1809121 (Refugee)

1809121 (Refugee) [2024] AATA 2175 (21 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Julie TESHOME (MARN: 0741622)
CASE NUMBER:  1809121
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Amanda Goodier
DATE:21 March 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

.
Statement made on 21 March 2024 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity – Oromo – imputed political opinion – participation in protests – detention and torture – participation in peaceful protests in Australia – ethnic tensions – relocation unreasonable – cumulative profile and country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 March 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Ethiopia applied for the visas on 23 January 2017. The delegate refused to grant the visa on the basis that the delegate did not accept that the applicants faced a real chance of serious harm for one or more of the reasons referred to in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicants would face significant harm for any reason on their return to Ethiopia. A copy of the delegate’s decision was provided by the applicant to the Tribunal.
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 (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.
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.
The most recent assessment prepared for this purpose is the 2020 DFAT Country Information Report.
Procedural Background
The applicants lodged a review of the decision of the delegate on with the Tribunal on 3 April 2018. The application was lodged together with a copy of the delegate’s decision and the notification letter. They also advised the Tribunal that they were represented Aussie Visa Solutions.
The matter was constituted scheduled for hearing on 5 October 2022. Further hearings were held 18 and 21 October 2022 with a final hearing on 18 January 2024. The first and second applicants appeared before the Tribunal on each occasion to give evidence and present arguments. The applicants were represented by their registered migration agent.
The matter was reconstituted in February 2024, and the applicants were notified of this by letter dated 12 February 2024. The Tribunal obtained the written transcripts of the earlier hearings and provided these to the applicants.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Country of nationality
The first named applicant travelled to Australia on an Ethiopian passport and claims to be an Ethiopian national. The delegate had no concerns about his claimed nationality and the Tribunal accepts the applicant is a national of Ethiopia and has assessed his protection claims accordingly.
The Tribunal finds that the first named applicant is a citizen of Ethiopia, which is also his receiving country for the purposes of the refugee and complementary protection assessments.
Based on the Ethiopian issued passport, Ethiopian issued birth and marriage certificates, the Tribunal is satisfied that the second named applicant is the spouse of the first named applicant and therefore a member of his family unit. The Tribunal is satisfied on the evidence provided in the form of an Ethiopian birth certificate and an Australian birth certificate that the third and fourth named applicants are the biological children of the first and second named applicants and are therefore members of the first named applicant’s family unit.
There is no suggestion that the applicants have a claim to enter and reside, either temporarily or permanently, in a third country pursuant to s 36(3) of the Act.
Background information
The first named applicant was born [in] East Shewa Zone, Oromia Region. He is an ethnic Oromo and Ethiopian Orthodox Christian. His parents and [siblings] live in Ethiopia while one sibling in [Country 1]. He speaks, reads and writes English and Amharic. He is well educated, having completed a Master [degree] at university in Ethiopia. He was employed by the [named] Research organisation at the [Research] sub-centre [prior] to completing his master’s degree [at a] Research centre in [Town 1] from 2009 to 2012, following completion of his master’s degree. In 2012 he was awarded [a] scholarship to pursue PhD studies at [University 1]. He arrived in Australia in June 2012 to commence his studies. As part of his scholarship, he was required to return to Ethiopia for field research which he did in April 2013 near [Town 1], West Shewa Zone and Modjo, Eastern Shewa Zone located in Oromia regional state. He resided in Addis Ababa while working in [Town 1] and during his field research in 2013. He returned to Australia in November 2013 with his wife and son.
The first named applicant completed his PhD at [University 1] in 2017. He has participated in several scientific conferences in [various countries]. He has spoken at several conferences in his area of expertise. He has published scientific work in his area of expertise.
The first named applicant has participated in several rallies organised by the Oromo Community WA in Perth since 2015.
The first named applicant claims that he will be persecuted on his return to Ethiopia based on his ethnicity as a member of the Oromo ethnic group, his past involvement in protests against the ruling party in Ethiopia, his imputed political opinion in opposition to the ruling party as well as his involvement in peaceful protests in Australia.
