1812039 (Refugee)

1812039 (Refugee) [2021] AATA 5321 (24 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1812039
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:K. Chapman
DATE:24 December 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 24 December 2021 at 1:32pm
CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – political opinion –a member of the Semayawi (Blue) Party – fears harm from the current Ethiopian national Government – family affiliation with the FANO militia – Amhara ethnicity – risk of harm of ethnic violence – particular social group –– ethnic Amhara perceived to have association with Amhara militia – effective protection measures are not available to the applicant –– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 91, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 April 2018, to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The Tribunal has obtained the following background information from the visa application, evidence presented to the delegate by the applicant, the decision of the delegate (submitted by the applicant) and the applicant’s evidence submitted during the review (including his evidence at hearing).
The applicant, [name deleted], who claims to be a citizen of Ethiopia, applied for the visa on 16 December 2015. He was born and raised in the Amhara region of Ethiopia and is of Amhara ethnicity. His family is from a rural area of Amhara, proximate to the border with the Tigray region in the north of the country. The applicant is university educated and became [an Occupation 1] in Ethiopia following his studies. He maintains that he was involved in student protests and was detained by the Ethiopian authorities. Additionally, he claims that the authorities monitored him thereafter. The applicant advises he was a member of the Semayawi (Blue) Party (an opposition political party) and fears harm on the basis of his political opinion. The applicant also has three brothers who have been forced to fight for the FANO Amhara militia against the Tigrayan forces in the northern portion of Ethiopia. The applicant fears ethnically based violence on account of his Amhara ethnicity and also being forced to fight for the FANO militia. He took an opportunity to attend an [event] in Australia to escape from Ethiopia.
The applicant arrived in Australia on [date] December 2015 holding a [temporary] visa, to attend [a specified event]. He applied for protection on 16 December 2015. The delegate refused to grant the protection visa on 13 April 2018, due to credibility concerns. The applicant applied for review of the delegate’s visa refusal decision on 27 April 2018. He provided a copy of that decision to the Tribunal and subsequently further material including submissions, character references and contemporary country information.
The applicant appeared before the Tribunal in person on 26 November 2021. He confirmed to the Tribunal that he was comfortable proceeding with the hearing in person. The applicant did not require the use of an interpreting service at hearing. The applicant was represented in relation to the review. The representative attended the Tribunal hearing by telephone. The applicant requested time to provide further material post-hearing. This request was duly granted and his final material was received by the Tribunal on 10 December 2021.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Ethiopia. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is indeed an Ethiopian national. Ethiopia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3) of the Act.
Issues
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Ethiopia, there is a real risk he will suffer significant harm.
Documentary evidence before the Tribunal
The Tribunal has its own file, and the Department file, relating to the applicant before it. Information including, but not limited to, the following is contained in those files:
a.the applicant’s protection visa application forms lodged on 16 December 2015;
b.the applicant’s identity documents including, an Ethiopian passport, a birth certificate; identity card; [staff] identity cards and passport photograph;
c.the applicant’s statement of claims dated 15 December 2015;
d.Federal Democratic Republic of Ethiopia, Federal Police Commission request for applicant dated [in] August 2015;
e.three certified copies of the applicant’s political party membership, receipts for the Semayawi (Blue) Party and membership identity card;
f.documents verifying the applicant’s educational qualifications, professional memberships and [publications];
g.documents verifying the [positions] the applicant has held at [a workplace];
h.documents verifying the applicant’s [study history];
i.the applicant’s Statutory Declaration of 16 March 2018;
j.photographic evidence;
k.social media posts;
l.written submissions;
m.country information documents relevant to Ethiopia;
n.the Departmental delegate’s visa refusal decision dated 13 April 2018 (a copy of which was provided to the Tribunal by the applicant);
o.the application for review submitted on 27 April 2018;
p.Departmental administrative and Movement records;
q.pre-hearing submissions of 19 November 2021;
r.the applicant’s Statutory Declaration of 19 November 2021;
s.eight supporting statements from third parties as to the applicant’s character; and
t.post-hearing submissions of 10 December 2021, including contemporary country information.
