1809526 (Refugee)

1809526 (Refugee) [2022] AATA 491 (3 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1809526
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:K. Chapman
DATE:3 January 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 03 January 2022 at 10:25pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – mixed Amhara and Oromo ethnicity – Amharic speaker – widespread ethnic conflict – fear harm from the Oromo and Tigray people – Oromo Liberation Army (OLA) – Tigray People’s Liberation Front (TPLF) – political opinion – supporter of Coalition for Unity and Democracy Party (CUDP, aka Kinijit) – particular social group – female political supporters of opposition parties in Ethiopia – vague and limited evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 23 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The Tribunal has obtained the following background information from the visa application, evidence presented to the delegate by the applicant, the decision of the delegate (submitted to the Tribunal) and the applicant’s evidence provided during the review (including her evidence at hearing).
[The applicant] claims to be a citizen of Ethiopia. She applied for the visa on 10 September 2015. The applicant is ethnically mixed, with both Amhara and Oromo heritage. The applicant is an Amharic speaker who primarily resided in Dire Dawa. She fears harm from the Oromo and Tigray people, in the context of widespread ethnic conflict taking place in Ethiopia.
The applicant also claims to have been an active supporter of the opposition Coalition for Unity and Democracy Party (CUDP, aka Kinijit) since 2008. She contends she distributed flyers for the Party during the lead up to the 2010 and 2015 elections, which saw her come to the adverse attention of the then Ethiopian Government (the Ethiopian People’s Revolutionary Democratic Front (EPRDF), dominated by Tigrayans). The applicant claims in 2010 she was arrested and held for around two weeks, during which time she was mistreated. Furthermore, she claims following her release she went into hiding for around two years, being assisted by her husband who maintained his employment with [Employer 1] during that time. From 2012 to 2015, the applicant contends she came out of hiding, maintaining a low profile. In 2013 she was widowed. In 2015 she purportedly returned to political activity in the lead up to the next national election, whereupon she was arrested again and mistreated.
Following her release from detention in 2015, the applicant was apparently advised to expect to reappear at the local Police station when required. She then applied for a Visitor visa to see her pregnant daughter who resides in Australia. The applicant departed Ethiopia through the international airport at Addis Ababa, arriving in Australia [in] May 2015 as the holder of a Visitor Subclass 600 visa. She applied for protection on 10 September 2015. The delegate refused to grant the protection visa to the applicant on 23 March 2018, due to credibility concerns.
The applicant applied for review of the delegate’s visa refusal decision on 6 April 2018. She provided a copy of that decision to the Tribunal and subsequently further material including submissions containing contemporary country information and identity documentation. The applicant contends she remains at risk of harm due to her political opinion, as the current Ethiopian Government of Prime Minister Abiy banned the CUDP from participating in the 2021 national election. The applicant submits she also faces harm due to membership of the particular social group ‘female political supporters of opposition parties in Ethiopia’.
The applicant appeared before the Tribunal in person on 25 November 2021 to give evidence and present arguments. She confirmed to the Tribunal that she was comfortable proceeding with the hearing in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching this decision, the Tribunal notes that it is not satisfied with the genuineness of the bulk of the claims raised by the applicant, particularly those pertaining to her purported political opinion. However, given the state of ethnic conflict taking place in Ethiopia, the Tribunal must apply the law to the facts of this matter and set aside the primary decision, due to the risk of harm faced by the applicant on account of her mixed Amhara and Oromo ethnicity.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Ethiopia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed an Ethiopian national. Ethiopia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Ethiopia, there is a real risk she will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms lodged on 10 September 2015;
b.the applicant’s identity documents, including her passport, birth certificate, Ethiopian national identity card, Ethiopian urban dwellers identity card, marriage certificate and passport photograph;
c.the applicant’s statement of claims dated 31 August 2015;
d.legal submissions from the applicant’s representative dated 8 September 2015;
e.a submission from the applicant’s representative dated 12 November 2015 enclosing:
i.the applicant’s identity documents outlined above;
ii.the applicant’s baptism certificate;
iii.the death certificate of the applicant’s deceased husband, [Mr A];
iv.a letter from [Mr B], President and Foreign Relation Head of the Coalition for Unity and Democracy Party dated [in] October 2015;
v.copies of Coalition for Unity and Democracy Party pamphlets with translations; and
vi.two sample ‘Vote for Kinijit’ handouts;
f.the Departmental delegate’s protection visa refusal decision record dated 23 March 2018, a copy of which has been provided to the Tribunal by the applicant;
g.the application for review form submitted on 6 April 2018;
h.legal submissions from the applicant’s representative dated 17 November 2021 annexing the following documents and a Statutory Declaration of the applicant dated 8 October 2021;
i.copies of the applicant’s identity documents provided to the Department;
ii.the applicant’s statement dated 31 August 2015;
iii.copies of Coalition for Unity and Democracy Party (CUDP) pamphlets with translations;
iv.a letter from [Mr B], President and Foreign Relation Head of the Coalition for Unity and Democracy Party (CUDP) dated [in] October 2015;
v.a letter from Coalition for Unity and Democracy Party (CUDP) dated 29 May 2018;
vi.country information documents concerning Ethiopia; and
i.Departmental administrative and movement records.