He claims he was detained and tortured and made to sign a declaration not to continue with any anti-government activities after participating in a peaceful protest while attending [named] University in April 2000. He also claims his father was detained and beaten as a warning for him not to continue his involvement in protests while in Australia. He also claims his father and uncle were detained in 1994 due to being suspected OLF members. His father was released but his uncle was not.
The first named applicant provided a detailed statement to the delegate as well as submissions from his representative and detailed country information. Further detailed submissions and country information was provided to the Tribunal as well as the evidence adduced in the four hearings.
The second named applicant is of Amhara ethnicity and her family reside in Ethiopia. The second and third named applicants are of mixed Oromo/Amhara ethnicity. The third named applicant has lived in Australia for most of their life while the fourth named applicant for their entire life. Both children are receiving their education in Australia.
COUNTRY INFORMATION
The last Department of Foreign Affairs and Trade reports for Ethiopia is dated 12 August 2020. It has been clear from the popular media that there have been substantial changes in Ethiopia since that date. Oromia has been described as ‘burdened with multiple crises’ including hostilities uprooting civilians and destroying infrastructure.[1]
[1] >
Ethiopia held its first multi-party elections in May 1995.[2] The Ethiopian People’s Revolutionary Democratic Front ('EPRDF') won this and all other subsequent elections, bringing stability and economic growth but restricting political dissent and media and civic freedoms.[3] The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities, including the Tigray People’s Liberation Front (‘TPLF’) and the Oromo Democratic Party ('ODP'), formerly the Oromo People’s Democratic Organisation.[4]
[2]     2020 DFAT Report, [2.2].
[3]     2020 DFAT Report, [2.2].
[4]     2020 DFAT Report, [2.35].
The OLF was formed in 1973[5] as an ethnic separatist guerrilla group with the goal of establishing a separate state within the current borders of Ethiopia as a homeland for the Oromo people.[6] The OLF was designated as a terrorist organisation in June 2011 by the EPRDF.[7]
[5]     'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[6]    'Oromo Liberation Front (OLF)', 28 May 2006, CX156562.
[7]     2020 DFAT Report, [2.38].
Between 2014 to 2018, protests occurred in both Oromia and Amhara, which resulted in a state of emergency being declared during which approximately 20,000 people were arrested and 1,000 people killed.[8] It is reported that the Oromo were the most vocal of the opponents to the ruling party during this period, resulting in them bearing the brunt of the associated arrests and detentions.[9]
[8] 2020 DFAT Report, [2.3].
[9] 2020 DFAT Report, [3.6].
In early 2018, Abiy Ahmed became the first Oromo leader of the EPRDF and was sworn in as Prime Minister.[10] In June 2018, federal parliament removed the OLF and the Ogaden National Liberation Front (ONLF) from the list of terrorist organisations.[11] Following this, the OLF agreed to disarm and started to operate as a registered political party.[12]
[10]    'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[11]    2020 DFAT Report, [2.38].
[12]    2020 DFAT Report, [3.7].
It is reported that the OLF as an opposition political party experiences considerable government harassment.[13] Around October 2018[14], part of the military wing of OLF, the Oromo Liberation Army ('OLA') officially separated from OLF leadership.[15]
[13]    Ethiopian Insight, ‘Guji Oromo need freedom from liberators’ 3 August 2020 by Nagessa Dube; [    'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007.
[15]    Oromo Legacy Leadership Advocacy Association, ‘The Security Situation in Oromia’, by Beresa Abera Jebena [>
The on-going conflict between the OLA and the government has resulted in a significant number of deaths, including civilian deaths, and other atrocities against civilians, including torture and rape.[16] It is reported that arrests and summary executions have become commonplace in parts of Oromia as the Ethiopian security forces engage in armed conflict with the OLA.^[17]
[16]    Ethiopian Insight, ‘Guji Oromo need freedom from liberators’ 3 August 2020 by Nagessa Dube; [    The Economist,’ A hidden war threatens Ethiopia’s transition to democracy’ 21 May 2020; [>
The EPRDF was disbanded in December 2019.[18] Three of the four parties that previously made up the EPRDF, including ODP, then formed the Ethiopian Prosperity Party ('EPP').[19] The TPLF refused to join the EPP.[20]
[18]    2020 DFAT Report, [2.2].
