1813714 (Refugee)
[2021] AATA 4588
•7 September 2021
1813714 (Refugee) [2021] AATA 4588 (7 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1813714
COUNTRY OF REFERENCE: Ethiopia
MEMBER:Jason Pennell
DATE:7 September 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 7 September 2021 at 11.27am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – opposition to government –supporter of Ginbot 7 – first applicant’s father’s political activities – member of the same family unit – race – Amhara – religion – Orthodox Christian – particular social group – failed asylum seeker – attendance at ESAT fundraising events in Australia – Ethiopian Satellite Television (ESAT) – increased tolerance for political dissent – removal of Ginbot 7 from terrorist list – Ginbot 7 disbanded – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
V v MIMA (1999) 92 FCR 355
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 27 April 2018 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
[The first applicant] and [the second applicant], who claim to be citizens of Ethiopia, applied for the visas on 13 February 2017. The delegate refused to grant the visas on the basis that the applicants are not persons to whom Australia owes protection obligations.
On 11 May 2018 and again on 14 January 2021, the applicants’ representative requested the Tribunal combine their review application and hearing with the review application of the first named applicant’s de facto partner, [Ms A] (AAT Case No 1813712), on the basis that they are members of the same family unit. The applicant and [Ms A] lodged separate protection applications with the Department of Home Affairs (‘the Department’) but subsequently made a request to the Department for their applications to be combined. However, due to an administrative error, separate primary decisions for each visa application were issued by the Department.
On 20 January 2021, the Tribunal informed the applicants that due to the visa applications not having been validly combined before the primary decision was made by a delegate, the Tribunal review applications could not be combined. The Tribunal did accept the request for both applications to be heard in a combined hearing.
The applicants appeared before the Tribunal on 12 April 2021 to give evidence and present arguments. The hearing was assisted by an interpreter in the Amharic and English languages. The Tribunal also took evidence from [Ms A], the first named applicant’s de facto partner. The applicants were represented in relation to their review application and at the Tribunal hearing by their registered migration agent.
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations as outlined in s.36(2)(a) or s.36(2)(aa) of the Act. 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 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–5LA, 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
BACKGROUND
The applicant’s country of reference and identity
The first named applicant (the applicant) claimed that he was born on [date] in Addis Ababa, Ethiopia.[1] He is an ethnic Amhara and an Orthodox Christian. He speaks, reads and writes Amharic and English.
[1] Applicant’s protection application dated 13 February 2017. Dept File No [deleted] Doc I.D. [deleted]
The second named applicant [the second applicant] claimed that he was born on [date] in Addis Ababa, Ethiopia. He is an ethnic Amhara and an Orthodox Christian. He speaks, reads and writes Amharic.[2]
[2] Second applicant’s protection application dated 13 February 2017. Dept File No [deleted] Doc I.D. [deleted]
The applicant and [the second applicant]provided the Department with a certified copy of their Ethiopian passports as evidence of their identity, nationality and citizenship. In the absence of any evidence to the contrary, the Tribunal accepts that the applicants are citizens of Ethiopia and as such their protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively. The Tribunal is satisfied on the basis of the evidence before it that the applicants do not have a right to enter and reside in any other country and, therefore, the Tribunal finds that they are not excluded from Australia’s protection obligations under s.36(3).
Migration history
The applicant first arrived in Australia as the holder of a [temporary] visa [in] June 2015, departing again [in] January 2016. [In] February 2016, he arrived again in Australia on the same visa.[3] On 13 February 2017, the applicant submitted a protection application.
[3] Movement records AAT File No 1813714 Doc ID 8637108
[The second applicant] arrived in Australia with the applicant [in] February 2016. On 13 February 2017, the applicant submitted a protection application and included [the second applicant] in his application as a family member.