Claims for protection
The applicant has made claims for protection which may be summarised as follows (noting that information additional to the initial specified claims was raised during the review):
a.she has been an active supporter of the Coalition for Unity and Democracy Party (CUDP, aka Kinijit) since 2008. The applicant distributed flyers for the Party during the lead up to the 2010 and 2015 elections, which saw her arrested by the Ethiopian authorities of the time (the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a Party dominated by Tigrayans), even though she was not an official party member (this was because her first husband was employed by [Employer 1] and she didn’t want to join a political party and jeopardise his employment). The applicant apparently spent significant time hiding from the authorities upon her release in 2010. Between 2012 and 2015 the applicant maintained a low profile, however in the lead up to the 2015 election she returned to political activity and was rearrested. She was warned to expect to report to the local Police station when required. Upon her release she escaped to Australia to visit her pregnant daughter;
b.she contends she remains at risk of harm due to her political opinion, as the current Ethiopian Government of Prime Minister Abiy banned the CUDP from participating in the 2021 national election. The applicant submits she also faces harm due to membership of the particular social group ‘female political supporters of opposition parties in Ethiopia’;
c.she was widowed in 2013 and is at risk of harm as a member of the particular social group ‘single women in Ethiopia’ (noting that she remarried in Australia and now resiles from this claim); and
d.she is of mixed Amhara and Oromo ethnicity. The applicant’s primary place of residence was in Dire Dawa. She faced discrimination from the Oromo people in that region and has had her property damaged and requisitioned by the Oromo. The applicant fears being targeted by the Oromo, as she is an Amharic speaker of mixed ethnicity, and also by the Tigrayans in the context of widespread ethnic conflict.
Evidence at the review hearing
The applicant’s evidence at hearing may be summarised as follows. She confirmed she understood her claims for protection and that they are truthful. The Tribunal canvassed her background with her. The applicant’s primary place of residence in Ethiopia was Dire Dawa. She is of mixed Amhara and Oromo ethnicity. The applicant speaks Amharic and does not understand the Oromo language. She is a Christian with [number] adult children. Her adult daughter (with a grandchild) and one adult son reside in Australia. The applicant’s three remaining adult sons reside in various locations in Ethiopia, having been forced to leave Dire Dawa by ethnic conflict involving Oromo people. They are fearful of the ethnic conflict engulfing the country and one son in Addis Ababa has spoken to her of the unrest in that city. She claims her adult sons continue to be harassed by the Oromo people. The applicant was widowed in 2013 and has remarried in Australia. When asked by the Tribunal what she feared if returning to Ethiopia, the applicant responded that it was ethnic strife concerning her.
The Tribunal canvassed with the applicant her claims pertaining to political opinion at length. The applicant claimed to have joined the CUDP/Kinijit in 2008. She initially provided a limited account of the policies of that Party, focussed on its aspiration to unite ethnic groups and promote women’s rights. According to the applicant, she helped to promote the Party in Ethiopia by distributing flyers but could not go further given her first husband’s apolitical employment as a driver with [Employer 1]. The Tribunal sought to canvass her political opinion claims further, however the applicant provided vague and limited responses.