[19]    2020 DFAT Report, [2.39].
[20]    2020 DFAT Report, [2.39].
In May 2021, the OLA was designated a terrorist organisation, alongside the TPLF.[21] In August 2021, despite their historical grievances and conflict, the OLA and the TPLF formed an alliance opposed to the government. It is reported that the crackdown on the OLA intensified after the OLA forged its alliance with the TPLF.[22]
[21] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[22] 'Ethiopian government accused of deadly air strikes on Oromiya region', Reuters, 27 October 2023, 20231031162439.
It is reported that since the OLA had been designated a terrorist group, incidents of political violence have increased.[23] It has been reported that there has been widespread impunity for ongoing rights abuses in Oromia, including in areas already suffering from conflict.[24] Security forces have targeted young Oromos, accusing them of support for, or affiliation with, the OLA.[25] It has been reported that a culture of impunity for abuse has emboldened unaccountable security forces and done nothing to prevent further harm.[26]
[23]    'Ethiopia: 20231025121315 – Security situation – Oromos/Oromia – Oromo Liberation Front – Oromo Liberation Army – Returnees', Country of Origin Information Services Section (COISS), 24 November 2023, 20231124144217, pg 2.
[24]    'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
[25]    'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
[26]    'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
In July 2023 it was reported that members of the OLF had been detained without charge and the government had ignored judicial orders for their release.[27]
[27] 'Ethiopia: Oromo Opposition Figures Held Despite Court Orders', Human Rights Watch (HRW), 24 July 2023, 20230728103900.
As noted above, the OLF and OLA separated in 2018. However, it has been reported that "the extent to which OLF controls the OLA or more precisely the fighters who used to be connected to OLF/OLA is open to debate”,[28] with it being suggested that covert contact between the two factions is continuing.[29]
[28] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.1].
[29] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.2] and the information there cited.
There is also credible country information which contends that the distinction between OLF/OLA members and the general population in Oromia region is non-existent.[30] It suggests that accusations of OLA affiliation have been deployed by authorities to combat all forms of political opposition, regardless of whether actual ties to the OLA exist as a matter of fact or reality.[31]
[30] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
[31] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
Human Rights Watch has commented on the treatment of politically active Oromos, who are perceived to be part of the OLF by the government, as follows:[32]
In the vast majority of interrogations involving Oromos, there are accusations that they are either members of OLF, or are involved in the Oromo opposition, which many take to mean OLF. There is very rarely any evidence that there is a connection to the OLF, rather anyone who expresses dissent, mobilizes for mainstream politics, or is involved in Oromo cultural associations, are at risk of being associated to the OLF. If you have a family connection from the past to OLF, you are at particular risk. Torture and mistreatment in detention is common among the Oromo, particularly those who have been accused of having connections to the OLF.