Documentation considered
The Tribunal has considered the documentation provided by the applicants to the Department being:
a)Form 866, Application for a Protection (Class XA) visa, dated 13 February 2017.
b)Applicant’s statutory declaration dated 17 April 2018.[4]
c)Statutory declaration by [Ms A] dated 17 April 2018.[5]
d)Legal submissions by the applicants’ representative, dated 24 April 2018, attaching the above declarations, alongside pictures of the applicants at [Organisation 1 events], including an article in [a named newspaper], a Facebook video, and a Facebook post.[6]
[4] Dept File [deleted], Doc ID [deleted]
[5] ibid
[6] ibid
In addition, the Tribunal has considered the documentation provided by the applicants for the purposes of their review application being:
a)A copy of the Department’s notification of a refusal decision, dated 27 April 2018
b)Pre-hearing legal submissions[7] by the applicants’ representative, dated 9 February 2021, attaching:
i.Applicant’s statutory declaration dated 3 February 2021.
ii.Statutory declaration by [Ms A] dated 3 February 2021.
iii.Statutory declaration by [the second applicant] dated 3 February 2021.
iv.Birth Certificate of [Child B] dated [date].
v.[a health provider] discharge summary, dated [date].
vi.[a hospital] ‘baby book’ extract titled ‘My birth details’.
vii.Copies of membership and registration receipts (together with translated copies) to Unity and Democracy Movement.
[7] AAT File 1813712, Doc ID: 8095220
The Tribunal has also considered the post hearing submissions dated 19 May 2021 provided by the applicants’ and [Ms A]’s representative.[8]
[8] AAT File 1813712, Doc ID: 8439537
The applicant’s claims for protection
The applicant’s claims for protection are detailed in his protection application, dated 13 February 2017, the statutory declarations dated 17 April 2018,[9] by the applicant and [Ms A] and their legal submissions dated 24 April 2018[10] and 9 February 2021[11] (the submissions) and can be summarised as follows:[12]
[9] ibid
[10] Letter from [Legal Service 1] dated 24 April 2018 @ p.3; Dept File [deleted], Doc ID [deleted]; Letter from [Legal Service 1] dated 9 February 2021 @ p.6, AAT File 1813712, Doc ID: 8095220
[11] ibid
[12] ibid
A.The applicant fears that, if he is returned to Ethiopia, he will suffer serious harm in the form of arbitrary detention, interrogation, physical assault, torture and/or death from the Ethiopian authorities for reasons of:
(a) his actual and/or imputed political opinion in opposition to the Ethiopian government and in support of Ginbot 7, due to:
i.his actual political opinion in support of Ginbot 7; and/or
ii.his involvement as a supporter of Ginbot 7 in Ethiopia; and/or
iii.his attendance at ESAT fundraising events in Australia; and/or
iv.his father’s political activities; and/or
v.his asylum claims in Australia; and /or
(b) his membership of a particular social group of his family, due to his father’s political activities.
(c) his ethnicity as an Amhara.[13]
B.The applicant claims that his fears of persecution are genuine and well founded. They are informed by his experience of harm, including arbitrary detention, interrogation and torture by the Ethiopian authorities and the arrest of the secretary of his cell in December 2016.
C.In addition, [the second applicant] claims protection by reason of his actual or imputed political opinion as a dependent child of the applicant and [Ms A].[14]
[13] Representative’s Submissions dated 9 February 2021, AAT File 1813714 Doc ID 8096130
[14] ibid
In addition, during the hearing the applicant submitted that he has a cumulative claim for protection, including due to his father’s political involvement, his past Ginbot 7 membership, his attendance at ESAT fundraising events, his Amhara ethnicity and his Orthodox Christian faith.[15] In addition it was claimed that as a former member of Ginbot 7 who has not joined the Ethiopian Citizens for Social Justice Party (EZEMA), which the applicant claims is strongly aligned to the government, he would be perceived as a political dissident upon his return to Ethiopia.[16]
[15] Representative’s Submissions dated 19 May 2021, AAT File 1813714 Doc ID 8439553
[16] ibid
As a result, the applicant and [the second applicant] claim that there is a real chance they will be seriously harmed if they are returned to Ethiopia and as such, they meet the definition of refugee pursuant to s.5H–5J of the Act. In addition the applicants claim that there is a real risk they will be significantly harmed and as a result are owed complementary protection pursuant to s.36(2)(aa) of the Act.[17]
[17] AAT File 1813712, Doc ID: 8095220
The applicant’s claims for protection were summarised in the Department’s decision[18] as follows:
[18] Department’s Protection Visa Decision Record dated 27 April 2018 @ p.2; Dept File [deleted], Doc ID [deleted]
(a)He was born in Addis Ababa. His parents are retired [Occupation 1].
