EPRDF but felt marginalised under Abiy, opposed the merger and refused to join
the EPP. The TPLF is seeking new alliances ahead of the next elections. These elections were planned for August 2020 but have now been indefinitely postponed due to COVID-19.
A Danish Immigration Service report[3], Ethiopia Political opposition parties - recent developments, March 2021, broadly discussed the current political conditions in Ethiopia, and stated in part:
1.4 Tightening of democratic space
The initial, positive changes following Prime Minister Abiy’s rise to power have not continued, and the authorities have reverted to repressive methods in order to maintain law and order. Hundreds of people were arrested following the assassinations in June 2019 (see Section 1.1), and more than 9,000 people were detained across Oromia in July 2020 amid and after the violence following the assassination of Hachalu Hundessa (see Section 1.1), with more than 4,000 people being prosecuted, according to Ethiopia Insight. There are reports of police brutality and arrests in connection with demonstrations and a number of journalists have been arrested.
The repressive methods used by the authorities include attempts to curb political opposition. After the assassination of Hachalu Hundessa, the government arrested opposition leaders and members in Oromia, accusing them of orchestrating or enacting the violence. Terrence Lyons, an American researcher consulted by DIS in February 2021, stated in connection to these arrests that the PP is using the judicial system as a way of weakening its political opponents, just as the EPRDF did in the past. The authorities have also arrested and charged non-Oromo politicians after the assassination of Hachalu Hundessa. The Ethiopian researcher explained that accusations by political opposition parties against the PP include arrests, legal obstruction, banning of lawful rallies, demonstrations and party meetings, attempts at creating internal party destabilisation, and one case of assassination.
[3] [ type="1">
The Government of the Netherlands report discussed the monitoring of political opponents abroad and stated in part:
3.3.1 Monitoring political opponents abroad When asked, many confidential sources say that monitoring opponents abroad was part of the EPRDF/TPLF regime but does not know the extent to which the current government uses such practices. The Australian Department of State wrote in its August 2020 country of origin information report that while the authorities probably have the necessary intelligence capabilities and qualities to monitor major anti-government demonstrations abroad and anti-government activity online, the Department assumed that people who openly criticise the government abroad run a low risk of reprisals by the authorities when they return to Ethiopia.
A number of sources believe that Ethiopia's internal problems are such that the monitoring of dissident voices abroad has been relegated to the background. …
Many Ethiopians in the diaspora express political views that often do not correspond with the standpoint of the Abiy government. However, it is inconceivable that the Ethiopian authorities are monitoring all online activities, according to one confidential source.
The Government of the Netherlands report discussed the (forced) return of Ethiopian migrants to Ethiopia and stated in part: “There is no information to show that migrants faced problems from the authorities on their arrival in Ethiopia…”(at 5.1) and “As mentioned above, no concrete cases are known in which asylum seekers/refugees have encountered problems with the authorities on their return.” (at 5.3)
The Amnesty International Report 2021/22: The State of the World's Human Rights, Amnesty International, 29 March 2022, 20220330091551 discussed at page 165 concerning Ethiopia:
ARBITRARY ARRESTS AND DETENTIONS Police in the capital, Addis Ababa, and other cities arbitrarily arrested and detained thousands of Tigrayans. The arrests appeared to be ethnically motivated and the police checked identity documents before arresting and taking people to detention centres. Tigrayan activists, journalists and media workers at media outlets Awlo Media and Ethio Forum, who reported on the situation in Tigray region, were among those arrested. The use of arbitrary detention against Tigrayans increased after the government declared a state of emergency on 2 November. The measure allowed the authorities to arrest, without a warrant, anyone if there was “reasonable suspicion” that they had cooperated with “terrorist groups”, and to detain them without judicial review indefinitely.
The UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Ethiopia, March 2022, [ states in part:
6. On 2 November 2021, Prime Minister Abiy Ahmed announced a State of Emergency in Ethiopia, after the TPLF and Oromo Liberation Army (OLA) claimed to have captured several towns on the highways to Addis Ababa. The State of Emergency Proclamation No. 5/2021 allowed authorities to arrest anyone without a court warrant if they had a reasonable suspicion that an individual had links to “terrorist groups” and to detain them for the duration of the state of emergency. OHCHR expressed concern about the Proclamation’s provisions as “extremely broad”, including vaguely-worded prohibitions on giving “indirect moral support” for “terrorist groups”. On 26 January 2022, Ethiopia’s Cabinet proposed to lift the state of emergency; a decision that was approved by Parliament on 15 February 2022.
The Freedom House report Freedom in the World 2022 – Ethiopia, 28 February 2022, [ states in part:
Overview
The appointment of Prime Minister Abiy Ahmed, who came to power after Prime Minister Hailemariam Desalegn resigned in the face of mass protests, set off a transitional period in Ethiopia. Abiy pledged to reform Ethiopia’s authoritarian state, and has held elections and implemented some liberalization policies. However, Ethiopia remains beset by political factionalism and intercommunal violence, abuses by security forces and violations of due process are still common, and many restrictive laws remain in force. Since late 2020, fighting between the Federal Government and the Tigray Defense Force (TDF) has led to the displacement of hundreds of thousands and credible allegations of atrocity crimes, and violence has spilled over into neighboring regions.
Civil Liberties
D Freedom of Expression and Belief
D1 0-4 pts
Are there free and independent media? 1 / 4
After years of severe restrictions on press freedom, Abiy’s government took initial steps to increase freedoms for independent media, and notably released a number of prominent journalists from prison in 2018. However, independent journalists remain constrained by security imperatives that limit their ability to work and travel.
In 2021, international and Ethiopian journalists and media networks came under government pressure over coverage of internal conflicts and political dynamics, resulting in some cases in expulsions from the country and revocation of licenses. Several Ethiopian journalists were also imprisoned without charges. By the end of 2021, Ethiopia topped the list of countries with the most journalists in jail, ranked second highest in sub-Saharan Africa, only after Eritrea. Additionally, effective October 29, 2021, the Ethiopia Media Authority banned local Ethiopian broadcasters from transmitting programs from foreign media outlets.
In the early months of the conflict in Tigray, the lack of telephone and internet connectivity and the inability for journalists to travel and cover developments in the region, meant that very little was known about the scale of the conflict and the resultant humanitarian situation. In this context, misinformation and disinformation about the conflict and the humanitarian situation have been rampant on social media.
D2 0-4 pts
Are individuals free to practice and express their religious faith or nonbelief in public and private? 1 / 4
The Ethiopian constitution guarantees religious freedom, and different faith groups have coexisted in the country for centuries. Prime Minister Abiy has promoted reconciliation between Ethiopia’s main faith groups, including through the 2018 release of Muslim activists who had been arrested in 2015 for protesting the government’s treatment of Muslims.
However, religion has increasingly become a divisive factor in Ethiopian politics, and local conflicts have featured violence along religious lines. Mass violence in July 2020 following the assassination of Hachalu Hundessa took on a religious dimension in parts of Bale and Arsi, in the Oromia Region, with the targeting of followers of the Ethiopian Orthodox Tewahedo Church (EOTC). In 2021 the head of the EOTC, Abune Mathias, said he had been prevented from speaking out against the ongoing violence in Tigray, though he did not explain by whom.
D3 0-4 pts
Is there academic freedom, and is the educational system free from extensive political indoctrination?     1 / 4
Academic freedom remains restricted in Ethiopia, though academics have become more vocal on political and economic matters in lectures, at conferences, in media columns, and online since the lifting of the state of emergency in 2018. However, self-censorship remains common in the context of ongoing conflicts and political tensions.
With few exceptions, institutions of higher education are funded and administered by the federal government, which also sets admission standards and student quotas. The Ministry of Education still monitors and regulates official curriculums.