[32] Human Rights Watch 27 Apr. 2015 Immigration and Refugee Board of Canada, Ethiopia: The Oromo Liberation Front (OLF), including origin, mandate, leadership, structure, legal status, and membership; treatment of members and supporters by authorities (2014-2015), 7 May 2015, ETH105146.E, available at: type="1">
The conflict within Ethiopia remains rife and hostilities are at a national scale.[33] Following the execution of a Cessation of Hostilities Agreement between the government and the TPLF, hostilities in Oromia between the OLA and the Ethiopian National Defense Force (ENDF) re-escalated.[34] Negotiations between the Federal Government and the OLA collapsed in April 2023 and the government responded by engaging in military operations against the OLA in May 2023.[35] It has been reported that in Oromia:[36]
The Commission investigated several emblematic incidents of extrajudicial killing, including the detention and killing of leaders of the Karrayyu community at the hands of government security forces in Fentalle District, East Shewa Zone on 1 December 2021. Security forces detained 39 men, including the senior leadership of the Karrayyu community, who were participating in a Waaq Kadhaa prayer ceremony, summarily executing 14 and holding 23 others in a military detention camp for over one month. In another incident, a 17- year-old boy was publicly executed by government security forces in Dembi Dollo, Kellem Wollega Zone, on 11 May 2021. He had been accused of being a member of a local armed group. Despite widespread outrage in both cases, as far as the Commission is aware, no one has been held accountable. Oromos living in Kellem Wollega and West Wollega also described killings of family members, often accused of being members of armed groups, with total impunity.
The Commission further uncovered a pattern of arrest and detention of Oromo civilians, in particular men, accused of having links with the OLA. Detentions documented between November 2020 and February 2023 were perpetrated primarily by the federal or regional police, Oromia Special Forces and at times the ENDF and were accompanied by torture and ill-treatment. Violations are ongoing. Family members of suspected OLA fighters were also targeted for arrest and detention – including women who experienced sexual violence. Arrests, detentions and killings often took place against a backdrop of curfews and restrictions on movement, contributing to an overarching climate of fear. Large areas of Oromia appear to have been administered throughout the mandate periods under militarized Command Posts, whether or not State of Emergency legislation was in force.
[33]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340.
[34]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 4.
[35]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 5.
[36]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 8-9.
The UN Commission concluded that in the Oromia region, there were:
reasonable grounds to believe that the ENDF and Oromia regional authorities committed serious violations of human rights, in particular of the right to life; prohibition of torture and ill-treatment, including rape and other forms of sexual violence; and arbitrary arrest and detention.
The UN Commission reported that it "found a pattern of arrest and detention of Oromo civilians, in particular men, accused of having links with OLA or of supporting or sharing information with the group.[37] The UN Commission further reported that whilst:
the majority of the cases were of individuals accused of links with OLA, the Commission found two instances where women and men were arrested and accused of other anti-government activities, including protests. According to human rights defenders and civil society activists working on Oromia, such detentions are common.
[37]    See 'Comprehensive investigative findings and legal determinations for Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 13 October 2023 [accessible: [369], pg 63.
As recently as October 2023, both the OLF and the OLA accused the government of conducting air strikes in Oromo which killed hundreds of civilians.[38]
[38]    'Ethiopian government accused of deadly air strikes on Oromiya region', Reuters, 27 October 2023, 20231031162439.
Findings and Reasons
The Tribunal, as it is currently constituted, has not had the benefit of having seen the first named applicant give evidence.[39] However, it has had the opportunity of listening to the first named applicant articulate his experiences and claims on four separate occasions which were two years apart. The Tribunal has also been able to consider that oral evidence against the documentary evidence and submissions provided by the first named applicant, including his protection application, together with the country information.
[39]    See generally, Fox v Percy [2003] HCA 22; 214 CLR 118.
The Tribunal has listened to the first named applicant discuss his past experiences of harm and feared future harm at some length. Those discussions have occurred at different times, with years between them. His evidence was free flowing, consistent and detailed. On occasions where he was asked questions which appeared designed to elicit more specificity or detail, the first named applicant was able to provide that further information directly and without undue delay or pause. Moreover, the first named applicant's experiences and feared future harm are consistent with credible country information.
The Tribunal considered that the first named applicant's evidence has been consistent between his protection visa application, his interview and when appearing before the Tribunal. He was able to articulate matters and displayed an understanding of the political situation in Ethiopia both historically and around the time of the Tribunal hearings.
The Tribunal has some reservations that the first named applicant, on occasion, embellished aspects of his evidence on past harm. However, while past harm is a factor to be considered, the Tribunal is required to consider the chance the first named applicant may experience harm in the reasonably foreseeable future. Overall, the Tribunal found the first named applicant's evidence to be credible and sufficiently reliable to consider that it ought to be accepted.
