1809968 (Refugee)

[2021] AATA 4173

1809968 (Refugee) [2021] AATA 4173 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809968

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Jason Pennell

DATE:23 August 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2021 at 10.44 am

CATCHWORDS

REFUGEE – Protection visa – Ethiopia –race – ethnic Amhara – imputed anti-government opinion – support for AYO and Ginbot 7 – father’s involvement with antigovernment political parties – no independent evidence of his father’s political activities –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
SZRSN v MIAC [2013] FCA 751

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Ethiopia applied for the visa on 16 May 2016. The delegate refused to grant the protection visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

3. The applicant appeared in-person before the Tribunal on 22 February 2021 to give evidence and present arguments. In addition, [Ms A] (the applicant’s wife) appeared before the Tribunal to give evidence and make submissions in support of the applicant.

4. The hearing was assisted by an interpreter in the Amharic and English languages. The Tribunal was satisfied the applicant understood the interpreter and the questions put to him during the hearing. The Tribunal further notes that the applicant did not raise any concerns with respect to the interpreter or any difficulty in understanding questions during the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (‘the Department’), and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

Applicant’s Identity & Country of Reference

1. The applicant stated that he was born on [date] in Addis Ababa Ethiopia.[1] The applicant provided the Department with a copy of the biodata page of his Ethiopian Passport[2] that confirmed the date and place of his birth. There is no evidence to suggest this is a bogus document and, as such, the Tribunal accepts the applicant’s identity.

   [1] Department file, [deleted], Doc ID No: [number]

   [2] Op Cit, Doc ID no: [number]

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

Applicant’s Migration History

1. The applicant arrived in Australia on [date] June 2015 on a [temporary visa]. The applicant has not departed Australia since arriving and applied for protection onshore on 16 May 2016.[3]

Claims for protection and supporting documentation

[3] Op Cit, Doc ID no: [number]

1. The applicant’s protection visa application[4] details his claims for protection as follows:  

   [4] Op Cit, Doc ID no: [number] @ questions 89-96

   I am seeking protection in Australia so that I do not have to return to:

   ‘ETHIOPIA’

   Why did you leave that country(s)?

   I left Ethiopia to perform as an artist in

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

   ‘I will be arrested, beaten and imprisoned due to my ethnicity and political affiliation. Detailed statement will be provided.’

   Did you experience harm in that country(s)?

   ‘Yes. I was arrested beaten and detained without any charges laid. I was released without warning.’

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

‘No. No because it is the authorities themselves that harmed me.’

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

‘No. No because everywhere I move in Ethiopia the security forces are there asking why I move. They also ask for a letter from my previous locality.’

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

‘Yes. I have been detained and released earlier with strict warning. The authorities suspect me of being affiliated with opposition groups and are looking for me.’

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

‘No. No, it’s the authorities that are looking for me.’

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

‘No. No because wherever I move in Ethiopia the local authorities will ask me where I cam from and why I am moving.’

1. The applicant’s representative summarised the applicant’s claims in submissions to the Tribunal dated 15 February 2021 as follows:[5]

   [5]Representative’s submissions dated 15 February 2021 @ [2]-[9]; AAT File No 1809968, Doc ID No: [number]

   (a)The applicant is a [age]-year-old male of ethnic Amhara from Addis Ababa, Ethiopia. The applicant’s father was, until his disappearance following arbitrary arrest by the Ethiopian authorities, an active member of one of the political movements against the ruling party in Ethiopia. The applicant was a young teenager at the time, so he has limited knowledge of the extent or details of his father’s political involvement.

   (b)The applicant’s father was detained and tortured by the Ethiopian authorities for a period of two years. During this time the applicant and his family were subjected to harassment and abuse culminating from the applicant’s father’s political involvement and his Amhara ethnicity.

   (c)In November 2010 the applicant was arrested alongside his father by the Ethiopian authorities. The applicant was held captive for a period of three months and during this time he was subjected to torture on the basis of an imputed anti-government opinion – the opinion was his father’s which was not shared by the applicant at this time. The applicant was subsequently released after signing an agreement to refrain from participating in any political organisations against the ruling party. He never saw his father again.

   (d)After the applicant was released from detention, he moved in with his uncle and aunt in Keranyo, a sub city within Addis Ababa. It was during this time the applicant established a close relationship with his aunt’s brother, [Mr B]. [Mr B] encouraged the applicant to be more politically cognisant of the plight of Amhara people. [Mr B] made the applicant more aware that the discriminatory treatment both he and his family were subjected to stemmed from his Amhara ethnicity. It was [Mr B]’s impassion to mobilise and grow a supporter base of people against the regime, coupled with the applicant’s recent torture at the hands of the Ethiopian authorities and his father’s disappearance, which catalysed the applicant’s political interest. However, unsurprisingly, given the applicant’s recent experience with the authorities, he was reluctant to become a formal member to any anti-government organisation but was enthusiastic to show his support in other ways.

   (e)In 2011 the applicant began providing monetary donations Amhara Youth Organisation (AYO) and Ginbot 7. The donations were made in cash and the applicant continued to financially contribute to AYO and Ginbot 7 despite periods of time when he left the country to work as a [performer]. The applicant would save money and give cash to [Mr B] upon his return to Ethiopia.

   (f)In 2015 the applicant came to Australia on [a temporary] visa. At the time it was the applicant’s intention to return home to Ethiopia pursuant to the conditions of his visa. Despite the previous experiences of harm in Ethiopia, the applicant felt that his donations to AYO and Ginbot 7 were so inconspicuous that there was no risk that it would come to the attention of the authorities.

   (g)In 2016, while still an employee of the [workplace], the applicant was notified of the disappearance of AYO supporters, including [Mr B]. Not long afterwards his sister informed him that authorities had come to his home looking for him. Without having the opportunity to confer with [Mr B], who continues to be missing to this date, the timing of the authorities search for the applicant indicated that [Mr B] had informed the authorities of the applicant’s identity.

   (h)The applicant applied for a protection visa due to his well-founded fear of persecution based on his imputed and actual political opinion as an anti-government supporter and his ethnicity as an Amhara.

Applicant’s evidence

1. The applicant’s evidence was that he was born in Addis Ababa, Ethiopia on [date]. The applicant claims to be a Christian and ethnic Amhara.  His evidence was that his parents died ‘some time ago.’

2. The applicant claimed to have memory problems and as a result was not able to recall many details including when his parents passed away. The applicant did not provide any medical report in support of his claim that he had difficulty with his memory. In addition, the applicant claimed that culturally it was not important to him to recall dates and times on which events in his life occurred. He did not provide any explanation to the Tribunal why this was the case.   

3. The applicant’s evidence was that has [number of siblings]. The applicant is youngest in his family. His evidence to the Tribunal was that he has [number of] sisters who all live in Addis Ababa and his [number of] brothers who live in Afar, Ethiopia.[6] His evidence provided in the Statutory Declaration dated 7 March 2018 was that his brother also lived in Addis Ababa.[7] The applicant’s evidence was that he does not have any contact with his brothers or sisters. His evidence was that he is not confident to speak to them as the call may be recorded by the authorities.

   [6]    Afar Region (formerly known as Region 2), is a regional state in north-eastern Ethiopia and the homeland of the Afar people. The capital of Afar is Semera. See a map of the Afar Region at    Department file [number] Doc ID 4238327

The applicant’s evidence was that his father had been in the military, after which he owned and operated restaurants. The applicant was not able to say when his father serviced in the military. In addition, he was not able to tell the Tribunal how long he owned and operated the restaurants as claimed.

The applicant’s evidence was that he attended school in Addis Ababa, completing year [level]. He claimed that after school he commenced to train as an [occupation] at [a] College but only attended for one month. As a result, he commenced working as a [Occupation 1]. The applicant was not able to say when he started working as a [Occupation 1].

While working as a [Occupation 1] the applicant became a [performer] at [a workplace] in Addis Abba. The applicant claimed while he was in Ethiopia, he worked with the [employer]  for various promotors. He was not able to identify any of promoters he worked for or say when he worked for each promoter.

The applicant claimed that his father had been active in one of the political movements against the ruling party in Ethiopia.  He claimed that his father had been detained and tortured by the Ethiopian authorities for a period of two years (from 2005 to 2007) during which time the applicant and his family were harassed and abused as a result of being ethnic Amhara. 

The applicant’s evidence was that in or about 2010 he and his father were arrested by the Ethiopian authorities. The applicant claims that his father had been raising money for Ginbot 7. The applicant stated that he was detained for a period of three months during which time he was tortured and interrogated about his father activities. He claimed that he was forced to sign a document by which he agreed to refrain from participating in any activities against the ruling party. He claims that he never saw his father again.

