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

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

CRITERIA FOR A PROTECTION VISA

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1809968 (Refugee)

Details

AGLC: 1809968 (Refugee) [2021] AATA 4173
Case: [2021] AATA 4173
Decision Date: 23 August 2021

CaseChat Overview and Summary

The applicant sought a protection visa, claiming he would face persecution if returned to Ethiopia due to his ethnic background as an Amhara and his imputed political opinion derived from his father's alleged involvement with opposition groups, specifically the Coalition for Unity and Democracy (CUD), Ginbot 7, and AYO. The dispute centred on whether the applicant had established a well-founded fear of persecution or a real risk of significant harm upon return to Ethiopia. The case was heard by the Tribunal.

The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of race or political opinion, or a real risk of significant harm under the complementary protection provisions of the Migration Act 1958 (Cth). This involved assessing the credibility of the applicant's claims regarding his father's political activities, his own alleged involvement with opposition groups, and the general human rights situation in Ethiopia, particularly in light of recent political reforms and ongoing conflicts. The Tribunal also considered the applicant's claim of harm as a failed asylum seeker and the potential harm from separation from his family in Australia.

The Tribunal found that while it accepted, in the absence of contrary evidence, that the applicant's father was involved with the CUD and detained, and that the applicant himself was arrested and detained, there were significant credibility concerns regarding the applicant's evidence. Crucially, the Tribunal found it unlikely that the applicant would be imputed with his father's political opinions, especially given his release after signing a document agreeing not to engage in political activities against the government and his subsequent four years of unhindered life in Ethiopia. Furthermore, the Tribunal found no independent evidence of the applicant's own support for AYO or Ginbot 7, noting that any financial contributions were made in cash and directly to an individual, making it unlikely that authorities would be aware of them. The Tribunal also considered the significant improvements in the human rights situation in Ethiopia since April 2018, including the lifting of terrorist designations for opposition groups and increased tolerance for political dissent. Regarding the failed asylum seeker claim, the Tribunal found no evidence to support it, noting that voluntary returnees generally face a low risk of harm. Finally, while acknowledging the emotional distress of family separation, the Tribunal determined this did not constitute "significant harm" under the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa, finding that there was no real chance the applicant would be seriously harmed if returned to Ethiopia, nor a real risk of significant harm under the complementary protection provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. 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]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. 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] ibidThe 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/29003Once 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. 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] ibidFinally, 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.29In 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; 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, 20210810114644Therefore, 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. 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. 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] 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]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. 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. 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. 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.29As 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 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. 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.48The 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]. 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. 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 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. 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).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 protectionIn 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.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.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]. 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).CONCLUSION107.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).DECISION110.The Tribunal affirms the decision not to grant the applicant a protection visa.Jason PennellSenior MemberAnnexure ‘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.152.31 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 statesAmharas[96][96] DFAT Report @ p.233.9 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.273.33The 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 19585 (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 refugeeFor 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 persecutionFor 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.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.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.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.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.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 familyFor 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 familyFor 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 measuresFor 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.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.…Protection visas – criteria provided for by this Act…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.

Ratio Decidendi

Legal Principle Established

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