(b)When he was young, he attended training [in Occupation 2] near his house. The training was funded by non-government organisations. After completing a diploma in [Occupation 3], he joined [Organisation 1, an Occupation 2 employer] in 2011. He [worked] in count rues including [Country 1, Country 2, a range of other countries], and Australia.
(c)In 2013, the authorities detained him for [number] months. The authorities suspected his father was a supporter of Ginbot& because of a letter his father wrote complaining about the shortages of [facilities] for [Occupation 1]. The authorities came and took his father from his workplace. His father was released in April 2015becuse his father was suffering from a medical condition and the authorities thought he was going to die. Since then, his father regained his health but has not gone back to his [job].
(d)While in detention, he was interrogated about his father activities. He did not provide the authorities with any ‘right answers’ because he did not know anything about his father’s political involvement. Asa the authorities were not satisfied with his answers, he was beaten, tortured, and denied medical treatment. He met a person named [Mr C] in prison. They spent time together. [Mr C] told him about the activities of Ginbot 7.
(e)After he was released, he had to report to the authorities regularly for six months. After the end of six months everything was back to normal. He kept in contact with [Mr C] and decided to join Ginbot 7in 20014as a supporter. There are two types of membership - a person can join Ginbot 7 as an active member or as a supporter.
(f)As a supporter he contributed 100 Ethiopian Birr a month. Ginbot 7 operates as many small groups of five people. He does not know any other people in the network. [Mr C] was the co-ordinator of his group. Each different group will set their own minimum monthly payment that each member id obliged to contribute. He paid the money directly to [Mr C] and does not have any record of the payment.
(g)His de facto partner is also a supporter of Ginbot 7. She joined Ginbot 7 before him. Most young people in Ethiopia who are efficient in technology are supporter so Ginbot 7.
(h)Since coming to Australia, he has had a very busy schedule and regularly travelled interstate to [work]. He continued to support Ginbot 7 activities in Australia by listening to ESAT radio broadcasts and watching ESAT satellite TV. He also tried to participate in ESAT activities such as selling tickets, flags and t-shirts for fundraising.
(i)He has never had any problem entering or departing Ethiopia. His problem started at the end of 2016 when he tried to contact [Mr C], but [Mr C]’s phone was not working. he called another member of his group who told him that [Mr C] had been detained and the remaining members of his group were in hiding. After that, he tried to call them again but could not get in contact with anyone. He called his mother who told him that the authorities came to their house looking for him. They told his family to inform them as soon as he returns to Ethiopia. This was the first time the authorities came to look for him since his detention in 2013. After this incident, he stopped contacting his family. As far as he was aware from what he had heard from his friends in [Organisation 1], his family members are safe and doing fine in Ethiopia.
(j)His family is not aware that he is a supporter of Ginbot 7. He thinks that his father may still be actively involved in the group, but his father is reluctant to discuss politics with him. His parents do not want him to be politically involved.
(k)He has never had any concern about his safety in Ethiopia ad never had any fear about living in his country until the incident at the end of 2016 when [Mr C] was detained. Of her returns to Ethiopia, he could be detained or killed by the authorities because he is a supporter of an organisation that has been labelled as a terrorist group. He would be picked up by the authorities on arrival at the airport.
The applicant’s evidence
As referred to above, the hearing of the applicant’s and [Ms A] [19] applications for a review of their protection visa applications was heard by the Tribunal together.[20] As a result, the applicant’s evidence is the same as the evidence referred to in the Tribunal decision relating to [Ms A].[21]
[19] AAT Case No 1813712
[20] AAT File 1813712, Doc ID 8095220.
[21] AAT Case No 1813712
The applicant gave oral evidence to the Tribunal together with statutory declarations dated 17 April 2018[22] and 3 February 2021.[23] His evidence was that he was born on [date] in Addis Ababa, Ethiopia. He is an ethnic Amhara and of the Orthodox Christian faith.
[22] Dept File [deleted], Doc ID [deleted]
[23] AAT File 1813712, Doc ID: 8095220
The applicant’s parents were [Occupation 1]. His father was a [Occupation 1] at [Employer 1] in Addis Ababa and was [an office bearer] of the [Occupation 1]’ union. His mother was a [Occupation 1] at [Employer 2] in Addis Ababa. The applicant has [sisters and brothers] all of whom live in Ethiopia.