The applicant’s evidence was that after he was released from detention he went to live with his uncle and aunt in Kolfe Keranio, a sub city of Addis Ababa. It was during this time the applicant established a close relationship with his aunt’s brother, [Mr B]. At that time, [Mr B] was a [student] and an active member of Ginbot 7. He encouraged the applicant to be more politically active against the government in support of the Amhara people.  

The applicant claimed that partly because of his own experience and because he had witnessed other Amhara people hurt, he supported the Amhara Youth Organisation (AYO) and Ginbot 7. However, in circumstances where the applicant’s father had disappeared and the applicant had been detained and tortured, the applicant stated that he was too scared to be a formal member of either organisation but rather stated that he supported them by providing financial assistance. The applicant’s evidence was that he was never an office holder of either organisation or an active member. He did not attend any rallies or meetings. Rather, in or about 2011 he supported AYO and Ginbot 7 by making cash donations to [Mr B].  

From 2012 to 2015 the applicant travelled in and out of Ethiopia with [his employer]. During this time, he claimed that he continued to support AYO and Ginbot 7 financially by paying cash to [Mr B]. 

The applicant’s evidence was in 2015 he travelled to Australia to work as a [performer].’  He travelled with the [group] for approximately one (1) year performing to towns and cities around Australia. The applicant confirmed to the Tribunal that while he was traveling abroad with the [employer], he had no difficulty in leaving and returning to Ethiopia. He was stopped by the authorities and his identity was never questioned or checked. He confirmed that he he had no difficulties upon his departure to Australia. The applicant stated that he was an ordinary person of no interest to the Ethiopian government.

While he was in Australia, the applicant claimed that he received bad news from his sister that [Mr B] had been arrested.  The applicant claimed that given he had been arrested in 2010 and that he had provided financial support to both the AYO and Ginbot 7, he was not confident of returning to Ethiopia. As a result, he decided to remain in Australia. The applicant claimed that he has not spoken to his family after receiving the news about [Mr B] and is not able to say what has happened to his uncle or [Mr B].   

While in Australia the applicant married [Ms A]. [Ms A] is Ethiopian and an Australian resident. The applicant and [Ms A] met approximately three (3) years ago and they got married in Melbourne in January 2021. They have a [child] and are due to have [another].  The applicant is currently engaged in casual work in Australia.

The applicant claims that if he is returned to Ethiopia he will be detained and tortured. He claims that notwithstanding the change in government in Ethiopia as an ethnic Amhara, given his family background and his support for AYO and Ginbot 7 he will be seriously harmed if he is returned to Ethiopia. 

Documentation.

The Tribunal has considered the following documentation as provided by the applicant:

(a)Statutory Declaration by [Mr C] dated 7 March 2018.[8]

(b)Statutory Declaration by [Mr C] dated 2 February 2020.[9]

(c)Applicant’s submissions dated 15 February 2021.[10]

(d)DFAT Country Information Report - Ethiopia dated 12 February 2021[11]

[8]    Dept File [NUMBER] Doc ID 4238327

[9]    AAT file No 1809968 Doc ID:[number]

[10] ibid

[11] AAT file No 1809968 Doc ID:8196302

COUNTRY INFORMATION

1. The Tribunal, in accordance with the Ministerial Direction No 84 made under s.499 of the Act, also had regard to the country information assessments prepared by the DFAT. In particular, the Tribunal has referred to the DFAT Country Information Report - Ethiopia dated 12 August 2020 (‘the DFAT Report’) and those parts of the report reproduced in Annexure ‘A’ attached to these reasons.

2. The applicant provided the Tribunal with a copy of document entitled DFAT Country Information Report - Ethiopia dated 12 February 2021 (‘DFAT February Report’).[12] The DFAT website only refers to the DFAT Report and not the DFAT February Report. An inspection of the DFAT February Report shows that while the covering page is dated 12 February 2021 each page in the body of the report states ‘DFAT Country Information Report Ethiopia (August 2020).’ A comparison of the DFAT report and the DFAT February Report reveals that the body of the text in each report is the same. As a result, the Tribunal has relied on the DFAT Report as provided on the DFAT website.   

   [12] ibid

ASSESSMENT OF CLAIMS AND FINDINGS

Credibility 

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

2. The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim[13]. Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[14]

   [13] s.5AAA Migration Act 1958.

   [14]   MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

3. A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility. Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. ^[15]

   [15]   Guo v MIEA; Pan v MIEA (1996) 64 FLR 151 per Foster J at 194.

4. If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[16] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.

   [16]  The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued February 2019) at para 196.

5. In this case, despite the applicant having provided detailed statutory declarations, his evidence to the Tribunal was evasive and lacking in any specific details. Specifically, the applicant was not able to recall personal details such as the name of his school, how long ago his parents passed away and how long his father owned and operated a restaurant business as claimed. The applicant claimed that he was not able to recall specific details because he had a ‘memory problem.’ The applicant did not provide any details of the nature or extent of his ‘memory problem.’ In addition, the applicant did not make any claim in relation to his mental health and did not provide the Tribunal with any medical report to support such a claim. While the Tribunal accepts that given the passage of time an applicant may fail to recall some details of his claim, but, in the present circumstances however, where the applicant has provided detailed statutory declarations and in the absence of any independent medical report, the Tribunal does not accept that the applicant has a ‘memory problem’ as claimed. As a result, the Tribunal has some doubt concerning the credibility of the applicant’s evidence in relation to his claim.

The accepted facts

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

   (a)was born in Addis Ababa, Ethiopia on [date].

   (b)is a Christian and ethnic Amhara. 

   (c)parents are deceased.

   (d)has [number of siblings] living Ethiopia.

   (e)attended school in Addis Ababa, completing year [level].

   (f)worked as a [Occupation 1] and was a [performer] at the [workplace] in Addis Abba.

Applicant’s Relevant Grounds

1. The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act by as an ethnic Amhara and his political opinion. 

2. In considering the applicant’s race as a ground for the persecution claimed to have been suffered by the applicant, there is no test to be applied. Rather, it is to be understood in the widest sense[17] to include all kinds of ethnic groups that are referred to as ‘races’ in common usage. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status is not definitive but does provide some guidance as to race as a well-founded fear of persecution.[18] It states:[19]

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

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

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

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

   [19] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status @ paragraphs 68-70

3. In this case, the applicant has claimed that he is an ethnic Amhara, which in the absence of any evidence to the contrary, the Tribunal has accepted. Accordingly, the Tribunal accepts that the applicant’s claim falls within the scope of s.5J(1)(a) of the Act by reason of his race as an ethnic Amhara.

4. In addition, the applicant has claimed that he has been persecuted by reason of his actual and imputed political opinion. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status refers to political opinion as follows:[20] .

   80. Holding political opinions different from those of the Government is not in itself a ground for claiming refugee status, and an applicant must show that he has a fear of persecution for holding such opinions. This presupposes that the applicant holds opinions not tolerated by the authorities, which are critical of their policies or methods. It also presupposes that such opinions have come to the notice of the authorities or are attributed by them to the applicant. The political opinions of a teacher or writer may be more manifest than those of a person in a less exposed position. The relative importance or tenacity of the applicant's opinions - in so far as this can be established from all the circumstances of the case - will also be relevant.

   81. While the definition speaks of persecution “for reasons of political opinion” it may not always be possible to establish a causal link between the opinion expressed and the related measures suffered or feared by the applicant. Such measures have only rarely been based expressly on “opinion”. More frequently, such measures take the form of sanctions for alleged criminal acts against the ruling power. It will, therefore, be necessary to establish the applicant's political opinion, which is at the root of his behaviour, and the fact that it has led or may lead to the persecution that he claims to fear.

   82. As indicated above, persecution “for reasons of political opinion” implies that an applicant holds an opinion that either has been expressed or has come to the attention of the authorities. There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reasons of political opinion…………...

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

5. The Full Federal Court in V v MIMA[21] observed in relation to a person’s political opinion that:

   (a)it is enough that a person holds (or is believed to hold) views antithetic to instruments of government and is persecuted for that reason;[22]

   (b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[23]

   (c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[24]

   (d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion; [25]

   (e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society. [26]

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

   [22] Op Cit @ 363

   [23] ibid

   [24] V v MIMA (1999) 92 FCR 355 @367

   [25] ibid

   [26] V v MIMA (1999) 92 FCR 355 @39

6. Whether an applicant’s fear of persecution is for reasons of their political opinion is a question of fact and degree, having regard to all the circumstances.[27]  The Tribunal notes that to come within s 5J(1)(a) of the Act an applicant’s political opinion must constitute at least the essential and significant reason or reasons for the persecution claimed pursuant to s.5J(4)(a) of the Act.