The country information suggests that the situation in Ethiopia remains volatile and constantly changing. Human rights abuses are committed by the government and by armed groups unrestricted by government intervention or state protection. Conflict and violence, particularly ‘along ethnic or communal lines’, occurs across the country.[40]
[40] Human Rights Watch, World Report 2022: Ethiopia (2022) >
It is against that backdrop that the first named applicant’s claims must be considered. The political situation in Ethiopia is extremely complex and imputed political affiliation with the OLA can quite clearly lead to torture and death on what appears from the country information to be very little evidence and no judicial review.
The Tribunal is satisfied from the evidence presented that the first named applicant is of Oromo ethnicity. The Tribunal is also satisfied from the evidence presented that the first named applicant was successful in obtaining a scholarship to further his studies in Australia, has completed his PhD in his area of expertise, is published and presented at various conferences on topics related to his area of expertise. The Tribunal is satisfied on the evidence presented that the first named applicant has participated in several peaceful protests with the Oromo Association of WA.
The Tribunal is satisfied on the evidence presented that the second named applicant is of Amhara ethnicity. The Tribunal is also satisfied on the evidence presented that the third and fourth named applicants are mixed Oromo/Amhara ethnicity and have lived in Australia for most of their lives. In that regard the most suitable location for them to return to would be the capital, Addis Ababa.
Although the current Prime Minister is Oromo, it is clear from the country information that the state is unable to protect the Oromo from inter-ethnic violence in Ethiopia at present, should they have a risk profile for any reason. The Tribunal has referred above to country information which suggests that people of Oromo ethnicity are readily accused of involvement with the OLF/OLA, regardless of the truth of that allegation.
The situation for Oromo people, particularly Oromo people who are in fact, or perceived to be, against the government in Ethiopia is dangerous and volatile. It is punctuated by considerable inter-ethnic tensions which, in turn, play a fundamental part in the political environment.[41] Ethnicity and politics cannot be easily separated from each other in Ethiopia. The strong impression that the Tribunal has from the country information is that politics and ethnicity are inextricably and undeniably linked.
[41]    See 'Two steps forward, one step back. How the rising tide of ethno-nationalism is hindering Ethiopia's democratic transition', Nydia Ponnan, HORN International Institute for Strategic Studies, 01 December 2020, 20210722151116.
To be satisfied that the first named applicant faces a real chance of serious harm, the Tribunal does not need to be satisfied that the harm is more likely than not. A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.[42]
[42]    Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
The Tribunal finds that the first named applicant’s combined profile as a person granted [a] scholarship in 2012 as well as a published scientist in his area of expertise will bring him to the attention of authorities on his return, particularly as the area of employment for the first named applicant with his skills and expertise is within government. The Tribunal accepts that the first named applicant’s participation in protests in Australia would have been reported back to the authorities in Ethiopia, imputing him as being opposed to the current government and a supporter of the OLF. There is also a small but real chance that the first named applicant’s history of family and past suspected involvement with the OLF will bring him to the attention of the incumbent government on his return to Ethiopia. The first named applicant’s failure to return to Ethiopia when an Oromo prime minister took office in 2018 may compound anti-government suspicions. In addition, the applicant will be returning with his wife who is of Amharic ethnicity and children who have lived in Australia for most or all their lives. The children will be unaccustomed to life and schooling in Ethiopia and unfamiliar with the language such that attention will be drawn to the family, increasing the risk of the first named applicant’s return to Ethiopia being brought to the attention of the authorities.
A mere suspicion of OLA involvement gives rise to a real chance of serious harm for the first named applicant because, on the available country information, if he is suspected of pro-OLA political sympathies there is a real chance that he will be detained and tortured, without redress to judicial review. The Tribunal accepts, based on country information regarding conditions in prisons and detention facilities in Ethiopia, that detention presents a real risk of serious harm in the first named applicant’s circumstances.[43]
[43] 2020 DFAT Report at [5.25]–[5.27].