D4 0-4 pts
Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution?       1 / 4
The gains made in 2018, including the release of political prisoners and lifting of bans against prominent government critics in the media and other sectors, had fostered a more open atmosphere for free expression among ordinary people. However, in the last two years, arbitrary arrests, extrajudicial activities, widespread surveillance, and nontransparent court proceedings have once again led individuals to be more reluctant to express political views openly. In particular, the government has arrested hundreds of Tigrayan activists, professionals, and public figures and closed Tigrayan-owned businesses with alleged connections to the TPLF, contributing to a sense of fear among Tigrayans.
E Associational and Organizational Rights
E1 0-4 pts
Is there freedom of assembly?   1 / 4
Free assembly is restricted by insecurity in several regions, and resultant declarations of states of emergency or martial law. In November, a six-month, nationwide state of emergency was enacted, further curtailing freedom of assembly and other civil liberties throughout the country.
Assessment of claims: credibility
The applicant claims to be a national of Ethiopia. I sighted pages of his Ethiopia passport, and the available evidence, including the applicant’s oral evidence and familiarity with Ethiopia, supports his claim to be an Ethiopia national. Ethiopia is therefore the receiving country for the purpose of assessing both the applicant’s protection claims, and his claims against the complementary protection grounds. Having considered the material before the Tribunal including the applicant’s evidence given at the hearing, I accept he has the identity he claims.
His mental and physical health
Before the hearing on 15 June 2021 the representative’s submissions did not indicate the applicant had particular mental health problems. A submission of 10 June 2021 discussed the applicant’s memory may have been affected by past occurrences:
21. We also note that Mr [*] has experienced considerable torture and trauma at the hands of the authorities in Ethiopia and that this trauma, and any related mental health issues, have gone largely or wholly untreated. Furthermore, many of the events relevant to Mr [*]’s claim occurred many years ago, in some instances around 20 years ago, and he commenced this protection visa application process about six years ago. We submit that the passage of time, as well as Mr [*]’s history of torture and trauma, considered individually and cumulatively, provide relevant context for understanding any discrepancies in accounts or information provided by Mr [*].
22. Mr [*] experiences considerable difficulty with his memory and states that he sometimes has trouble recalling details of the traumatic events he experienced in Ethiopia. We also note that Mr [*] has a history of trauma and torture, which has thus far been untreated. The UNHCR Guidance Notes on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process (‘UNHCR Guidance Notes’) state that a person’s ability to store memory with respect to events associated with trauma may be impaired…
However, at the hearing the applicant gave fragmented and scant answers to questions, and repeatedly said “I don’t understand”, as well as stating he did not remember. At the hearing the representative requested further time to provide medical information. A submission of 18 October 2021 provided medical information concerning the applicant including:
·[Organisation 1] report of 2/9/2021
·[Hospital 1] Emergency dept clinical sheet of 27/7/2017
·Discharge summary 28/7/2017
·[Hospital 1] Emergency dept clinical sheet of 5/1/2018
·Medical report of 19/1/2018
·Medical report of 23/2/2018
·[Hospital 1] Emergency dept clinical sheet of 20/5/2020
·[Hospital 1] Emergency dept clinical sheet of 22/5/2020 and 23/5
·Report re his [body part] amputation (injury 5/9/2019)
The submission of 18 October 2021 summarised the applicant’s medical history, in part:
13. We refer to the medical records from [public health service] (including [Hospital 1]) and
Mr [*]’s GP clinic, key documents of which are provided in Attachment B.
14. We provide the following brief chronology of Mr [*]’s medical history supported by his
medical records.
15. In July 2017, Mr [*] attended [Hospital 1]’s Emergency Department after he
sustained a head injury and fracture to his face falling from bed. Prior to discharge he
experienced multiple seizures due to alcohol withdrawal and was aggressive and agitated.
He was admitted to hospital and diagnosed with alcohol withdrawal seizures. He was
subsequently referred to a seizure clinic for assessment and monitoring.
16. On 5 January 2018, Mr [*] experienced a seizure and fell over in the street, was assisted by a bystander and taken to hospital by ambulance. He reported that he had stopped
drinking two weeks prior due to recurring dizziness and falls. He also reported having
experienced several seizures in the preceding weeks.