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

7. In this case the applicant submits[28] that he has a well-founded fear of persecution by reason of actual political opinion because of the monetary contributions made to AYO and Ginbot 7. In addition, he claims that he is imputed with a political opinion by reason of his father’s involvement with antigovernment political parties and his father ‘s disappearance (presumed killed) because of such involvement. The applicant claims that as a result of working closely with his father in the restraint he has been imputed with his political opinion.

   [28] Representative’s submissions dated 15 February 2021

8. Based on the applicant evidence, the Tribunal accepts that his claim falls within the scope of s.5J(1)(a) of the Act by reason of his actual and/or imputed political opinion.

9. Finally, the applicant claims as a failed asylum seeker and as an ethnic Amhara being subjected to state sanctioned violence targeting Amhara by other ethnic groups, he is a member of a particular social group. Based on the applicant’s evidence the Tribunal accepts that he is a member of a particular social group (PSG) within the scope of s.5J(1)(a) of the Act as claimed.

The Applicant’s well-founded fear.

1. Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country. In Chan v MIEA[29] the Court, when considering ‘well-founded fear’ for the purposes of the Convention, held that it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[30]

   [29] (1989) 169 CLR 379 at 396.

   [30] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.

2. The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.

3. However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [31]stated:

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

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

1. In MIEA v Guo, the Court stated that: ^[32]

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

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

2. In this case, the applicant claims that, if he is returned to Ethiopia, there is a real chance he will suffer serious harm by the authorities by reason of his ethnicity, political opinion or as a member of a PSG.  For the reasons detailed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on an objective basis if he is returned to Ethiopia.    

Applicant’s Claims as a Refugee

As an ethnic Amhara

1. The applicant claims that as an ethnic Amhara there is a real chance that he will be seriously harmed by reason of state sanctioned violence that targets Amhara’s in Ethiopia. As a result, he claims that he will face serious harm by both state and non-state actors.[33]

   [33] Applicant’s submissions dated 15 February 2021.

2. The country information[34] states that Amhara people are the second-largest ethnic group in Ethiopia (26.9 per cent of the population.) While they reside predominantly in Amhara State, they are present throughout Ethiopia. In addition, Amharas are the largest ethnic group in Addis Ababa with approximately 1.3 million living in the capital. [35]  Generally, Amharas are Orthodox Christian and their language, Amharic, is the official national language.

   [34] DFAT Report @ p.24

   [35] Ibid, per 2007 census

3. Prior to the Ethiopian People’s Revolutionary Democratic Front (EPRDF) coming to power in 1991, the Amharas governed Ethiopia. The Tigrayans held great influence over the EPRDF and as a result the Amhara’s (together with the Oromo) felt marginalised and harbour considerable resentment toward the Tigrayan’s while the EPRDF were in power. Large scale antigovernment protests occurred in 2014 in both the Oromia and Amhara States which prompted a declared state of emergency under which twenty thousand (20,000) people were arrested and on thousand (1000) people killed.[36]  The protests ultimately lead to the resignation Prime Minister Desalegn in February 2018.

   [36] DFAT Report @ p.9

4. In April 2018 Abiy Ahmed was appointed as Prime Minister who engaged in a reform agenda under which its reported that the human rights situation has improved.[37] Its reported that Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression.[38] Its reported[39] that the Amharas are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military. In addition, approximately one quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers at the time of publication. Political parties representing Amhara interests are active.[40]

   [37] ibid

   [38] Op Cit @ p.23

   [39] ibid

   [40] ibid

5. The DFAT report[41] assesses the arrest of Amharas during the 2014-18 anti-government protests was not ethnically motivated but reflected the then-federal government’s sensitivity to political opposition. The applicant’s evidence that he was detained by the authorities because of his imputed and actual political opinion rather than his ethnicity is consistent with the available country information. The DFAT report[42]  also states that Amhara’s face a low risk of official discrimination based on their ethnicity, including employment in the public sector. There was no evidence that the applicant had been threatened or detained based on his ethnicity. Nevertheless the DFAT report[43]  does note that Amhara have been subjected to ethnic-based attacks in states where they do not constitute a majority (particularly in Benishangul-Gumuz)  and like most other groups, they face a moderate risk of violence in areas or states where they are a minority.

   [41] ibid

   [42] ibid

   [43] ibid

6. The applicant was born in Addis Ababa, Ethiopia. His sisters remain living in Addis Ababa. While he claimed that his brothers now live in Afar, there was no evidence that if returned to Ethiopia he would live anywhere else other than where he was from, being Addis Ababa.  Therefore, based on the available country information and the applicant’s own evidence there is no evidence to suggest that there is a real chance the applicant will be seriously harmed if he returned to Ethiopia because of him being an ethnic Amhara. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia because he is an Ethnic Amhara.

Applicant’s Imputed Political Opinion.

1. The applicant claims that he will be imputed with anti-government political opinion because his profile is linked to his father.[44] The applicant’s evidence was that his father was a member of anti-government political parties, the result of which he was detained and killed. The applicant claimed that he had a close relationship with his father having worked with him in the family restaurant. As a result, its likely others perceived him as supporting his father’s political opinion.[45]

   [44] Representative’s submissions dated 15 February 2021 @ p.2

   [45] ibid

2. The applicant claimed in his Statutory Declaration dated 7 March 2018[46] that his father was discharged from the military due to his Amhara ethnicity. The applicant’s evidence was that many Amhara were discharged from the military as it was believed they were against the EPRDF. The applicant’s evidence was that after his father was discharge from the military, he ran a family restaurant and bar with the assistance of the applicant’s [brother].[47]  

   [46] Statutory Declaration by [Mr C] dated 7 March 2018; Dept File [NUMBER] Doc ID 4238327

   [47] Op Cit @ [12]-[14]

1. The applicant claimed that prior to the 2005 general elections in Ethiopian his father was politically active supporting the Coalition for Unity and Democracy (‘CUD’) (referred to by the applicant as ‘Kinijit’).[48] The CUD was a coalition of four political parties of Ethiopia[49] which combined to contest the Ethiopian General Elections held on 15 May 2005.[50]

   [48] Op Cit @ [14]. The Coalition for Unity and Democracy (CUD) was commonly referred by its Amharic abbreviation, ‘Qinijit’ which is often written in English as in English writing often referred to as ‘Kinijit’

   [50] At the legislative elections, 15 May 2005, the party won 89 out of 527 seats in the House of People's Representatives, representing the Regions of Amhara, Oromia, and of the Southern Nations, Nationalities, and Peoples (SNNPR), as well as in the chartered cities of Dire Dawa and Addis Ababa. (see; "Ethiopian Parliament". Archived from the original on 22 March 2006,hppt://web.archive.org/web/20060322104143/ Despite the CUD winning 99% of Addis Ababa, the ruling party continued to govern the city. The CUD and the EU election observers said there was heavy election rigging and the opposition might have won more seats.

2. Towards the end of 2005 the CUD became a political party in its own right known as the ‘Coalition for Unity and Democracy Party,’ led by Dr. Hailu Shawul. After the election the CUD leadership accused the ruling EPRDF of committing election fraud and called for a week of riots and a boycott of businesses owned by members of the EPRDF, as well as boycotting the new parliament. In response, the EPRDF stripped CUD legislators of their parliamentary immunity and arrested many of the CUD members.[51] Dr Hailu was accused of being responsible for having planned riots, in which it was claimed 40 people were killed, and was placed under house arrest in early June 2005. Thirty-eight (38) senior CUD figures were found guilty of charges connected to mass protests after the disputed elections.[52] After 20 months in jail, in June 2007 they were pardoned[53] and released. Upon their release the CUD prisoners signed an apology letter admitting partial responsibility for the post-election violence and promising not to use unconstitutional means for any political aims.[54]

   [51] BBC News 11 June 2007; news.bbc.co.uk/2/hi/africa/6740929.stm

   [53] Reuters 2007 ‘Ethiopia frees 38 opposition members’

   [54] ibid

3. Amnesty International reported that more than one hundred (100) CUD members were arrested in October 2006 in connection with the publication of a calendar of action for non-violent civil disobedience. It expressed concern that at least one of those arrested was tortured while in detention and that further arrests were made as a result of his statements made under torture.[55]

   [55] Amnesty International 2006, ‘Ethiopia: Further Information on torture/ incommunicado detention: Alemayehu Fantu’, Amnesty International website, 3 November >

   Its reported that in or about October 2006 the CUD ceased to exist after the 2005 election and is no longer accredited as a political party. While members of the Ethiopian Parliament continued to carry identification cards issued by the CUD, National Election Board of Ethiopia (NEBE) deputy head Mr Mengesha stated that it did not guarantee eligibility. He noted that the ‘CUD that existed in the pre-election had long taken its exit.’[56]

   [56] Wayback machine, Walta Information Center, Addis Ababa, Ethiopia web.archive.org/web/20071007234749/>

   The applicant’s evidence of his father’s activities with the CUD was that he was an influential person in the community and that he contributed directly and arranged for donations to be made the CUD. He claimed that his father was responsible for arranging the ‘Equb.’[57] The applicant stated that his family informed him that the authorities were suspicious of ‘Equb’ and suspected that he was raising money for opposition parties. As a result, he claimed the authorities would try to force his father to close his business early so that he could not earn money to make donations to the opposition parties. The applicant did not provide any independent evidence of his father’s political activities or any actions taken against him by the authorities.  