The applicant attended elementary and junior high school at [School 1]. He then attended [School 2] in Addis Ababa after which he obtained a diploma in [Occupation 3] from [College 1], Addis Ababa. While the applicant was at school, he started training with [Organisation 1], a non-profit organisation supported by various non-government organisations (‘NGO’). In 2011 he was accepted as [an Occupation 2] in [Organisation 1]. His first international [travel] with [Organisation 1] was to [Country 1]. The applicant’s evidence was that since that time he has travelled to numerous countries to [work with Organisation 1].
The applicant claims that if he is returned to Ethiopia, he will be seriously harmed by the authorities principally because of his political opinion and his involvement with Ginbot 7. His evidence was that in or about July 2013 his father, while at work, was arrested and detained. The applicant was not aware of his father’s political opinions at the time and was shocked of the news of him being detained by the authorities. The applicant’s evidence was that three days after his father’s arrest three people in plain clothes (who he believes to have been security or intelligence officers) came to his home. They searched the house and beat the applicant. The applicant was forced into a Nissan Patrol four-wheel drive motor vehicle and taken to [Police Station 1]. The applicant was locked in a cell with approximately 20 other people and interrogated about his father’s involvement in the Ginbot 7 organisation. His evidence was that he was not able to answer the officer’s questions and was beaten as a result. His beatings included his feet being beaten with a belt. The applicant claimed that he was held in detention for three (3) months, being released in October 2013. When he was released, he was required to sign a document which stated that he would not be involved in any anti-government activities. As a result, of his experience in detention it took the applicant some time before he was able to return to training with [Organisation 1].
The applicant’s evidence was that after being released from detention he was informed by his mother that his father was being held at the [prison] as a result of having written a letter to the [government] addressing a [specific] problem for new [Occupation 1]. His family were never permitted to visit him. His father was held in the prison for two (2) years and was never charged with any offence. As a result of his detention he lost his job and has not been able to work.
The applicant claims that after he was released from detention, he maintained contact with a person he met in prison, known as [Mr C]. He claims that they would often speak about political issues. As a result, [Mr C] informed the applicant about Ginbot 7 and encouraged him to join the organisation. In or about 2014, the applicant became a member of Ginbot 7 and committed to contributing 100 Birr per month. [Mr C] introduced the applicant to the members of his Ginbot 7 group being [Mr D], [Mr E] and [Mr F]. They would meet on a regular basis to discuss ‘Ginbot 7 and the way forward.’ The applicant’s evidence was that because he travelled overseas for his work, he did not attend meetings regularly, but made cash contributions to [Mr C] in support of Ginbot 7. His evidence was this was all done secretly because it was too dangerous for a person to disclose that they were a supporter.
The applicant arrived in Australia with [Organisation 1] in 2015. In 2016 he travelled to [Country 2] [as an Occupation 2]. The applicant returned to Ethiopia on his way to [Country 2] to collect a visa from the [Country 2] Embassy. In addition, he returned to Ethiopia from [in February 2016] on his return trip to Australia.
In or about December 2016, the applicant tried to contact [Mr C] but could not reach him. He became concerned and contacted his mother who informed him that the authorities had been to the house looking for him. As a result, he contacted [Mr E] who informed him that [Mr C] had been arrested and the others in his group were in hiding. He has no knowledge of what happened to [Mr C] and the others. Subsequently he tried to contact [Mr E] but was not able to reach him.
In Australia the applicant claims to have a friend who [works for] a television station known as ESAT that broadcasts information for opposition parties and information about events in Ethiopia. His evidence was that he has attended fundraising events in Australia to support the organisation. In addition, he claims that he has followed Ginbot 7 Facebook pages and posted videos linked to Ginbot 7 on his own [social media] page. The applicant claims that if he returns to Ethiopia, he will be detained on suspicion of being a supporter of Ginbot 7.
The applicant claims that given his support of Ginbot 7, his profile as a [Occupation 2] and the fact that he has previously been detained on the basis of his father’s suspected political activities he will be seriously harmed as a result of his imputed and actual political opinion.