Claims for protection
The applicant has made claims for protection which may be summarised as follows (noting that information additional to the initial specified claims was raised during the review):
a.he is of Amhara ethnicity, from the Amhara region of Ethiopia adjacent to the Tigray region. Various members of the applicant’s family, including three brothers, have been forced to fight with the FANO Amhara militia against the Tigray People’s Liberation Front (TPLF). It is contended he will be at risk of harm from other ethnic groups, in particular the Tigray and Oromo (elements of which are operating in alliance against the Amhara forces) given his Amhara ethnicity in the context of ethnically based conflict;
b.he will be forced to fight with the FANO Amhara militia group against the TPLF, or face harm if he refuses to fight;
c.he is at elevated risk of harm of ethnic violence from the Tigray and Oromo ethnic groups (elements of which are operating in alliance against the Amhara forces), given the association of his brothers with the FANO Amhara militia group; and
d.the applicant was involved in student protests during the 2005 election, then detained and tortured. He was thereafter monitored by security forces. The applicant joined the Semayawi (Blue) Party (an opposition political party). He was detained again when the 2010 elections were held. In 2015, following the elections, he was sought again by the Ethiopian authorities. He fears harm from the current Ethiopian national Government, dominated by the Ethiopian Prosperity Party (EPP) of Prime Minister Ahmed Ali Abiy (an Oromo) due to past political activism.
Evidence at the review hearing
The applicant’s evidence at hearing may be summarised as follows. He confirmed he understood his claims for protection and that they are truthful. The Tribunal canvassed his family background with him. The applicant grew up in the rural portion of Amhara region, in a family of farmers. He is the first person in his family to be University educated. The applicant and his family members are Orthodox Christians. The applicant initially studied [a subject] in Amhara region. His father is elderly and his mother passed away in 2006. The applicant has [number] brothers. Three of his brothers have been forced to fight for the FANO Amhara militia against the Tigray People’s Liberation Front (TPLF). He also has two nephews who have been similarly forced to fight. The applicant has [number] sisters and one of their husbands is also fighting for FANO. The FANO militia group is operating in partnership with the Ethiopian National Defence Force against the TPLF and their allies, in the northern part of Amhara region.
At the time of the review hearing, the applicant did not know the whereabouts of his relatives who are fighting, nor the condition of his other relatives whom he believes to be on their respective farms. He has not been able to establish contact with his family members in Ethiopia in recent times. This is because Ethiopia is in a state of ethnic conflict and during November 2021 the TPLF forces had occupied the northern area of Amhara region, where his family resides. Indeed, at the time of the review hearing, the TPLF forces were pushing south towards Addis Ababa along a main supply route. Furthermore, elements of the Oromo people had formed an alliance with the TPLF against the Ethiopian Government. The applicant referred to larges volumes of civilians being displaced because of the fighting in northern Ethiopia. He also informed the Tribunal that Prime Minister Abiy had personally gone to fight against the TPLF.
The applicant provided his evidence at hearing, concerning his family situation, in a direct and engaging fashion. He and his representative referred to submitted contemporary country information regarding the evolving ethnic conflict in Ethiopia and the precarious situation of the Amhara people in the Amhara region. The applicant explained to the Tribunal that if he returns to Ethiopia, he will also be forced to fight for the FANO Amhara militia, even though he is University educated. He fears harm in doing so and also in resisting the direction to fight. Furthermore, the applicant fears being targeted by the TPLF due to his family affiliation with the FANO militia. The applicant was consistent in his evidence regarding the circumstances of his family and it is accepted by the Tribunal.
The Tribunal canvassed with the applicant his claims for protection concerning political opinion. He informed the Tribunal that in 2005 he was a [student] in Bahir Dar (the main city of the Amhara region). During the 2005 elections, the applicant joined student protests during the voting period on campus. The applicant explained that he joined these protests as he and other students were concerned that the Ethiopian Government of the time, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), were stealing the election by interfering with the ballot boxes on campus. The applicant described in detail the local Police efforts to keep the students back from the voting area during the day time and the Ethiopian Federal Police collecting the ballot boxes on dusk. The applicant provided a detailed and consistent account of the actions and appearance of the various Police forces deployed to the campus.
According to the applicant, during the evening Ethiopian security forces came searching for individuals involved in the protest in the dormitories. His name was called by them and he was taken away to a vehicle along with others. When questioned by the Tribunal as to why he would be so targeted, the applicant explained that there were many students taking photographs during the protest and he suspects some Tigrayan students informed on the protestors to the Ethiopian authorities. The applicant told the Tribunal that he was conveyed with other students in a convoy of trucks to a rural area where they decamped and were held in small structures. The applicant explained that he was held in this rural camp for approximately three months, where he was subject to mistreatment including beatings and cold water immersion. In due course, the applicant was dumped in a rural area by the security forces and warned never to be involved in student protests again. He managed to hitch a ride back to Bahir Dar with a passing bus driver, a practice common in the rural parts of Ethiopia.