The Tribunal accepts that there is a real chance the first named applicant will be seriously harmed because of either his Oromo ethnicity, or his imputed political opinion (or a combination of both) if he is returned to Ethiopia. The Tribunal accepts that those matters would be the essential or significant reason for the harm that he would face.
In the case of people of Oromo ethnicity, the country information supports a conclusion that the authorities have continued to act against the OLF and OLA. Whilst those actions are politically motivated, the inextricable links between politics and ethnicity in Ethiopia, considering the above country information, is such that the Tribunal is satisfied that the government is engaged in systematic and discriminatory persecution of persons who are opposed to them, including those who are involved in, or perceived to be involved in, the OLF/OLA or are of Oromo ethnicity.
The country information discloses credible reports of harm and abuse committed by federal and regional police forces, ranging from beatings and arbitrary arrest and detention to rape, torture and extrajudicial killings. That includes abuses committed in the context of the 2014–18 protests in the Oromia (and Amhara) states, counterinsurgency operations against political opponents (ONLF) in the Somali State, and credible reports of abuses by state actors in the context of the ongoing conflict in Tigray.
The ethnic tension in Ethiopia is such that the Tribunal does not consider that the first named applicant could reasonably relocate to any area in Ethiopia where he would not face a real chance of serious harm. In this regard the Tribunal notes that the first named applicant would be returning to Ethiopia with his wife who is identified as Amharic and children who would clearly be identified as not having lived in Ethiopia for most of their lives. In the Tribunal’s view, given his cumulative profile and country information, the first named applicant would face a real chance of persecution for reasons of his race and imputed political opinion in all areas of Ethiopia. The Tribunal is satisfied that the real chance of harm relates to all areas of Ethiopia and that the first named applicant could not reasonably relocate to avoid such harm.
According to the most recent DFAT report, there are credible reports of abuses committed by federal and regional police forces, ranging from beatings and arbitrary arrest and detention to rape, torture and extrajudicial killings, including in the context of the 2014–18 protests in the Oromia and Amhara states and counterinsurgency operations against the ONLF in the Somali State. There have been further reports of abuses by state actors in the context of the war in Tigray. DFAT further assesses that government efforts to strengthen the independence of the judiciary from political interference and to combat judicial corruption are genuine, but this will be a long-term undertaking. Accordingly, the Tribunal is not satisfied that the first named applicant can access the protection of the Ethiopian State, nor is there a reasonably effective police force to protect him from political and ethnic violence of the types identified, for the purposes of s 5LA(2)(a) and (c) of the Act. Based on credible country information, the Tribunal is not satisfied that the state is willing and able to offer protection to the first named applicant. Given the current political and ethnic instability in Ethiopia, the Tribunal is not satisfied that effective protection measures as per s 5LA are available to the first named applicant in Ethiopia as provided by the state. Accordingly, the Tribunal finds that effective protection measures are not available to the first named applicant for the purposes of s 5J(2) of the Act.
The Tribunal is satisfied that there are not any permissible reasonable steps that the first named applicant could take to modify his behaviour to avoid a real chance of persecution. The only steps that would be permissible would, in the Tribunal’s view, involve a contravention of s 5J(3) of the Act. Even then, the Tribunal is not satisfied that those actions would necessarily reduce the first named applicant's profile to a level which would involve him not facing a real chance of serious harm.
The Tribunal is satisfied that the risk faced by the first named applicant is not one which is faced by the population generally.
The Tribunal finds that the first named applicant has a well-founded fear of persecution for reasons of race and imputed political opinion if returned to Ethiopia now or in the reasonably foreseeable future.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that second named applicant is the spouse of the first named applicant and the third and fourth named applicants are the biological children of the first named applicant and are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the first named applicant’s application.
It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Amanda Goodier
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.
…

[2024] AATA 2175

21 March 2024

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