The applicant claims that he is [the second applicant]’s guardian and that he had adopted him as his son. He claims that [the second applicant] lives with the applicant and [Ms A] as a member of their family unit. His evidence was that he met [the second applicant] in or about 2011 at a time when his family were not able to support him. The applicant took [the second applicant] in and brought him to Australia. His evidence is that he considers him as a son. [The second applicant] [is employed by Organisation 1] with the applicant.[24]
[24] First applicant’s statutory declaration, dated 3 February 2021 @[10]-[14]
The evidence of [Ms A]
In addition to her oral evidence to the Tribunal, [Ms A] also provided evidence in her statutory declarations dated 17 April 2018[25] and 3 February 2021.[26] Her evidence was that she was born on [date] in Addis Ababa, Ethiopia. She is an ethnic Amhara and her religion is Orthodox Christian. She speaks, reads and writes Amharic and English.
[25] Dept File [deleted], Doc ID [deleted]
[26] AAT File 1813712, Doc ID: 8095220
[Ms A] claimed that her father worked as a [occupation] but died when she was a child. Her mother owns and operates a small shop. She has [brothers] and [sisters] all of whom continue to live in Ethiopia.
Her evidence was that she completed her elementary and junior education at [School 1]. She then attended [School 2] and completed year [number] in [year]. While she was at school, she also trained with [Organisation 1]. In 2010, she commenced work with [Organisation 1] and initially travelled to [Country 3].
Prior to the general elections in 2010 [Organisation 1] was asked to [do propaganda work] for the ruling party in the local area and districts. [Ms A] was not able to [work] because of [an infection]. Approximately one month after the election, [Ms A] travelled to [Country 3] with [Organisation 1] for work, returning in October 2010.
[Ms A]’s evidence was that after she had returned from [Country 3], one evening, two armed men came to her house. Upon entering the house, they pushed her brother aside and grabbed her and dragged her into a waiting car. Her evidence was that she was taken to [Police Station 1] where she was placed in a small cell with other women. The day after being detained, [Ms A] was interrogated about why she had not [worked with Organisation 1] at the time of the election. The officers did not accept that she had been ill because she had later travelled to [Country 3] with [Organisation 1]. [Ms A] was held in prison for approximately two and a half months during which time she was interrogated as to why she did not [work] during the election campaign. Upon being released [Ms A] was required to sign a document by which she agreed not to support any opposition parties, report to the police once a week and to provide names of any suspected supporters of opposition groups to the police.[27] [Ms A] claims she signed the document so that she would be released from prison and be able to return to her family.
[27] [Ms A]’s statutory declaration of 17 April 2018 @ [13]-[14]
After her release, [Ms A] continued to see friends she had made in prison (Ms [G] and Ms [H]). [Ms A] claimed that after having witnessed the injustice to others and due to her own mistreatment and detention in or about March 2012 she also became a member of Ginbot 7. Her evidence was that Ms [G] introduced her to [two other people] and together they formed a group of Ginbot 7 movement members to raise money for the organisation. [Ms A] claims that she was registered as a Ginbot 7 supporter and filled the secretarial role of the group. Her evidence was that she donated 50 Birr per month to the group.
[Ms A] claimed that she and the applicant commenced a relationship in or about 2012 but she kept her involvement with Ginbot 7 to herself. She confirmed that the applicant was detained by the authorities in 2013 for three (3) months. She stated that detention had made the applicant more politically aware. In 2014 both she and the applicant disclosed to each other that they each supported Ginbot 7.
Since arriving in Australia, [Ms A] has maintained contact with her mother by telephone on a [regular] basis. In January 2017 her mother informed her that her brother had been taken by the police and interrogated about when she would be returning to Ethiopia. The applicant’s brother was released the same day on the basis that he reports to the police station.
As a result of the telephone conversation with her mother [Ms A] attempted to call her friend Ms [G] but could not contact her. She then called Ms [H] who advised her that Ms [G] had been arrested and was in prison and that the other cell members were in hiding. They were concerned that the document Ms [G] had as secretary of their cell (including records of financial contributions) would be discovered by the authorities. Ms [H] informed [Ms A] that she was going to change her phone number to protect herself. She claimed that because of a similar incident involving the applicant’s Ginbot 7 group she and the applicant feared the government was cracking down on opposition groups and as a result decided to apply for a protection visa.
In or about June 2018 the applicant and [Ms A] were accepted in Australia as members of Ginbot 7. The applicant and [Ms A] provided copies of the membership receipts as evidence of their membership.