The Tribunal questioned the applicant at length regarding the manner in which he was detained and conveyed to the interrogation camp, in addition to its particulars. Furthermore, the Tribunal elicited a fulsome description of the applicant’s time in the camp, paying particular attention to his observations of its layout, routine and staffing (the Tribunal does not outline this evidence in detail in this decision record, in order to preserve its sanctity). Having the benefit of directly observing the applicant provide his evidence regarding this period of detention in 2005, at an in person hearing, the Tribunal is satisfied with his truthfulness regarding these events.
The applicant outlined that following his release from the interrogation camp in 2005 he arranged with the university to take a late exam and he successfully went on to complete his studies. According to the applicant, his experiences led him to become more interested in anti-Government politics. The applicant secured employment at [a workplace] in Bahir Dar and came into contact with like minded people during that time. He explained that the individuals who went on to found the Semayawi (Blue) Party had themselves been arrested in 2005. By 2007, the applicant contends that the Blue Party was informally operating in its infancy. He told the Tribunal that he joined the Blue Party in 2007 and provided details of the small group meetings that took place at that time.
The Tribunal raised with the applicant that open source country information, as relied upon by the delegate, suggests the Blue Party was not formed until 2012. The Tribunal invited the applicant to comment and he indicated the Blue Party was operating in secret, on a small scale, during its inception for fear of infiltration by the Ethiopian authorities. The Tribunal noted that the applicant had submitted a copy of a Membership Card for the Blue Party and questioned in him in detail as to why such a card would exist when the risk of infiltration was so pervasive. The applicant maintained the card merely stated a mission but did not indicate the true nature of the Blue Party, so as to avoid issues with the Ethiopian authorities. He also advised that he was not a leader of the Party and was only involved with clandestine small group discussions at an embryonic time of the Party. The applicant told the Tribunal that any Party documentation, such as the Card, was closely held and not distributed widely.
The applicant moved to [Tigray] region where he took [a] position. He did not participate in political activity during his time there and kept a low profile, as he knew he was in a region likely to have a positive view of the Ethiopian Government at that time (then the Tigrayans held strong influence in the EPRDF led Government). From there he went to [a] University to continue [study]. In 2010, prior to the election that year, the applicant described being detained by the security services for approximately two weeks, during which time he was beaten then released. According to the applicant, the security services knew of his prior student protesting and that is why they located him in 2010 to warn him not to repeat his activities.

By 2012, the applicant had completed his studies and returned to the Tigray region [for] employment. He maintained a low profile there given the region was supportive of the national Government of the day. In 2013, the applicant moved back to Bahir Dar in the Amhara region to take up another [position]. He then reconnected with the Blue Party and became more active in distributing supporter cards and anti-Government material in preparation for the election to be held in 2015. Following that election, the applicant advised he received a letter from the Ethiopian authorities requiring him to present himself for questioning. Upon receipt of this letter, the applicant explained that he fled to the house of his cousin in Addis Ababa and kept a low profile. He did not tell his colleagues of his impending departure, rather he packed up and fled in haste fearing imprisonment.
The Tribunal canvassed with the applicant why the authorities would send him a letter and not just detain him in Bahir Dar as they had previously done? The applicant maintained that because he was sought after the election result in 2015, rather than prior to or during the election, the authorities used different tactics. The Tribunal canvassed with the applicant his arrangements to depart Ethiopia. He explained that as an [Occupation 1] he had been invited to many [events] over the years, finding the costs prohibitive to attend. Around the time of receiving the letter in 2015, the applicant was invited to [an event] in Australia. He decided to make that his vehicle for departing the country. He explained that he was able to apply for his Australian visa through the processing [centre]. His acquaintances used their details to pay for his visa and travel. The applicant then departed through Addis Ababa international airport in December 2015, using his own Ethiopian passport.
The Tribunal raised DFAT country information with the applicant suggesting that it would be difficult to depart the airport in Addis Ababa using his own passport, if he was wanted by the Federal authorities, given the sophistication of the Ethiopian security services.[1] The applicant maintained that as he was not a high profile political leader, nor charged with a crime, he was not prevented from departing. He explained that he was terrified when going through the airport and only relaxed once he had left the country. Submissions have been made on his behalf suggesting that generally only persons charged with crimes are at risk of having their details on file at an Ethiopian airport, however even some of these individuals are still able to depart.