   [57] An ‘Equb’ is a way of raising or borrowing money involving a system where members of the Equb pay into a pool an amount of money on a regular basis (eg. weekly, monthly). After an agreed period, an appointed member of the Equb will take all the money raised. The process is then repeated to allow all members of the Equb to collect money raised.

4. The applicant claims that in or about August 2005 his father was arrested at his business and taken to [a] Police Station.[58]  The applicant claimed that his father was held for two (2) years and released in or about September 2007.[59] The applicant claimed that while his father was in prison he and his family were integrated and harassed by members of the police force.[60] The applicant did not provide any evidence of his father having been arrested as claimed.

   [58]  Statutory Declaration by [Mr C] dated 7 March 2018 @ [22]; Dept File [NUMBER] Doc ID 4238327

   [59] Op Cit @ [23]

   [60] Op Cit @ [24]

5. While the Tribunal has doubts about the creditability of the applicant’s evidence, in the absence of any evidence to the contrary it accepts his father was involved with the CUD as claimed and that he was detained for a period of two years as claimed. 

6. The applicant’s oral evidence was that after his father’s release he returned to the family business and continued to donate to Ginbot 7. The applicant did not provide any independent evidence of his father involvement with Ginbot 7. Nevertheless, he claims that he started working in the ‘Equb’ as a secretary. He claims that in or about November 2010 his father and he were arrested at home. The applicant claims he has no knowledge of where his father was taken and stated that he never saw him again. The applicant’s evidence was that he was taken to [a] Police station where he was held for three (3) months.[61]  The applicant claimed that when he was released, he was forced to sign a document agreeing not to be involved in any opposition political organisation.[62]

   [61] Op Cit @ [29]- [35]

   [62] ibid

7. The country information reports that Ginbot 7 is an Ethiopian opposition political organisation, founded in 2008.[63]^.   Ginbot 7 means "15 May", the date of the Ethiopian general election in 2005.[64] According to its mission statement,[65] Ginbot 7's goal is ‘the realization of a national political system in which government power and political authority is assumed through peaceful and democratic process based on the free will and choice of citizens of the country.’

   [63]   Ginbot 7 was established by Andargachew Tsige and Berhanu Nega (see New York Times, "Once a Bucknell Professor, Now the Commander of an Ethiopian Rebel Army". 31 August 2016. BBC News, Ethipoia Jails members of Outlawed Group Ginbot 7 dated 12 January 2018, BBC NEWS ‘Ginbot 7's Andargachew Tsege: Ethiopia confirms arrest’ dated 9 July 2014; G7 Mission Statement; >

   In 2010, Ginbot 7 allied with the Afar People's Party and the Ethiopian Movement for Unity and Justice to create a coalition called the "Alliance for Liberty, Equality and Justice in Ethiopia" (ALEJE).[66] Up untilmid-2018, Ginbot 7 was considered a terrorist organisation by Ethiopia and the Intergovernmental Authority on Development (‘IGAD’).

   [66] Ethiopian Review, Ethiopian News and Opinion Journal, ‘Ginbot 7 forges alliance with two other parties’ dated 27 August 2010; ethiopianreview.com/content/29003

8. Once again while the Tribunal has reservations concerning the applicant’s evidence, however, in the absence of any evidence to the contrary and based on the available country information, the Tribunal accepts that his father and he were arrested and detained as claimed.

9. The applicant claims that if he is returned to Ethiopia, he will be persecuted as he has been imputed with the political opinion of his father. However, the Tribunal notes the applicant’s evidence that he was released by the authorities on the basis that he executed a document that he not engage in any activities against the government.[67] The applicant’s own evidence was that he believed he was released because he could not provide any useful information to the authorities.[68] In circumstances where the applicant had been interrogated and released on the basis that he had no information and had signed a document promising not to act against any political organisation. The Tribunal finds it unlikely that he would be imputed with his father’s political opinions as claimed. The Tribunal notes that the applicant continued to live in Ethiopia for a further four years without any incident. During this time, he was able to travel abroad [on] various occasions and ultimately leave the country for Australia without incident.  As such the Tribunal finds that there is no real chance the applicant will be imputed with his father’s political opinion if he is to return to Ethiopia.

   [67] Statutory declaration by [Mr C] dated 7 March 2018 @ [35]; Dept File [NUMBER] Doc ID 4238327

   [68] ibid

10. Finally, the Tribunal notes that in April 2018 Abiy Ahmed was appointed as Prime Minister. The country information notes that since his appointment he has embarked on an ambitious reform agenda and that the human rights situation has improved significantly. [69] Its reported[70] that Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously exiled opposition groups and initiated reform of legislation previously used to arrest and prosecute government critics. In June 2018, the federal parliament removed Ginbot7, the Oromo Liberation Front (OLF) and Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The three organisations have now renounced their armed struggle[71] and have returned from exile to now participate in the political process.[72] Its reported[73] that more than ten thousand (10,000) political prisoners have been released since 2018.  The leaders of Ginbot 7, Andargachew Tsege and Berhanu Nega have been released from prison and returned from exile to be able to engage in political activities.[74]  Its reported that political opposition parties now operate in Ethiopia with greater freedom. Its reported that anti-government protests are common in Ethiopia. In January 2020 large scale anti-government protest occurred in Amhara State accusing the government of not doing enough to secure the release of 27 ethnic Amara university students who had been abducted in Oromia State.[75] DFAT has assessed that tolerance for political dissent has increased considerably since April 2018. Opposition parties can now organise and operate more freely and its assessed that their members face a low risk of harassment, arrest, and detention by virtue of their political affiliations and views. Its assessed by DFAT that Ethiopians can openly criticise the ruling party.[76]

    [69] DFAT Report @ p.9

    [70] ibid

    [71] DFAT Report @ p.28

    [72] Op Cit @ p.16

    [73] Op Cit @ p.28

    [74] ibid

    [75] DFAT Report @ p.28

    [76] Op Cit @ p.29

11. In July 2021, Ethiopia ruling Prosperity Party was declared the winner of the federal election conducted June 2021.[77]  The election victory assured a second term of Prime Minister Abiy Ahmed. 

    [77] The Guardian, ‘Abiy Ahmed wins Landslide victory in Ethiopian election.’ 11 July 2021;

12. Its reported that Tigrayans, whose influence at federal level has declined since 2012, are sceptical of Abiy’s reform agenda.[78]  The Tigrayans fear that their community is under threat as anti-Tigrayan sentiment has become more overt since Abiy’s election. The Government of Tigray have engaged in several border disputes predominately with the state Government of Amhara with ethnic Tigrayan and ethnic Amhara having clashed in the Walkait and Raya districts.  In addition, armed clashes between the TPLF and federal forces commenced on 3 November 2020, when the TPLF attacked the Northern Command of the Ethiopian army stationed across Tigray, including in the regional capital Mekelle. [79] On 29 July 2021, The BBC stated that ‘ fighting is being reported in Ethiopia's Amhara state - the latest sign that the war that erupted in the Tigray region in November is spreading’. According to The BBC, ‘[f]ederal forces as well as Amhara regional troops were involved in fighting Tigray rebels on three fronts’.[80] The expansion of military operations by the TPLF into parts of neighbouring Afar and Amhara regions has resulted in approximately 3000,00 people being displaced.[81]

    [78] Op Cit @ p.23

    [79] Anadolu News Agency, 22 July 2021, 20210723140009

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

    [81] ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’, BBC News, 5 August 2021, 20210810114644

13. Therefore, according to the available country information any harm the applicant may face as an ethnic Amhara after the re-election of President Abiy would primarily involve any relationship he has with the TPLF and Tigrayan advances on Amhara territory. The applicant did not provide any evidence of him having any encounter with the TPLF or that he would affect by the Tigrayan advances into Amhara territory, being from Addis Ababa.     