[Ms A] confirmed the applicant’s evidence that prior to June 2018, he attended a few ESAT meetings, but due to work commitments was not able to be involved on a regular basis. She stated that as members of Ginbot 7 they had participated in some meetings and sold books about the organisation at the meetings. Her evidence was that some Ginbot 7 members have ‘split’ off and formed a group known as ‘Ethiopian Citizens for Social Justice Party.’
[Ms A] claimed that she had experienced harm in Ethiopia, having been detained in 2010 in connection with her political membership, and was beaten, harassed and humiliated while in detention. She claimed that she had not sought help from the authorities as they sanctioned the detention and torture. She indicated she did not attempt to relocate within Ethiopia, and nor would she be able to if she returned to escape harm, as the security forces are everywhere. She claims that she and the applicant will be harmed if they are returned to Ethiopia.
[The second applicant]’s evidence
[The second applicant] claimed[28] his ethnicity as Amhara and religion as Orthodox Christian, and noted he can speak, read and write Amharic. At the time of making the application he was under 18 years old. His biological mother, father and sister all remain living in Ethiopia. He claimed that the applicant was his guardian. He stated he completed year [number] at [School 2] in Addis Ababa in [year]. He worked [for Organisation 1] with the applicant and has travelled to several countries, including [Country 2] for work purposes, having been employed by several [employers] as an [Occupation 2] from March 2015 until January 2017. He is not married and not in a de facto relationship.
[28] Second Applicant’s protection application dated 13 February 2017. Dept File No [deleted] Doc I.D. [deleted]
He did not make any specific claims for protection on his application lodged with the Department on 13 February 2017 and relied on the applicant’s claims for protection as a member of the same family unit.
COUNTRY INFORMATION
The Tribunal, in accordance with the Ministerial Direction No.84 made under s.499 of the Act, also had regard to the country information assessments prepared by DFAT. In particular, the Tribunal has referred to the DFAT report on Ethiopia dated 12 August 2020 (‘the DFAT Report’).
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all his or her claims. All this is considered in these findings.
The mere fact that a person claims fear of persecution for a reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide enough evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[29] Nor is the Tribunal required to accept uncritically all the allegations made by an applicant.[30]
[29] s.5AAA Migration Act 1958.
[30] 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.
A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[31] Care must be taken not to exclude from consideration of the totality of evidence a portion of it which could reasonably have been accepted.
[31] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 per Foster J @ p482
If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[32] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.
[32] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
The accepted facts
Having considered the applicant’s evidence the Tribunal accepts and finds that the applicant:
(a)was born in Addis Ababa, Ethiopia on [date].
(b)is an Orthodox Christian and ethnic Amhara.
(c)speaks, reads and writes Amharic and English.
(d)father was [an Occupation 1] at [Employer 1] in Addis Ababa and was [an office bearer] of the district [Occupation 1] union.
(e)mother was [an Occupation 1] at [Employer 2] in Addis Ababa.
(f)has [sisters and brothers] all of whom live in Ethiopia.
(g)attended elementary and junior high school at [School 1] and [School 2] in Addis Ababa.
(h)obtained a diploma in [Occupation 3] from [College 1], Addis Ababa.
(i)was accepted as [an Occupation 2] in [Organisation 1] in 2011.
Having considered the applicant’s evidence the Tribunal accepts and finds that [the second applicant]:
(a)is an Orthodox Christian and ethnic Amhara.
(b)can speak, read and write Amharic.
(c)has a biological mother, father and sister in Ethiopia.
(d)completed year [number] at [School 2] in Addis Ababa in [year].
(e)[worked] from May 2015 to January 2017 with the applicant and has travelled to several countries, including [Country 2] for work purposes, having been employed by a number of [employers] as an [Occupation 2].
(f)is not married and not in a de facto relationship.
The applicant’s relevant grounds
The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act as an ethnic Amhara and his imputed or actual political opinion. It is generally understood that the Tribunal is to apply an applicant’s claim as to their ethnicity or race in the ‘widest sense.’[33] In this case, the applicant claims that he is an ethnic Amhara, which the Tribunal has accepted. As such, the Tribunal accepts that the applicant’s claim falls within the scope of s.5J(1)(a) of the Act by reason of his race as an ethnic Amhara.