[1] ‘DFAT Country Information Report Ethiopia’, Department of Foreign Affairs and Trade, 12 August 2020, paragraphs 5.14 & 5.39.
The Tribunal canvassed with the applicant how it was possible for him to obtain and maintain [employment] for some years, if he was seen as an opponent of the national Government? He maintained that the [specified work] sector is merit based and the Government generally does not interfere with [appointments], to give the veneer of democratic legitimacy. The applicant concluded his evidence by maintaining that his claims are genuine. He advised that he is employed by an Australian [employer] and is studying a PhD in [Subject 1], maintaining that he could seek Skilled migration if he wished but maintained his claims for protection as they are genuine. The Tribunal notes that the applicant provided several references as to his good character and also his abilities as an [Occupation 1] in the [Subject 1] field. On balance, the Tribunal forms the view that the applicant is of good character and that he is generally a credible witness, particularly with respect to his family circumstances and initial involvement in political activity.
The applicant’s representative made submissions and agreed with the Tribunal that the applicant’s claims could be distilled into two broad categories. Those being, the emerging claims regarding his ethnicity and family links with the FANO Amhara militia in the context of ethnic violence, and his initial claims pertaining to political opinion.
Post-hearing submissions
The post-hearing submissions focussed on the emerging claims of the applicant regarding the contemporary ethnic violence occurring in Ethiopia, particularly in the Amhara region. It is contended that the applicant’s Amhara ethnicity and his family links with the FANO Amhara militia place him at heightened risk of harm in the context of ethnic violence. Contemporary country information was submitted and has been duly considered by the Tribunal.
Analysis
That a person claims to fear persecution for a particular reason does not of itself establish either the genuineness of the asserted fear, or that it is ‘well-founded’, or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70. Section 5AAA of the Act also provides that it an applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such claim.
The Tribunal accepts the importance of adopting a reasonable approach in making findings of credibility in matters relating to protection visa applications. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made salient comments on determining credibility, including those below. Numerous decisions have also endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but are unable to substantiate all of their claims. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal has also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, and the comments of the High Court on the correct approach to determining findings on credibility. Kirby J said at [39]:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.
The Tribunal has very carefully considered the applicant’s claims, individually and cumulatively, and the evidence before it. For the reasons that follow, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Ethiopia. The Tribunal notes that, in general, it finds the applicant to be a credible witness given the consistency and detail of his evidence at hearing. Furthermore, it is apparent from reliable contemporary country information that Ethiopia is presently in a state of internal conflict arising from ethnic tensions.
The Tribunal accepts that the applicant hails from the rural portion of the Amhara region and that he has spent significant time in Bahir Dar, the region’s main city. For the purposes of this review, the Tribunal considers Bahir Dar to be the applicant’s home location. As outlined previously, the Tribunal accepts that several of the applicant’s relatives have been forced to fight with the FANO Amhara militia group against the TPLF, in the northern portion of the Amhara region bordering the Tigray region. The Tribunal also accepts that the status of the applicant’s family members, who are fighting and farming, in the northern portion of the Amhara region is unknown due to the ethnic violence taking place there.
The Tribunal notes that the DFAT country information indicates violence based on ethnicity is ‘a growing concern in regional states’ and it also describes ethnic violence occurring between the Amhara and Tigray people in the northern portion of Ethiopia.[2] However, it is apparent to the Tribunal that the scale of ethnic violence taking place in Ethiopia has accelerated since the end of 2020, after publication of the latest DFAT country information. Reliable country information from the Australian Broadcasting Corporation (ABC)[3], the British Broadcasting Corporation (BBC)[4], International Crisis Group[5] and Al Jazeera[6] indicates the following situation has unfolded in Ethiopia since late 2020.
[2] ‘DFAT Country Information Report Ethiopia’, Department of Foreign Affairs and Trade, 12 August 2020, paragraphs 3.3 & 3.14.