Following a break to consult the representative, the applicant provided further particulars regarding her political opinion claims. Having the benefit of taking the applicant’s evidence in person, the Tribunal observed her to continue to provide vague evidence, devoid of depth. She maintained her involvement with the CUDP/Kinijit was to promote justice and women’s rights. The applicant advised that in 2010 Party officials came from Addis Ababa to Dire Dawa with flyers for her to distribute, although she could only provide scant detail as to their content and quantity.
The applicant maintained that in 2010 the flyers were distributed secretly, otherwise she would be killed. When asked to provide further particulars, she claimed to be well known to local women, whom she engaged by travelling to villages to distribute the flyers, whilst noting they were mostly illiterate. Upon the Tribunal querying the utility of distributing flyers in these circumstances, the applicant maintained the information contained in them was explained to the women.
When asked by the Tribunal if she faced difficulties from the Ethiopian authorities in 2010, the applicant advised she was in hiding. When asked by the Tribunal if her husband faced any difficulties then, the applicant advised he was able to maintain his employment as a driver with [Employer 1], whilst she was in hiding and moving from place to place. On several occasions the Tribunal invited the applicant to detail instances of harm she faced in Ethiopia related to her involvement in politics. In response, the applicant advised she went to gaol twice between 2008 and 2015, hiding from the authorities for various periods during that timeframe. The applicant briefly outlined her involvement preparing to distribute flyers for the 2015 election and her subsequent pursuit by the Ethiopian authorities that led her to flee from Dire Dawa to Addis Ababa and resume hiding. Overall, the brevity and lacuna of detail regarding the applicant’s claims of harm from the Ethiopian authorities, between 2008 and 2015, were striking.
The Tribunal raised with the applicant that it might have difficulty accepting the genuineness of the submitted supporting letters from the CUDP/Kinijit, given her limited display of knowledge of Ethiopian politics and her ability to depart the country by air from Addis Ababa without adverse attention from the authorities, even though she purportedly has a high enough profile to receive these letters of support. The applicant responded by indicting that she didn’t know people in the CUDP/Kinijit prior to 2008, rather she knew the male chairperson. When asked by the Tribunal why she would receive such letters of support if her participation in politics was limited to handing out flyers, the applicant advised that the Party knew she handed out the flyers and as a woman she experienced a lot of unfairness and was always working to better the situation.
When asked by the Tribunal why she travelled to Australia in May 2015, the applicant advised that her daughter was pregnant at the time and she wanted to help her. She then added that she also came to help herself, as she has some friends who lost their lives to atrocities in Ethiopia. When asked by the Tribunal if she departed Ethiopia legally through an airport using her own passport, the applicant confirmed that she did so with no problems. She added that she was in hiding in Addis Ababa prior to her departure from the airport. The Tribunal canvassed with the applicant whether the Ethiopian authorities were searching for her at that time. She indicated that the Police were searching for her whilst she was in hiding in Addis Ababa. The applicant added that her passport expired after her arrival in Australia and one of her sons was harassed in Ethiopia when trying to renew it for her.

The Tribunal raised DFAT country information with the applicant suggesting that it would be difficult to depart the airport in Addis Ababa using her own passport, if she was wanted by the Ethiopian authorities who were searching for her, given the sophistication of the Ethiopian security services.[1] The applicant replied that she wasn’t involved in Court action and didn’t commit a big crime. She cited that criminals, including murderers, were able to travel out of Ethiopia. The Tribunal canvassed with the applicant her earlier evidence regarding the Ethiopian authorities searching for her between 2010 and 2012 whilst she hid, in contrast with her evidence that her first husband was able to work unhindered by the authorities. The Tribunal raised with the applicant that such evidence might appear inconsistent, inviting her comment. She replied that her husband did not want to put her at risk and she was the only one involved with the CUDP/Kinijit.
[1] ‘DFAT Country Information Report Ethiopia’, Department of Foreign Affairs and Trade, 12 August 2020, paragraphs 5.14 & 5.39.