[33] Calado v MIMA (1998) 81 FCR 450 at 455.
In addition, the applicant has claimed that he has been persecuted by reason of his actual and imputed political opinion. That is, as a supporter of Ginbot 7 both in Australia and Ethiopia, his support of ESAT and as a result of his father’s political activities.[34]
[34] Representative’s Submissions dated 9 February 2021, AAT File 1813714 Doc ID 8096130
The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status[35] provides that it is necessary for an applicant to show that they have a fear of persecution for holding a particular political opinion as ‘[H]olding political opinions different from those of the Government is not in itself a ground for claiming refugee status.’
[35] UNHCR Handbook on Procedures and Criteria for Determining Refugee Status paragraphs 80-86; Chan v MIEA (1989) 169 CLR 379 at 392
The Full Federal Court in V v MIMA[36] observed in relation to a person’s political opinion that:
(a)it is enough that a person holds (or is believed to hold) views opposed to the government and is persecuted for that reason;[37]
(b)it is not necessary that a person be a member of a political party or other public organisation or that the person’s opposition to the instruments of government be a matter of public knowledge;[38]
(c)‘political opinion’ is not limited to party politics in the sense that expression is understood in a parliamentary democracy;[39]
(d)the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts reflective of an unstated political agenda, will be the holding of a political opinion;[40]
(e)‘political opinion’ may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society.[41]
[36] V v MIMA (1999) 92 FCR 355 @ 363. It’s noted that the Court’s observations were made in the context of dealing with the Convention.
[37] Op Cit @ 363
[38] ibid
[39] V v MIMA (1999) 92 FCR 355 @367
[40] ibid
[41] V v MIMA (1999) 92 FCR 355.
Therefore, an applicant’s fear of persecution because of their political opinion is a question of fact.[42] Nevertheless, it must constitute at least the essential and significant reason for the persecution claimed to fall within s.5J(1)(a) of the Act.[43]
[42] Maningat v MIMA (Federal Court of Australia, Tamberlin J, 30 April 1998) @ 4.
[43] s.5J(4)(a) of the Act
In this case the applicant submits[44] that he has a well-founded fear of persecution by reason of his actual political opinion because of having supported Ginbot 7. In addition, he claims that he has been imputed with a political opinion because of his father’s political activities and his support of ESAT. Based on the applicant’s evidence, the Tribunal accepts that his claim falls within the scope of s.5J(1)(a) of the Act by reason of his actual and/or imputed political opinion.
[44] Representative’s submissions dated 15 February 2021
Finally, the applicant claims as a failed asylum seeker he is a member of a particular social group (PSG). Based on the applicant’s evidence the Tribunal accepts that he is a member of a PSG within the scope of s.5J(1)(a) of the Act as claimed.
The applicant’s well-founded fear
Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country. In Chan v MIEA[45] the Court held that a ‘well-founded fear,’ for the purposes of the Convention, involved both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[46]
[45] (1989) 169 CLR 379 at 396.
[46] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
However, to hold a ‘well-founded fear of persecution’ on an objective basis the applicant’s claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J[47] stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.
[47] Chan v MIEA (1989) 169 CLR 379 per Dawson J at 397
In MIEA v Guo, the Court stated that: [48]
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[48] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
In this case, the applicant claims that, if he is returned to Ethiopia, there is a real chance he will suffer serious harm by the authorities by reason of his ethnicity, political opinion or as a member of a PSG. For the reasons detailed below, the Tribunal does not accept that the applicant has a well-founded fear of persecution on an objective basis if he is returned to Ethiopia.
Members of the same family unit
As discussed above, the applicant’s de facto partner, [Ms A], has also applied for protection, and a request was made to combine the review application of the applicant’s partner’s visa refusal with the current review. At the time of making their applications for protection, both the applicant and [Ms A] claimed they were in a de facto relationship. In separate statutory declarations made on 3 February 2021, the applicant and [Ms A] both claimed to be the parents of [Child B], born on [date]. A copy of the birth certificate dated [date][49] was provided to the Tribunal recording both the applicant and [Ms A] as the parents of the child. Accordingly, based on the evidence provided by the applicant and [Ms A] the Tribunal accepts that they are in a de facto relationship and that they are the parents of [Child B]. The Tribunal accepts that the applicant and [Ms A] are members of the same family unit.