[3] ‘A Year of Bloodshed, Famine and Civilian Torture. Why is Ethiopia on the Brink of All-Out Civil War?’, ABC news, 19 November 2021: A year of bloodshed, famine and civilian torture. Why is Ethiopia on the brink of all-out civil war? - ABC News
[4] ‘Ethiopia’s Tigray war: The short, medium and long story’, 29 June 2021, BBC, Ethiopia’s Tigray war: The short, medium and long story - BBC News
[5] ‘Ethiopia’s Civil War: Cutting a Deal to Stop the Bloodshed’, 26 October 2021, International Crisis Group, Ethiopia’s Civil War: Cutting a Deal to Stop the Bloodshed | Crisis Group
[6] ‘UN rights council orders probe into abuses in Ethiopia’s conflict’, Al Jazeera, 17 December 2021,
In November 2020, Prime Minister Abiy launched an offensive against the TPLF in the Tigray region, following attacks on Ethiopian National Defence Force personnel and an earlier unsanctioned regional election. This offensive saw the Ethiopian National Defence Force, in conjunction with Amhara militia groups such as FANO, occupy portions of the Tigray region. However, throughout 2021 the TPLF had a series of military victories and pushed south to occupy portions of the Amhara and Afar regions. The TPLF also allied with some ethnic Oromo forces, such as the Oromo Liberation Front (OLF). In November 2021, the TPLF had units within 300km of Addis Ababa. It is reported that atrocities have been committed by various ethnically based parties to the conflict in the regions of Tigray, Amhara and Afar.
Recent reporting from the BBC[7], Al Jazeera[8] and Bloomberg[9] indicates that the Ethiopian national forces of Prime Minister Abiy have recovered territory throughout December 2021. Indeed, Prime Minister Abiy himself travelled towards the front lines to lead his forces in their push to defend Addis Ababa from an impending attack by Tigrayan forces. At the time of this decision, the Tigrayan forces had retreated back to the Tigray region and were seeking a negotiated settlement. However, Prime Minister Abiy has rejected talks and threatened to crush the Tigrayans. Atrocities continue to be committed and the United Nations has launched an investigation.
[7] ‘Ethiopia Civil War: How PM Abiy led fight back against rebel advance’, 15 December, BBC, Ethiopia civil war: How PM Abiy led fight-back against rebel advance - BBC News
[8] ‘Tigrayan forces announce retreat to Ethiopia’s Tigray Region’, 20 December 2021, Al Jazeera,
[9] ‘Ethiopia’s Abiy Has Civil War Edge as Tigray Rebels Retreat’, 21 December 2021, Bloomberg,
It is apparent to the Tribunal that, at the present time, the internal ethnic conflict in Ethiopia is in a state of flux. Currently the Ethiopian national forces hold the ascendancy, however only a few weeks ago Addis Ababa was under threat from the Tigrayan forces. This is a far from settled situation, in the view of the Tribunal. Given Ethiopia has a long history of ethnically motivated violence, unfortunately it appears calm will not be restored for some time. Against this backdrop, the Tribunal accepts that the applicant’s family have an association with the FANO Amhara militia group and also that Tigrayan forces are in proximity to their farming communities. Furthermore, the Tribunal accepts that the applicant would be forced to fight for the FANO if he returns to the Amhara region of Ethiopia. These matters elevate the risk of the applicant being harmed on the basis of his ethnicity. As previously outlined, the Tribunal accepts the genuineness of the applicant’s evidence regarding his family situation in the Amhara region.
Real chance of persecution for reason of membership of a particular social group
The Tribunal has had regard to s.5L of the Act which provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. Following careful consideration, the Tribunal finds that the applicant is a member of the particular social group ‘ethnic Amhara perceived to have association with Amhara militia’.
In the view of the Tribunal, the applicant fears persecution on this basis, and his membership of this particular social group places him at increased risk of harm from Tigrayan and Oromo militia. The Tribunal notes in making this finding that it has duly considered s.5K of the Act and that no barrier is posed by that provision in determining the applicant to be a member of the particular social group outlined.
With regard to assessing whether the applicant faces a well founded fear of persecution as an ‘ethnic Amhara perceived to have association with Amhara militia’, the Tribunal has duly considered that the criterion in s.5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s.5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. For reasons previously expressed, the Tribunal accepts that the applicant satisfies the aforementioned subjective requirement.
The Tribunal notes that a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. Following careful consideration, the Tribunal finds that if the applicant returns to Ethiopia now or in the reasonably foreseeable future, there is a real chance (not being a remote or insubstantial one) that he would be physically injured or even killed by Tigrayan or Oromo militia due to him being an ‘ethnic Amhara perceived to have association with Amhara militia’. Additionally, the Tribunal finds that there is a real chance the applicant would be physically injured or even killed by Amhara militia, or Ethiopian Government forces, if he refused to fight with the FANO, given several of his family members have done so. In making these findings, the Tribunal notes that ethnic violence in Ethiopia remains ongoing at the time of this decision.