The Tribunal canvassed with the applicant her delay of almost four months following arrival in Australia in 2015, before making a valid application for protection. The Tribunal raised that this delay might tend to undermine the genuineness of her claims. The applicant responded by advising that she considered applying shortly after arrival, but she had to help her daughter with her pregnancy and the latter advised she could wait to apply. The Tribunal canvassed with the applicant the particulars of her Visitor Subclass 600 visa application and whether she advised of her fears of remaining in Ethiopia at that time? The applicant indicated she did not advise the Department of her times in gaol as she feared not being granted the Visitor visa. The Tribunal raised with the applicant that this omission might tend to undermine the genuineness of her claims for protection, inviting her comment. She replied that she was initially planning to escape to Egypt, then told the Australian authorities what she had to so as to obtain the Visitor visa.
The applicant delivered more fulsome and persuasive evidence regarding her fears of harm pertaining to ethnic violence in Ethiopia. She outlined that she feared both the Oromo people, including the Oromo Liberation Army (OLA), and the Tigrayan people, including the Tigray People’s Liberation Front (TPLF), noting they were allied against the central Government and advancing towards Addis Ababa. The applicant persuasively outlined the discrimination she faced from elements of the Oromo people when trying to operate her small [business], citing the additional difficulties she faced as a woman. The applicant explained that Dire Dawa is divided into different ethnic groupings and she faces additional prejudice as an ethnically mixed Amhara and Oromo, who only speaks the Amharic language.
The applicant gave forthright evidence regarding the destruction of her residential property by Oromo forces and noted her residence and business had been requisitioned by elements of the Oromo people following her departure from Ethiopia. She advised that her three adult sons remaining in Ethiopia had been forced out of Dire Dawa by threats from Oromo people and they had scattered to different portions of the country. Her sons fear being caught up in the ethnic violence and being forced to fight. Their mixed ethnicity also places them in added danger according to the applicant.
The applicant concluded her evidence at hearing by indicating her home had been destroyed by the Oromo in Dire Dawa and she had nowhere to return to in Ethiopia. She also expressed fear at being harmed in the ethnic conflict enveloping the country. The applicant advised that although she was of mixed ethnicity, she felt in herself to be more Amhara than Oromo. The representative made submissions referring to the applicant’s claims concerning ethnicity and political opinion. He doggedly contended that she was able to depart the international airport at Addis Ababa without incident, as she did not have a high enough profile to attract adverse attention from the authorities there, whilst advancing the narrative she was actively involved in regional politics to a degree commensurate with her claims of being harmed by the Ethiopian authorities and significantly pursued by them thereafter.
Analysis
That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.
The Tribunal accepts the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Ethiopia. This is due to her mixed Amhara and Oromo ethnicity, in the context of her home being destroyed in Dire Dawa, against the backdrop of an ensuing wide ranging ethnic conflict.
However, the Tribunal does not accept the veracity of the applicant’s claims pertaining to political opinion. As previously outlined, the applicant provided vague and unconvincing evidence at hearing regarding her purported involvement in distributing flyers for the CUDP/Kinijt Party in 2010 and 2015, her arrest and mistreatment in 2010 and 2015, her ability to hide whilst her first husband worked unimpeded and her relentless pursuit by the Ethiopian authorities. Indeed, the lack of detail provided by the applicant as to past harm was striking. In contrast to her detailed and well presented written claims, compiled with the assistance of her representative, the applicant’s evidence at hearing was bereft of substance. On balance, the Tribunal is not satisfied with the genuineness of any of her claims pertaining to political opinion and it does not accept she has ever been involved in political activity in Ethiopia, nor that she has ever been the subject of adverse attention by the Ethiopian authorities on account of political opinion.
Alternatively, the Tribunal does accept the genuineness of the applicant’s claims to fear harm on the basis of her mixed Amhara and Oromo ethnicity, in the context of widespread ethnic conflict in Ethiopia. The Tribunal is satisfied that the applicant suffered discrimination in her business dealings from Oromo decision makers in Dire Dawa, on account of her mixed ethnicity and gender. The Tribunal is also satisfied that the applicant’s residence in Dire Dawa has been destroyed by Oromo forces and her other property has been requisition by them. Furthermore, the Tribunal accepts that, in the context of the widespread ethnic violence taking place in Ethiopia, the applicant is at increased risk of harm from Oromo forces, including the Oromo Liberation Army (OLA), and Tigrayan forces, including the Tigray People’s Liberation Front (TPLF), given her mixed Amhara and Oromo ethnicity, in combination with her inability to understand the Oromo language.