14. Therefore, based on the country information which assesses that opposition political parties can operate freely in Ethiopia, even if the applicant was imputed with his father’s political opinion (which the Tribunal has specifically found he would not) the Tribunal finds that there is no real chance the applicant would suffer serious harm by reason of him being imputed with his father’s political opinion if he was returned to Ethiopia.   

Applicant’s Actual Political Opinion.

1. In addition, the applicant claims that he faces a risk of persecution for his political opinion because of the monetary contribution made to organisation being Ginbot 7 and AYO. The applicant did not provide any independent evidence of his association with each of these organisations. The applicant’s representative confirmed in their legal submissions to the Tribunal that they were not able to locate any published material on the AYO and that the activities of Ginbot 7 had been regularised in 2018.[82]   

   [82] Representative’s submissions dated 15 February 2021 @ [28]

2. The applicant’s evidence was that in 2011 he made contributions to AYO and Ginbot 7 of about $150 Ethiopian Birr (i.e. $AUD4.51)[83] per month.[84] He claims that from 2012 to 2015 while he was traveling overseas with the [employer] he continued to make financial contributions to the organisation. His evidence was that he made all the donations in cash directly to [Mr B]. As a result, there are no bank transfer records of his contributions being made.[85]  The applicant’s evidence was that he was not a member of either organisation and was not involved in their management or any of their activities.

   [83] wise.com/au/currency-converter/aud-to-etb-rate?amount=100 (calculated at a rate of Ethiopian Birr equals 0.030 Australian Dollar)

   [84] Statutory Declaration by [Mr C] dated 2 February 2020 @ [25]; AAT file No 1809968 Doc ID:[number]

   [85] Op Cit @ [26]

3. Based on the applicant’s evidence and in the absence of any evidence to the contrary the Tribunal accepts that the applicant was not involved with Ginbot 7 or AYO but made financial contribution directly to [Mr B] in cash as claimed.

4. Based on the applicant’s own evidence it is difficult to see how the authorities would have any knowledge of him supporting either AYO or Ginbot 7. He was not a member of either group and not involved in any of their activities. In addition, all financial contributions by the applicant were made, in cash, directly to [Mr B] and not to either political party. As such there is no transaction record of him making any donation. As such, given that the applicant’s only involvement in either party was making the cash donations, there appears to be no real chance the applicant would be identified as a supporter of AYO and Ginbot 7. 

5. The applicant claims that in May 2016 his uncle’s wife informed him that [Mr B] had been taken. As such he was scared that [Mr B] would tell the authorities about him. The applicant’s evidence about [Mr B]’s arrest and detention as claimed was vague and lacking any detail. The applicant made no enquiry about [Mr B]’s arrest including his location and the reasons for his arrest. The applicant claims that he spoke to his sister who informed him that authorities had been to their home looking for him. The applicant was not able to provide any details of the authorities visit and was not able to say if the authorities had returned. His evidence was that he has not spoken to his sister or another member of his family since that time. His evidence was that he was not confident of speaking to them as their call may be recorded. However, in circumstances where the applicant has been able to travel into and out of the country without issue, and there is no record of him having being a supporter of an opposition party and more recently the change in the pollical position of the government since the election of President Abiy, the Tribunal does not accept that his call would have been monitored as claimed. The applicant’s evidence in relation to the authorities arresting [Mr B] appeared to be contrived and lack any credibility. It appeared to have been fabricated for the purposes of improving his protection claim. Given the gravity of the [Mr B]’s arrest the Tribunal would have expected the applicant to have at least been able to provide some updated information as to [Mr B]’s circumstances or fate. As such the Tribunal does not accept the applicant’s evidence in relation to the arrest of [Mr B] and the authorities searching for him at his home.

6. In any event even if  the Tribunal did accept the applicant’s evidence that [Mr B] had been taken as claimed (which the Tribunal specifically found he was not)  based on the country information referred to above, there appears no basis for the applicant’s claims that he would be detained by the authorities due to him being a supporter of either AYO and / or Ginbot 7. The country information above refers to the fact that political opposition parties now operate in Ethiopia with greater freedom and that the tolerance for political dissent has increased considerably since April 2018. Opposition parties are now able to operate more freely, and their members face a low risk of harassment, arrest, and detention by virtue of their political affiliations and views. Its assessed by DFAT that Ethiopians can openly criticise the ruling party.[86] In circumstances where the applicant was not a member and not involved in any activities of a political party having made cash donations to a relative rather than to any organisation directly,  it is extremely unlikely that the authorities would have been aware of his financial contributions. There was no evidence that [Mr B] had informed the authorities that the applicant had made the donations as claimed. Even if [Mr B] had done so in light of the current country information and the passage of time, it is extremely unlikely that the authorities would be interested in the fact that the applicant made cash donations to the AYO and Ginbot 7 prior to the election of Abiy, that is more than six years ago. The applicant has been able to travel into and out of Ethiopia on previous occasions without issue. Accordingly, the Tribunal does not accept that he has a raised political profile because of his father’s activities or as a result of having been detained previously, as claimed. Finally, the applicant has not been involved in political activities while he has been in Australia and there is no evidence to suggest that he would be involved in any political activities opposing the government upon his return to Ethiopia  In fact given the current conflict between the government and the TPLF, according to the current country information opposition groups such as Ginbot 7 and AYO are no longer the focus of the government. In fact, it’s likely that such groups in face of the conflict with the TPLF are likely to join the government in opposing the Tigrayan advances into Amhara and others territory.   

   [86] Op Cit @ p.29

1. As such the Tribunal finds that there is no real chance the applicant would be seriously harmed if he is returned to Ethiopia by reason of his political opinion as a result of having made cash contributions to AYO and Ginbot 7 as claimed. 

Failed Asylum Seeker

1. The applicant claims that he will seriously be harmed in the event he is returned to Ethiopia as a failed asylum seeker. The applicant claims that since June 2020 Ethiopia has arbitrary arrested and detained dozens of opposition members and journalists for prolonged period.[87] In support of his claim the applicant, in his submissions, referred to the Human Rights Watch Report[88] (Human Rights Report’) that states:

   ‘Though credible and thorough investigations into complex abuses and events take time, Human Rights Watch believes that in several cases police authorities sought to stretch or ignore legal requirements to prolong suspects detentions beyond what was justified by law. For example, they repeatedly appealed or seemed to ignore bail orders, requested more time to investigate, or transferred suspects between police authorities, some with overlapping jurisdictions, without informing relatives or counsel….’

   [87] Representative’s submissions dated 15 February 2021 @ p9

   [88] Human Rights Watch Ethiopia, Ethiopia Opposition figures held without charge’ dated 15 August 2020, >

   The Human Rights Report refers to arrests the authorities have made against journalists and opposing parties considering the socio-political tensions that developed after the government’s decision to delay elections due to COVID-19. The report did not refer to failed asylum seekers returning to Ethiopia. As such the Tribunal places no weight on the Human Rights Report in relation to the applicant’s claims as a failed asylum seeker.    

2. The Tribunal notes that the DFAT report notes that since 2018 the authorities typically have welcomed voluntary returnees to Ethiopia, including government critics and opponents. DFAT assess that returnees, including failed asylum seekers, face a low risk of monitoring, harassment, detention, and official discrimination. The DFAT Report notes that people who openly criticise the ruling party while outside the country face a low risk of official harm on their return. It reports that under the current government failed asylum seekers face a low risk of harm including where they have sought asylum on political grounds.[89] In light of the current country information that reports that members of opposition parties have been allowed to return and operate in Ethiopia since the election of President Abiy, the Tribunal finds that there is no real chance the applicant will suffer serious harm if he is returned to Ethiopia as a failed asylum seeker as claimed.

Applicant’s family  

[89] DFAT Resport @ p.48

1. The applicant’s evidence was that while he has been in Australia, he married [Ms A]. [Ms A] is Ethiopian and an Australian resident. The applicant and [Ms A] met approximately three (3) years ago and got married in Melbourne in January 2021. They have a [child] and were due to have [another]. 

2. There was no evidence that the applicant’s wife and family would return to him if he was to return to Ethiopia. However, if his family were to return with the applicant then, for the reasons already detailed in this decision in considering the applicant’s claims, the Tribunal finds that they would not be seriously harmed in Ethiopia. Consequently, the Tribunal finds that there is no real chance of serious harm to the applicant by reason of any harm that his family would suffer upon their return to Ethiopia.