17. On 23 February 2018, Mr [*] was assessed by a Neurology Registrar. In her report she
states that ‘if this second seizure [in January 2018] was truly without alcohol excess or
alcohol withdrawal then we think that he may have an underlying seizure disorder’. She
also states that the results of several tests were ‘possibly implying ongoing alcohol use even
though [*] is denying the same’.
18. In November 2018, Mr [*] attended his GP and stated that he has been drinking alcohol
since he separated from his wife in 2013, drinks alcohol to alleviate his stress and has been
drinking one to two bottles of wine every night.
19. In September 2019, Mr [*] was hospitalised following a workplace accident that resulted
in the amputation of a [body part]. He has since been diagnosed with PTSD, anxiety and depression.
20. On 31 October 2019, Mr [*] had another seizure and was admitted to the Emergency
Department of [Hospital 1].
21. In March 2020, Mr [*] was referred for psychological counselling in relation to
‘psychological barriers including pains that is preventing him from returning back to any
work’.
22. On 20 May 2020, Mr [*] attended [Hospital 1]’s Emergency Department following
further seizures.
23. On 22 May 2020, Mr [*] experienced further seizures and was admitted to [Hospital 1] due to a psychotic episode, in which he was found ‘loitering’ and knocking on
people’s doors. The police were called and he was apprehended and hospitalised under
section 351 of the Mental Health Act 2014 (Vic).1 Clinical notes state that he also had
suicidal thoughts and hallucinations, was paranoid and appeared unkempt and disheveled.
He was initially diagnosed with seizure-induced psychosis, which was later changed to
alcohol-induced psychosis. He was also diagnosed with alcohol dependence and seizure
disorder. Clinical notes state that at this time he was drinking four bottles of wine a day.
He was admitted to [an] Adult Acute Psych Unit, where he stayed for 11 days.
24. He was subsequently referred to the [named] Clinic in [Suburb 1] for mental health support.
25. In July 2021, Mr [*] saw a gastroenterologist in relation to alcoholic liver disease and
rectal bleeding. He is on a waiting list for a colonoscopy.
26. Mr [*] instructs that in the last month or so he has re-commenced seeing a psychologist.
27. Medical records confirm that [*] has been diagnosed with:
a. post-traumatic stress disorder (PTSD);
b. anxiety;
c. depression;
d. alcohol dependence;
e. alcohol-induced psychosis;
f. alcohol-induced hepatitis;
g. seizure disorder; and
h. hypertension
In sum, I have given appropriate weight to the expert reports. Based on the reports and the medical information over several years, and in light of the applicant’s evidence at the hearing, I accept that the applicant has significant psychological problems. I acknowledge that his psychological problems have been/are attributable to past life experiences, depression, his social isolation and unsettled circumstances, and his unresolved migration status. In Australia the applicant has received some treatment for his psychological and physical problems. The most recent prognosis is that he will require treatment into the future.
His political activities
In light of the applicant’s mental state and confusion at the hearing, I have given limited weight to his evidence at hearing. Nonetheless, at hearing he described supporting and undertaking activities for the Oromo Liberation Front (OLF) in Ethiopia. In the application and review the applicant has consistently described how he supported the OLF in Ethiopia. In the application and review the applicant has also consistently spoken of how his political opinion and activities led to him being detained and tortured twice. In sum, I cannot discount the possibility that the applicant came to the adverse attention of the Ethiopian authorities because of his OLF activities, and that as a result on two occasions he was detained and then tortured.
Conclusion- credibility
Having considered the claims and evidence, I accept his claims that:
·He is of Oromo (father) and Amhara (mother) ethnicity.
·His father, now deceased in [Country 1], had in Ethiopia been opposed to the government and involved with the Oromo Liberation Front (OLF).
·He was involved with the OLF: he attended meetings; helped recruitment; distributed leaflets and information.
·He had been imprisoned and tortured twice by the authorities.