Real chance of persecution for reason of race
It is apparent from reliable contemporary country information that Ethiopia is presently in a state of internal conflict arising from ethnic tensions. As outlined above, the Tribunal accepts that the applicant’s property in Dire Dawa has been destroyed or requisitioned by Oromo forces in the context of ethnic violence. The mixed Amhara and Oromo ethnicity of the applicant is a factor elevating her risk of harm from Oromo or Tigrayan forces if she returns to Ethiopia.
The Tribunal notes that the DFAT country information indicates violence based on ethnicity is ‘a growing concern in regional states’ and it also describes Oromo involvement in ethnic violence, in addition to the Amhara being subject to ethnically motivated violence in regions where they are not in the majority.[2] However, it is apparent to the Tribunal that the scale of ethnic violence taking place in Ethiopia has accelerated since the end of 2020, after publication of the latest DFAT country information. Reliable country information from the Australian Broadcasting Corporation (ABC)[3], the British Broadcasting Corporation (BBC)[4], International Crisis Group[5] and Al Jazeera[6] indicates the following situation has unfolded in Ethiopia since late 2020.
[2] ‘DFAT Country Information Report Ethiopia’, Department of Foreign Affairs and Trade, 12 August 2020, paragraphs 3.3, 3.7 & 3.10.
[3] ‘A Year of Bloodshed, Famine and Civilian Torture. Why is Ethiopia on the Brink of All-Out Civil War?’, ABC news, 19 November 2021: A year of bloodshed, famine and civilian torture. Why is Ethiopia on the brink of all-out civil war? - ABC News
[4] ‘Ethiopia’s Tigray war: The short, medium and long story’, 29 June 2021, BBC, Ethiopia’s Tigray war: The short, medium and long story - BBC News
[5] ‘Ethiopia’s Civil War: Cutting a Deal to Stop the Bloodshed’, 26 October 2021, International Crisis Group, Ethiopia’s Civil War: Cutting a Deal to Stop the Bloodshed | Crisis Group
[6] ‘UN rights council orders probe into abuses in Ethiopia’s conflict’, Al Jazeera, 17 December 2021,
In November 2020, Prime Minister Abiy launched an offensive against the Tigray People’s Liberation Front (TPLF) in the Tigray region, following attacks on Ethiopian National Defence Force personnel and an earlier unsanctioned regional election. This offensive saw the Ethiopian National Defence Force, in conjunction with Amhara militia groups such as FANO, occupy portions of the Tigray region. However, throughout 2021 the TPLF had a series of military victories and pushed south to occupy portions of the Amhara and Afar regions. The TPLF also allied with some ethnic Oromo forces, such as the Oromo Liberation Army (OLA). In November 2021, the TPLF had units within 300km of Addis Ababa. It is reported that atrocities have been committed by various ethnically based parties to the conflict in the regions of Tigray, Amhara and Afar.
Recent reporting from the BBC[7], Al Jazeera[8] and Bloomberg[9] indicates that the Ethiopian national forces of Prime Minister Abiy have recovered territory throughout December 2021. Indeed, Prime Minister Abiy himself travelled towards the front lines to lead his forces in their push to defend Addis Ababa from an impending attack by Tigrayan forces. At the time of this decision, the Tigrayan forces had retreated back to the Tigray region and were seeking a negotiated settlement. However, Prime Minister Abiy has rejected talks and threatened to crush the Tigrayans. Atrocities continue to be committed and the United Nations has launched an investigation.
[7] ‘Ethiopia Civil War: How PM Abiy led fight back against rebel advance’, 15 December, BBC, Ethiopia civil war: How PM Abiy led fight-back against rebel advance - BBC News
[8] ‘Tigrayan forces announce retreat to Ethiopia’s Tigray Region’, 20 December 2021, Al Jazeera,
[9] ‘Ethiopia’s Abiy Has Civil War Edge as Tigray Rebels Retreat’, 21 December 2021, Bloomberg,
Furthermore, contemporary credible reporting highlights that Prime Minister Abiy is not currently in dialogue with the TPLF or the OLA.[10] Indeed, the OLA has actively fought the central Government, taking significant territory in Oromia throughout November 2021.[11] The OLA remain in alliance with the TPLF in opposition to Prime Minister Abiy.[12] In the view of the Tribunal, it is clear that Oromo forces continue to resist the central Government and participate in ethnically based conflict.