3. However, the fact that the applicant’s wife and the applicant’s children are or are entitled to be Australian residents, the Tribunal accepts that they would be entitled to remain in Australia.  Therefore, a claim arises on the basis that the applicant, if returned to Ethiopia would be separated from his wife and family. The Tribunal accepts that if the applicant was returned to Ethiopia, he would suffer emotional stress because of being separated from his family. However, the Tribunal notes that any harm suffered by the applicant as a result of being returned to Ethiopia and therefore separated from his family does not constitutes systematic or discriminatory conduct for the purposes of s.5J(4) of the Act.   As a result, the Tribunal finds that there is no real chance of serious harm because of the applicant being separated from his family as a result of returning to Ethiopia

4. Therefore, in circumstances where the Tribunal has found that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia by reason of being an ethnic Amhara or as a result of his imputed or actual political opinion. Based on the available country information the Tribunal does not accept that the applicant will face serious harm as a failed asylum seeker if he is returned to Ethiopia. Finally, the Tribunal finds that he will not be seriously harmed because of being separated from his family upon his return to Ethiopia.  As such it finds that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia as a failed asylum seeker.

5. Therefore, for the reasons above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.5J(1)(a) and 5J(1)(b) of the Act and that the applicant is not refugee pursuant to s.5H of the Act. As such, the Tribunal finds that the applicant does not satisfy the criterion set out in s.36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

Complementary protection

1. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

2. The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment.  In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to Ethiopia by reason that he is an ethnic Amhara, by reason of his actual and/or imputed political opinion and as a failed asylum seeker.

3. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[90] It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant harm as a foreseeable consequence of the applicant being removed from Australia to Ethiopia by reason of him being ethnic Amhara, by reason of his actual and/or imputed political opinion and as a failed asylum seeker.

   [90] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

4. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm in relation to each of his claims. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.

100.While the Tribunal accepts that the applicant has had a difficult life, in particular the fact that his parents are now deceased and that he has little contact with his siblings, the Tribunal has not accepted that he would be seriously harmed as a result of his ethnicity or his actual and/or implied political opinion. In addition, it has not accepted that he will be seriously harmed if he is returned to Ethiopia because of being a failed asylum seeker. As such, the Tribunal finds that there is no real risk of the applicant being significantly harmed if returned to Ethiopia pursuant to s.36(2)(aa) of the Act.

Applicant’s family

101.In addition, the Tribunal has considered if there is a real risk the applicant will suffer significant harm because of being separated from his family. Significant harm is exhaustively defined in s.36(2A).  It is a requirement that any pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.

102.As referred to above there was no evidence that the applicant’s wife and family would return to him if he was to return to Ethiopia. However, if his family were to return with the applicant then, for the reasons already stated the Tribunal finds that his family would not be seriously harmed in Ethiopia.  Consequently, the Tribunal finds that there is no real risk of significant harm to the applicant by reason of any harm that his family would suffer upon their return to Ethiopia.

103.In SZRSN v MIAC the Federal Court confirmed that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[91] In this case the Tribunal does not accept that there is any intention to cause the applicant harm by separating the applicant from his family. While the Tribunal accepts that the separation from his family will cause the applicant some hardship and distress, the Tribunal does not consider that it is there is any intention in the act of separating the applicant from his family to cause any significant harm to the applicant. SZRSN v MIAC the Federal Court noted the circularity in the operation of s.36(2)(aa) were harm to arise from the actual act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[92] 

[91] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji.

[92] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [64].

104.As such the Tribunal finds that the actual act of removal of the applicant from Australia falls within the scope of s.36(2)(aa), as it would appear from the words of s.36(2)(aa) and s.5(1) that these provisions do not encompass harm of this nature. The Tribunal notes that it may be possible in this case for the applicant to make an application for a partner visa.

105.At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.

106.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no 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 she will suffer significant harm as required by s36(2)(aa).

CONCLUSION

107.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) the Act.

108.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

109.There is no suggestion that the applicant satisfies s.36(2) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

110.The Tribunal affirms the decision not to grant the applicant a protection visa.

Jason Pennell
Senior Member

Annexure ‘A’

RECENT HISTORY[93]

[93] DFAT Report @ p.9

2.1 Ethiopia, formerly Abyssinia, is a multi-ethnic federal republic in East Africa. Ethiopia is Africa’s oldest independent country — with the exception of a five-year Italian occupation (1936-41), it was never colonised. In 1974, a Communist military junta known as the Derg (‘Committee’) overthrew the long-serving Emperor, Haile Selassie, and abolished Ethiopia’s monarchy, the House of Solomon, which dated to antiquity. The Derg pursued policies of nationalisation and collectivisation, and Ethiopia descended into civil war between junta and rebel forces. Between 1976 and 1978, the Derg killed thousands of its opponents (the campaign of ‘Red Terror’). Rebel forces from the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a multi-ethnic alliance led by the Tigrayan people, ousted the Derg in 1991, ending Ethiopia’s civil war. The Derg’s leader, Mengistu Haile Mariam, was granted asylum in Zimbabwe. The EPRDF and its successor, the Ethiopian Prosperity Party (EPP), have ruled Ethiopia since. In 1993, Eritrea broke away from Ethiopia and established its own state, rendering Ethiopia landlocked. A border dispute between the two countries triggered a two-year war (1998-2000), in which 100,000 people were killed (see Security Situation). Ethiopia is one of the most drought-prone countries in the world. Drought-induced famines in 1973-74 and 1984-85 resulted in more than 1 million deaths. Its capital city, Addis Ababa, is a major diplomatic hub, as seat of the African Union and the UN Economic Commission for Africa.

2.2 Ethiopia held its first multi-party elections in May 1995. The EPRDF won this and all other subsequent elections, bringing stability and economic growth but restricting political dissent and media and civic freedoms for most of its time in power. The EPRDF was disbanded in December 2019 (see Political System). Ethnic Tigrayans, a minority, wielded outsized influence during most of the EPRDF’s rule, fostering resentment among the considerably larger Amhara and, in particular, Oromo ethnic groups. Meles Zenawi, a Tigrayan who led the removal of the Derg, served as prime minister from 1995 until his death in 2012. Zenawi was succeeded by his deputy, Hailemariam Desalegn, an ethnic Wolayta — Ethiopia’s first peaceful transition of power in modern times.

2.3 Large-scale anti-government protests beginning in 2014, centred in Oromia and, later, Amhara states, prompted the declaration of a State of Emergency, under which over 20,000 people were arrested and 1,000 killed (see 2014-18 Protests and State of Emergency). Protesters demanded greater political rights, leading to the resignation, in February 2018, of Prime Minister Desalegn. His successor and current prime minister, Abiy Ahmed (appointed in April 2018), embarked on an ambitious reform agenda, and the human rights situation has improved significantly under his watch. Among other reforms, Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously-exiled opposition groups, expanded the space for civil society, and initiated reform of legislation used previously to arrest and prosecute government critics. In parallel, Abiy has pursued high-profile diplomatic initiatives across East Africa. He was awarded the Nobel Peace Prize in 2019 for his peacebuilding efforts with Eritrea, culminating in the signing of an agreement to formally end their war. Abiy is Ethiopia’s first prime minister from the Oromo ethnic group.

2.4.1After an initial period where violence subsided significantly, ethno-nationalism, inter-ethnic clashes and associated displacement again increased, though not nearly to the levels witnessed preceding Abiy’s election. Abiy’s reform agenda has met some resistance, and his government was the subject of a purported coup attempt in June 2019.

2.5 Abiy had committed to holding free and fair elections in 2020, although these have been postponed due to the COVID-19 outbreak in the country. Abiy declared a five-month State of Emergency on 8 April 2020 in response to the outbreak. The State of Emergency, while valid only until September 2020, limits some human rights, particularly those around association and movement. While these reflect the types of restrictions in place internationally, there is scope for abuse. However, the response has generally been accepted as necessary by opposition parties who see it as proportionate to the threat posed by COVID-19..……………….

POLITICAL SYSTEM[94]

[94] DFAT Report @ p.15

2.31 Ethiopia’s current constitution was adopted in December 1994 and came into force in August 1995. It established a federal system of regional states delineated according to settlement patterns, language and identity (i.e. ethnicity). This method of delineation essentially makes Ethiopia an ‘ethnic federation’, whereby the largest ethnic groups administer their own states and operate with considerable autonomy from the federal government.