·About 2 years ago someone he was involved with in the OLF was shot and killed while working on the street.
·He would continue to be anti-government if he returned to Ethiopia.
Conclusion
I have assessed whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if he returns to Ethiopia, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future.
Having considered the claims and evidence I find that the applicant is an Ethiopia national. He is a mature, single man who identifies as an Oromo, with significant medical and mental health problems. I consider that if he returns to Ethiopia he would return to Addis Ababa where he previously lived and worked.
His return to Addis Ababa
The applicant is an Ethiopian national who last departed Ethiopia legally with a genuine Ethiopian passport that expired [in] 2015. He has evidence of his Ethiopian nationality and he would be able to seek a fresh passport or travel document from the Ethiopian Embassy in Canberra. I am satisfied the applicant would be able to travel to and enter Ethiopia.
In the DFAT report of August 2020, DFAT broadly assesses that “under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds”. DFAT stated that the OLF had since returned from exile and now participated in the political process.
However, there has been a significant political, social and security development in Ethiopia since the DFAT report was published. Since late 2020 there has been an armed conflict between the Ethiopian armed forces and the Tigray state, with significant loss of life and an ongoing humanitarian crisis. Country information from authoritative sources shows that the political situation and security conditions in Ethiopia, including in Addis Ababa, have deteriorated in recent years. The Danish Immigration Service report more broadly discussed the later political conditions in Ethiopia, and stated “The initial, positive changes following Prime Minister Abiy’s rise to power have not continued, and the authorities have reverted to repressive methods in order to maintain law and order.” The Freedom House report Freedom in the World 2022 – Ethiopia, summarises freedoms in Ethiopia and uniformly assesses 1 out of 4 (0-4pts) for:
·Are there free and independent media?       1 / 4
·Are individuals free to practice and express their religious faith or nonbelief in public and private? 1 / 4
·Is there academic freedom, and is the educational system free from extensive political indoctrination? 1 / 4
·Are individuals free to express their personal views on political or other sensitive topics without fear of surveillance or retribution?     1 / 4
·Is there freedom of assembly?          1 / 4

I find that before he departed Ethiopia, the applicant came to the adverse attention of the Ethiopian authorities because of his OLF activities, he was detained twice and then tortured. Since coming to Australia the applicant has undertaken scant political activities and in light of his significant mental health problems I do not consider that he would resume political activities on returning to Ethiopia.
Nonetheless, I cannot discount the possibility that given the poor political and security conditions in Ethiopia, including in Addis Ababa, and in light of the applicant’s past political profile and past political activities in Ethiopia, and in particular his past detention and torture, there is a real chance that the applicant would again come to the adverse attention of the authorities in Ethiopia, including in Addis Ababa. I find there is a real chance he would again be detained, interrogated and harmed in prison. I find that because of his significant mental health problems he is particularly vulnerable, either in prison or in the community.
Having considered his personal circumstances and in light of country information I find there is a real chance he would face serious harm from Ethiopian authorities and their agents when he enters Ethiopia at Addis Ababa’s Bole International Airport, or after he leaves the airport and enters the community. I find this is because of his applicant’s past political profile and past political activities in Ethiopia, and in particular his past detention and torture.
For the purposes of s.5J(1), I find the applicant fears being persecuted for reasons of political opinion. I find there is a real chance that if he returns to Ethiopia he would be persecuted for reasons of political opinion. I find the real chance of persecution relates to all areas of Ethiopia including Addis Ababa, and there are no effective protection measures available to him as the persecution would be perpetrated by the Ethiopian authorities (s.5J(2)). The real chance of harm to the applicant amounts to serious harm in that he faces a threat to his life or liberty, significant physical harassment and/or ill-treatment, and a threat to his capacity to subsist, denial of basic services and/or denial of capacity to earn a livelihood (s.5J(5)). The s.5(1)(a) reasons I have outlined are the essential and significant reasons for the persecution that would involve systematic and discriminatory conduct.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
C. Packer
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 2321

3 May 2022

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