[10] ‘Ethiopia – Lawmakers approved national dialogue effort’, 29 December 2021, The Washington Post, World Digest: Dec. 29, 2021 - The Washington Post
[11] ‘Oromo Liberation Army: On the ground with Ethiopian fighters’, 1 November 2021, BBC, Oromo Liberation Army: On the ground with Ethiopian fighters - BBC News
[12] ‘Tigrayan and Oromo forces say they have seized towns on Ethiopian highway’, 1 November 2021, Reuters, Tigrayan and Oromo forces say they have seized towns on Ethiopian highway | Reuters
It is apparent to the Tribunal that, at the present time, the internal ethnic conflict in Ethiopia is in a state of flux. Currently the Ethiopian national forces hold the ascendancy, however only a few weeks ago Addis Ababa was under threat from the Oromo and Tigrayan forces. This is a far from settled situation, in the view of the Tribunal. Given Ethiopia has a long history of ethnically motivated violence, unfortunately it appears calm will not be restored for some time. Against this backdrop, the Tribunal accepts that the applicant cannot return to Dire Dawa as a female with mixed Amhara and Oromo ethnicity, particularly given her home has been destroyed by Oromo forces. Nor can she safely reside in other regional areas such as the Oromia, Tigray or Amhara regions given her mixed ethnicity. Additionally, the Tribunal accepts that the applicant’s gender places her at increased risk of harm from males engaged in the ethnic conflict sweeping Ethiopia.
With regard to assessing whether the applicant faces a well founded fear of persecution on the basis of her mixed Amhara and Oromo ethnicity, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicant satisfies the aforementioned subjective requirement.
The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicant returns to Ethiopia now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that she would be physically injured or even killed by Oromo or Tigrayan forces. Additionally, the Tribunal finds that there is a real chance the applicant would be physically injured or even killed by other ethnic combatants given her mixed ethnicity. In making these findings, the Tribunal notes that ethnic violence in Ethiopia remains ongoing at the time of this decision.
Does the real chance of persecution extend to all areas of Ethiopia?
Having carefully considered the above pertinent evidence submitted by the applicant, and the contemporary country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of her mixed Amhara and Oromo ethnicity extends to the whole of Ethiopia in conformity with s.5J(1)(c) of the Act. Of note, the Tribunal is not satisfied that, at the present time, Addis Ababa or any other region is a secure location for the applicant, given the state of flux in the internal ethnic conflict underway in Ethiopia in combination with her particular circumstances.
Are there effective protection measures?
The Tribunal has duly considered whether ‘effective protection measures’ as defined in s.5LA of the Act are available to the applicant. Having regard to the contemporary country information concerning the effectiveness of State protection, the Tribunal is not satisfied that the applicant can access the effective protection of the Ethiopian State in the regions it controls, nor that there is a reasonably effective Police force to assist her, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution she faces as an ethnically mixed Amhara and Oromo. Indeed, it is clear to the Tribunal that presently the Ethiopian authorities cannot adequately protect civilians from ethnic violence perpetrated by the Oromo or Tigrayan forces. Furthermore, the mixed ethnicity of the applicant undermines the ability of the Ethiopian authorities to protect her, even if they had the capacity or desire to do so. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.
Other factors concerning the persecution
Having regard to the evidence, the Tribunal finds that the persecution which the applicant fears, in respect of her being of mixed Amhara and Oromo ethnicity, involves ‘serious harm’ in accordance with s.5J(4)(b) of the Act given it involves a threat to her life or significant physical harassment or ill-treatment. Further, the applicant’s mixed ethnicity is the essential and significant reason for the persecution which she fears, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicant fears involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.
Well founded fear of persecution

Having considered all the above circumstances, both individually and cumulatively, the Tribunal finds that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of her mixed Amhara and Oromo ethnicity (race). Her fear of persecution is well-founded as required by s.5J of the Act and therefore she is a refugee within the meaning of s.5H. Having reached the aforementioned conclusions, the Tribunal finds it is unnecessary to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk that she will suffer significant harm.
CONCLUSION
For the reasons outlined above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and she satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
K. Chapman
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 491

3 January 2022

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