2.32 Ethiopia had nine states at the time of publication: (1) Afar; (2) Amhara; (3) Benishangul-Gumuz; (4) Gambela; (5) Harari; (6) Oromia; (7) Somali; (8) SNNP; and (9) Tigray. A 10th state, for the Sidama people, is in the process of being established, following the successful passage of a referendum on regional statehood in November 2019 (see Security Situation). States have their own legislative assemblies (kilili); its members are popularly elected. Under the constitution, states have the authority to, inter alia, enact and implement state laws; formulate economic, social and development policies; administer land and other natural resources in accordance with federal laws; levy and collect taxes and administer a state budget; and establish and administer a state police force. For administrative purposes, states are divided into districts (woredas) and neighbourhoods (kebeles). A kebele is the smallest unit of local government in Ethiopia. Representatives of woredas and kebeles are popularly elected. The federal government administers Addis Ababa (in addition to being the federal capital, Addis Ababa is the capital of surrounding Oromia State), Dira Dawa and Harar.

2.33 Ethiopia has a bicameral federal parliament, consisting of the House of Peoples’ Representatives (lower chamber, 547 seats) and the House of the Federation (upper chamber, 153 seats). Members of the House of Peoples’ Representatives are elected by popular vote to five-year terms. State assemblies elect members of the House of the Federation, also to five-year terms. The constitution mandates that each recognised ‘Nation, Nationality, and People’ of Ethiopia be represented by one member in the House of the Federation, and one additional member for every million people of its population.

2.34 The President is the head of state, and is elected jointly by both chambers of parliament to a six-year term (for a maximum of two terms). The incumbent, H.E. Mrs Sahle Work-Zewde, was elected in October 2018. The role of president is largely ceremonial. Most power is vested in the prime minister, who serves as the head of government and commander-in-chief of the national armed forces. The prime minister is chosen by the party with most seats in parliament. It is a constitutional requirement to hold national and state elections every five years.

2.35 Political parties have existed in Ethiopia since the overthrow of the Derg in 1991, although the ability of parties not belonging to, or affiliated with, the EPRDF to operate freely was circumscribed. The EPRDF and affiliated parties controlled all tiers of government from 1991 to December 2019, when the EPRDF dissolved and reorganised as the Ethiopian Prosperity Party. The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities: (1) the Tigrayan People’s Liberation Front (TPLF), which founded the EPRDF and led the ouster of the Derg; (2) the Oromo Democratic Party (ODP), formerly the Oromo People’s Democratic Organisation, or OPDO; (3) the Amhara Democratic Party (ADP), formerly the Amhara National Democratic Movement, or ANDM; and (4) the Southern Ethiopian People’s Democratic Movement (SEPDM). The EPRDF had an estimated 8 million members.

2.36 The EPRDF was overwhelmingly voted into power in 1995, Ethiopia’s first democratic election. It was re-elected in 2000, 2005, 2010 and 2015, although international observers alleged voter irregularities in these elections. Opposition parties made significant gains at the 2005 election, winning 174 of 547 seats in the House of Peoples’ Representatives (the EPRDF took 327 seats) on a record voter turnout of 90 per cent. Opposition parties, led by the Coalition for Unity and Democracy (CUD, also known as Qinjit), disputed the result and launched large-scale protests in Addis Ababa. These turned violent — clashes with government forces left nearly 200 protesters dead. Around 4,000 people were arrested, including opposition leaders. In response, the EPRDF restricted the space for political opposition. In July 2007, 30 opposition leaders were handed life sentences for their participation in the 2005 protests, but were immediately pardoned. In 2009, parliament adopted the Anti-Terrorism Proclamation (the ATP), under which large numbers of political opponents, journalists and activists were arrested, effectively hobbling political opposition to the EPRDF (see also Political Opinion (Actual or imputed)). The EPRDF and affiliated parties won 546 of 547 seats in the 2010 national election, and all 547 seats in the 2015 election. The EPRDF and affiliated parties won 1,966 of 1,987 seats in the 2015 regional elections, thus retaining control of all states. National and regional elections were scheduled for 29 August 2020, but have been postponed due to the COVID-19 outbreak.

2.37 Ethiopia has witnessed significant changes in the political operating environment since April 2018. Restrictions on political opposition have eased significantly since April 2018, and political parties are able to operate more freely, particularly in Addis Ababa. To date, over 130 political parties have declared their intention to contest the forthcoming national election. Most are organised along ethnic lines.

2.38 In June 2018, federal parliament removed Ginbot 7 (Amharic for ‘May 15’, the date of the disputed 2005 election), the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The parties, which maintained armed wings and were committed to the overthrow of the EPRDF through militant means from their bases in Eritrea, were designated as terrorist organisations in June 2011. Ginbot 7, the OLF and the ONLF have since returned from exile and now participate in the political process. Other major opposition movements include the Ethiopian Federal Democratic Unity Forum (also known as Medrek) and Ethiopian Citizens for Social Justice (known as Ezema). Medrek is a coalition of four parties: the Ethiopian Socialist Democratic Party (ESDP), the Arena for Sovereignty and Democracy, the Sidama Liberation Movement (SLM) and the Oromo Federalist Congress (OFC). Ezema was formed in May 2019 through the merger of several opposition parties, including Ginbot 7, the Ethiopian Democratic Party (EDP), the Semayawi Party (known as the Blue Party) and Unity for Democracy and Justice (UDJ, also known as Andinet, the successor party of the CUD/Qinjit). Some political parties promote openly nationalist platforms. Ezema is one of the few political parties that is not ethnic-based.

2.39 The Ethiopian Prosperity Party (EPP), formed in December 2019, merged into a single national party three of the four parties that previously formed the EPRDF (the ODP, ADP and SEPDM). The EPP also includes the former Afar National Democratic Party (ANDP), the Benishangul-Gumuz People’s Democratic Unity Front (BGPDUF), the Ethiopian Somali People’s Democratic Party (ESPDP), the Gambela People’s Democratic Movement (GPDM) and the Harari National League (HNL). The ANDP, BGPDUF, ESPDP, GPDM and HNL previously governed Afar, Benishangul-Gumuz, Somali, Gambela and Harari states, respectively. They were affiliated to – but not formally part of – the EPRDF. Prime Minister Abiy justified the formation of the Ethiopian Prosperity Party on national unity grounds, claiming it would buttress efforts to move away from ethnic-based identity politics and toward ‘pan-Ethiopianism’. The TPLF, which traditionally dominated decision-making within the EPRDF but felt marginalised under Abiy, opposed the merger and refused to join the EPP. The TPLF is seeking new alliances ahead of the next elections. These elections were planned for August 2020 but have now been indefinitely postponed due to COVID-19.

2.40 Parliament adopted a new electoral law in August 2019. Among other things, the law bars serving public servants from contesting elections and increases the threshold for the formation of political parties. Under the new law, 10,000 signatures are required to form a national political party (up from 1,500), and 4,000 signatures for a regional party (up from 750). The law also establishes a framework for resolving electoral disputes countrywide. In March 2019, 107 political parties signed a code of conduct with the federal government to work towards free and fair elections in 2020. The Abiy Government has sought to strengthen the independence of the National Electoral Board of Ethiopia (NEBE). In November 2018, it appointed Birtukan Mideksa – a high-profile dissident who previously led the UDJ and was imprisoned for her role in the 2005 protests – as NEBE Chair. On 31 March 2020, NEBE announced it could not hold general elections as scheduled on 29 August 2020 due to the COVID-19 outbreak. Constitutionally, elections must be held by the end of the Ethiopian Calendar year on 6 September 2020. Having declared this no longer possible, the Government is consulting opposition parties, and assessing its constitutional options.

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

RACE/NATIONALITY[95]

[95] DFAT Report @ p.21

3.1Article 25 of the constitution stipulates all persons are equal before the law and are entitled to equal protection regardless of race, nationality, colour, sex, language, religion, political or other opinion, property, birth or other status. Article 46 of the constitution provides the basis for Ethiopia’s states to be delimited ‘on the basis of the settlement patterns, language, identity and consent of the people concerned’. In effect, this involves the creation of states that are broadly consistent with the geographic locations of major ethnic groups. Traditionally, ethnically-motivated societal violence has been rare, although ethnic-based clashes have increased since 2018 (see Security Situation), fuelled largely by competition for resources and enabled, in part, by the lifting of restrictions on freedom of expression and an associated rise in hate speech and misinformation (see Media). With the exception of the ethnic Anuak people of Gambela State, most ethnic groups in Ethiopia are indistinguishable by their physical appearance, partly as a result of inter-marriage.