The Tribunal also accepts that the applicant was involved in student protests in 2005 against the then EPRDF led Government during the national election. The Tribunal also accepts the applicant was detained and mistreated following these protest activities. Additionally, the Tribunal accepts that the applicant was a low level supporter of the Blue Party. For completeness, the Tribunal notes that the EPRDF Government was dominated by the Tigrayans at that time and it is no longer in power. Indeed, the bulk of the remnants of the EPRDF are Tigrayans opposing the current Ethiopian Prosperity Party (EPP) of Prime Minister Abiy.
The Tribunal is more circumspect regarding the applicant’s claims that he was pursued around the country by Ethiopian authorities at the subsequent national elections held in 2010 and 2015. It is a source of puzzlement to the Tribunal how the applicant was able to pursue higher public academic study and employment in various locations, including the Tigray, SSNP and Amhara regions, if he was of such adverse interest to the security services. Furthermore, the Tribunal is somewhat perplexed at how the applicant was able to depart Ethiopia using his own passport, through the main international airport at Addis Ababa, if he was of sufficient interest to the Ethiopian authorities to be harassed in 2010 and 2015 in different regions of the country.
On balance, the Tribunal is satisfied that with the effluxion of time, and a change in the national Government since the applicant’s departure from Ethiopia, his past political activities alone would not bring him to the adverse attention of the current Ethiopian authorities. At best, they may elevate his risk of harm if he returned to Ethiopia and was targeted by Tigrayan forces on the basis of him being an ‘ethnic Amhara perceived to have association with Amhara militia’. In the view of the Tribunal, the applicant’s political claims are now properly subsumed within his membership of the aforementioned particular social group.
Does the real chance of persecution extend to all areas of Ethiopia?
Having carefully considered the above pertinent evidence submitted by the applicant, and the contemporary country information, the Tribunal finds that the real chance of the applicant being persecuted for reasons of his membership of the particular social group ‘ethnic Amhara perceived to have association with Amhara militia’ extends to the whole of Ethiopia in conformity with s.5J(1)(c) of the Act. Of note, the Tribunal is not satisfied that, at the present time, Addis Ababa or any other region is a secure location for the applicant, given the state of flux in the internal ethnic conflict underway in Ethiopia in combination with his particular circumstances.
Are there effective protection measures?
The Tribunal has duly considered whether ‘effective protection measures’ as defined in s.5LA of the Act are available to the applicant. Having regard to the contemporary country information concerning the effectiveness of State protection, the Tribunal is not satisfied that the applicant can access the effective protection of the Ethiopian State in the regions it controls, nor that there is a reasonably effective Police force to assist him, for the purposes of s.5LA(2)(a) and (c) of the Act, in respect of the persecution he faces as an ‘ethnic Amhara perceived to have association with Amhara militia. Indeed, it is clear to the Tribunal that presently the Ethiopian authorities cannot adequately protect Amhara civilians from ethnic violence perpetrated by the Tigrayan or Oromo forces. Furthermore, the Ethiopian authorities would not look kindly upon the applicant should he refuse to fight with the FANO militia, or the Ethiopian National Defence Force, against the TPLF and their allies. Accordingly, the Tribunal finds that effective protection measures are not available to the applicant for the purposes of s.5J(2) of the Act.
Other factors concerning the persecution

Having regard to all of the evidence, the Tribunal finds that the persecution which the applicant fears in respect of him being an ‘ethnic Amhara perceived to have association with Amhara militia’, involves ‘serious harm’ in accordance with s.5J(4)(b) of the Act given it involves a threat to his life or significant physical harassment or ill-treatment. Further, the applicant’s membership of the particular social group is the essential and significant reason for the persecution which he fears, thus satisfying the requirements in s.5J(4)(a) of the Act. Additionally, the Tribunal finds that the aforementioned persecution which the applicant fears involves systematic and discriminatory conduct, in accordance with s.5J(4)(c) of the Act. There are no relevant behavioural modification steps for the purposes of s.5J(3) of the Act and the Tribunal finds accordingly.
Well founded fear of persecution
Having considered all of the above circumstances, both individually and cumulatively, the Tribunal finds that there is a real chance in the reasonably foreseeable future the applicant would be persecuted for reason of his membership of a particular social group. His fear of persecution is well-founded as required by s.5J of the Act and therefore he is a refugee within the meaning of s.5H. Having reached the aforementioned conclusion, the Tribunal finds it is unnecessary to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons outlined above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and he satisfies the criterion set out in s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
K. Chapman
Member

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

[2021] AATA 5321

24 December 2021

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