3.2Ethiopia is a multi-ethnic society, and ethnic groups enjoy extensive rights. Under the Ethiopian Constitution every ‘nation, nationality and people’ (a reference to all ethnic groupings which constitute Ethiopia) has the right to speak their language and promote their culture. Every nation, nationality and people also has the constitutional right to self-determination, including the right to regional statehood within Ethiopia’s federal system — a right recently asserted by the Sidama (see Security Situation). Several conditions must be met for regional statehood, including: approval by a two-thirds majority of the members of the relevant state legislature; and a majority vote in a referendum organised by the federal government (the referendum must be organised within one-year of the request for regional statehood being received).

3.3All major ethnic groups are represented in the federal government and bureaucracy, and political parties represent the interests of Ethiopia’s various ethnic groups. DFAT assesses official discrimination – including systematic state-sanctioned discrimination, denial of public services and higher detention rates – based on race and/or ethnicity is rare. This assessment is consistent with the constitutional prohibitions on discrimination and reflects the need for governments to maintain their legitimacy through inclusiveness, given Ethiopia’s ethnic diversity. Different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a ‘non-factor’ in Addis Ababa — most people consider themselves from Addis Ababa as opposed to a particular ethnic group. Violence based on ethnicity is not common in Addis Ababa but is a growing concern in regional states. Interethnic relations have deteriorated since 2018, and DFAT assesses the situation for ethnic minorities at the regional state-level is increasingly challenging, and they face a growing risk of violence at the hands of the majority community.

3.4Societal discrimination based on ethnicity can occur but is predominantly in the form of positive discrimination in favour of a particular ethnic group rather than active discrimination against people of a different race or ethnicity. Official policies can limit opportunities for some groups; for example, the use of Oromiffa as the language of instruction in schools in Oromia State can limit opportunities for ethnic Oromos in the public sector if they do not also speak Amharic and English. Similarly, ethnic groups that constitute a minority within regional states are at a disadvantage from a linguistic perspective, insofar as their languages do not enjoy official status in those states

Amharas[96]

[96] DFAT Report @ p.23

3.9 The Amhara people are the second-largest ethnic group in Ethiopia, at 26.9 per cent of the population. While they reside predominantly in Amhara State, ethnic Amharas are present throughout Ethiopia, with significant populations in Oromia and SNNP states (2 million and 420,000, respectively). Nearly 1.3 million Amharas were residing in Addis Ababa at the time of the 2007 census, making them the singlelargest ethnic group in the capital. Most Amharas are Orthodox Christian. Their language, Amharic, is the official national language. The Amhara governed Ethiopia for the longest period before the EPRDF came to power in 1991, including during military rule and the era of the monarchy. Like the Oromo, the Amhara felt marginalised by the Tigray under the EPRDF, and protests in Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018. Similarly to the Oromo, Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression.

3.10The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military (until recently Amharic was the sole working language of the federal bureaucracy). Roughly a quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers at the time of publication. Political parties representing Amhara interests are active. DFAT assesses the arrest of Amharas during the 2014-18 anti-government protests was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. The Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are a minority.

POLITICAL OPINION (ACTUAL OR IMPUTED)[97]

[97] DFAT Report p.27

3.33The constitution enshrines extensive protections in relation to political opinion. Article 25 provides for equality under the law, without discrimination on the grounds of political or other opinion; Article 29 provides for freedom of expression; Article 30 provides for freedom of assembly, peaceful demonstration and petition; Article 31 provides for freedom of association; and Article 38 provides for the right to vote, be elected and be a member of a political organisation regardless of colour, race, nation, nationality, sex, language, religion, political or other opinion. Organisations formed in violation of appropriate laws and/or with the intent to subvert the constitutional order are prohibited. Organisers of large public gatherings must notify the authorities 48 hours in advance and obtain a permit.

3.34In practice, political freedoms were significantly curtailed before April 2018. Members of opposition groups, human rights activists, and independent commentators such as journalists and bloggers who opposed the government’s policies were regularly harassed and detained. The ATP was used extensively to restrict political freedoms and arrest and prosecute government critics, particularly individuals with suspected affiliations to proscribed groups Ginbot 7, the OLF and the ONLF. Against this background, many opposition leaders and dissidents left Ethiopia. Individuals who were not members of the EPRDF reportedly faced discrimination in public sector employment, including impediments to career progression. Antigovernment protests were often dispersed through force, and participants arrested.

3.35Freedom of political expression has expanded since 2018. More than 10,000 political prisoners have been released since 2018 (a process initiated by the Desalegn Government), including senior opposition leaders Andargachew Tsege of Ginbot 7 and Merera Gudina and Bekele Gerba of the OFC. In June 2018, parliament lifted its terrorist designations of Ginbot 7, the OLF and the ONLF. These groups subsequently renounced armed struggle and returned to Ethiopia, where they operate as registered political parties. In July 2018, federal parliament amnestied thousands of individuals charged with treason and other crimes against the state. This has enabled high-profile opposition figures, including Berhanu Nega of Ginbot 7, to return from exile and resume their political activities. According to the federal government, over 13,000 people have been released under the amnesty law. Political opposition parties now operate with greater freedom, although some report intimidation and obstacles to holding rallies due to a lack of protection in regional states. In January and February 2020, over 100 OLF supporters were reportedly arrested across Oromia State, while some members of the National Movement of Amhara (NaMA) – an opposition party formed in 2018 that espouses Amhara nationalism – were detained in connection to the alleged coup attempt in June 2019 (see Security Situation). DFAT is unable to verify if these arrests were politically motivated. A local source involved in politics told DFAT they were able to express their political views freely without fear of arrest and prosecution. Anti-government protests are common — in January 2020, largescale anti-government protests took place in Amhara State in relation to the abduction of 27 ethnic Amhara university students in Oromia State. Protesters accused Prime Minister Abiy of not doing enough to secure the students’ release.

3.36In June 2018, the government established an Advisory Council for Legal and Justice Affairs comprising independent legal professionals to review and recommend reforms to laws that had been used to restrict political, civic and press freedoms (namely, the ATP, the Charities and Societies Proclamation, and the Freedom of Information and Mass Media Proclamation). The Advisory Council has a three-year mandate. The Charities and Societies Proclamation was repealed and replaced by the Organization of Civil Society Proclamation in February 2019 (see Human Rights Organisations). The new law is in operation and has been well received by civil society organisations. A revision of the ATP was adopted on 2 January 2020. It is a significant improvement on the previous ATP but has still drawn criticism from civil society groups, including Amnesty International, who fear it could still be used against those critical of government. Replacement legislation for the Freedom of Information and Mass Media Proclamation was before federal parliament at the time of publication. While these laws remain in force, they have been used only sporadically since April 2018.

3.37Human rights organisations have particularly welcomed the government’s commitment to review and revise the ATP, which was widely considered to fall short of international human rights standards. The old ATP contained a broad definition of ‘terrorist acts’ and was used extensively to arrest and prosecute critics of government policy before April 2018. Under the ATP, detainees could be held without charge for 28-day periods up to a maximum period of four months. In practice, many were held for considerably longer. Bail was not available for persons charged with terrorism offences. Those charged under the ATP can face up to 20 years’ imprisonment.

3.38Under the new ATP, a person must incite terrorist acts to be prosecuted (rather than simply ‘encouraging terrorism’) and workers’ rights to strike have been strengthened (illegal strikes that affected public services used to be classed as terrorist acts). However, Amnesty International believes opportunities to abuse power still remain. For example, the proclamation criminalises ‘intimidation to commit a terrorist act’.

3.39According to the federal government, about 300 people were arrested in connection to the alleged coup attempt in June 2018 (see Security Situation). DFAT understands a significantly higher number of people were arrested, including activists, journalists, government officials and members of the NaMA. The majority of arrests occurred in Amhara State; over 40 were detained in Addis Ababa. Most were subsequently released, including 22 in October 2019. A total of 58 people (45 in Amhara State and 13 in Addis Ababa) were charged under the ATP. In February 2020, the federal government said it had dropped charges ‘for the national good’ against some individuals – including NaMA members – suspected of involvement in the alleged attempt, as part of a broader pardon of high-profile detainees.

3.40Local sources told DFAT that, traditionally, being a member of the EPRDF increased one’s chances of gaining employment in the public sector and earning subsequent promotions, including in the judiciary, police, and public schools and universities. DFAT heard anecdotally that, while the practice of ruling party members being advantaged in public sector employment and promotions persisted, it was not as pronounced under the current federal government.

3.41DFAT assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:   For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:   For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:   For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:   Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

[49] The four parties that combined to form the CUD are: Ethiopian Democratic League, All Ethiopian Unity Party (AEUP), United Ethiopian Democratic Party-Medhin Party and Rainbow Ethiopia: Movement for Democracy and Social Justice.