[49] Birth certificate of [Child B] dated [date].
In addition, the applicant claims to be the guardian of [the second applicant]. In a statutory declaration of 17 April 2018, the applicant stated he became the child’s carer and legal guardian in or around 2013, as the child’s parents were no longer able to provide him with care as his mother was mentally unwell. The affidavit of [the second applicant]’s biological father, [Mr I] dated 13 February 2017[50] confirms that [the second applicant] is travelling with [Organisation 1] and that the applicant is his guardian. As referred to above both the applicant and [Ms A] state that [the second applicant] lives with them as a member of their family unit. The Tribunal accepts that the applicant is [the second applicant]’s guardian and that he lives with the applicant and [Ms A] as a member of the same family unit.
[50] Affidavit of [Mr I] dated 11 March 2014, [deleted] Doc ID [deleted]
The applicant’s claims as a refugee
As an ethnic Amhara
The applicant claims that as an ethnic Amhara there is a real chance that he will be seriously harmed by both state and non-state actors. As referred to in the Tribunal decision concerning [Ms A],[51] the country information in relation to Ethiopia[52] states that the Amhara people are the second-largest ethnic group in Ethiopia (26.9 per cent of the population). They reside throughout Ethiopia but are most predominant in Amhara State. They are also the largest ethnic group in Addis Ababa with approximately 1.3 million living in the capital.[53] Generally, Amharas are Orthodox Christian and their language, Amharic, is the official national language.
[51] AAT Proceeding No 1813712 [Ms A]
[52] DFAT Report @ p.24
[53] Ibid, per 2007 census
The Tigray People’s Liberation Front (TPLF) ruled Ethiopia for 27 years at the head of a four-party coalition designated the Ethiopian People’s Revolutionary Democratic Front (EPRDF).[54] Prior to the EPRDF coming to power in 1991, the Amhara governed Ethiopia. The Tigrayans held great influence over the EPRDF causing the Amhara (together with the Oromo) to feel marginalised and harbour considerable resentment toward the Tigrayans while the EPRDF were in power. In 2014 large-scale anti-government protests occurred in both the Oromia and Amhara states which prompted a declared state of emergency under which approximately twenty thousand (20,000) people were arrested and one thousand (1,000) people killed.[55] The protests ultimately led to the resignation of Prime Minister Desalegn in February 2018.
[54] 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', Anadolu News Agency, 22 July 2021, DFAT Report @ p.9
The DFAT Report[56] assesses that the arrests of Amharas during the 2014–18 anti-government protests reflected the then federal government’s sensitivity to political opposition rather than being ethnically motivated. The DFAT Report[57] concludes that Amharas face a low risk of official discrimination based on their ethnicity. Although it does report[58] that Amharas have been subjected to ethnic-based attacks in states where they do not constitute a majority (particularly in Benishangul-Gumuz) and face a moderate risk of violence in areas or states where they are a minority. The applicant’s evidence is consistent with the available country information in that he was detained for his perceived political opinion rather than his ethnicity. His evidence was that he was detained in or about July 2013 approximately three (3) days after his father had been detained. His evidence was that he was held for approximately three (3) months during which he was interrogated about his father’s involvement with Ginbot 7. Upon his release the applicant was required to sign a document agreeing not to be involved in any anti-government activities.
[56] ibid
[57] ibid
[58] ibid
In April 2018, Abiy Ahmed (Abiy) was elected Prime Minister. The EPRDF was merged with three of the country’s four main ethno-regional political organisations – the Oromo Democratic Party, Amhara Democratic Party and Southern Ethiopian People’s Democratic Movement – and five regional allies to form the Prosperity Party. The TPLF, which had founded the EPRDF and dominated the party and the Ethiopian state for over 25 years, rejected the merger and later withdrew entirely but continued to rule in the Tigray region.[59]
[59] 'Can Ethiopia’s election help overcome age-old structural divisions?', Tegbaru Yared, Institute for Security Studies, 30 July 2021, http//: issafrica.s3.amazonaws.com/site/uploads/psc-137.pdf
The country information reports that under Abiy’s leadership the human rights situation in Ethiopia improved.[60] Restrictions on Amhara opposition political organisations[61] were lifted resulting in a rise in Amhara nationalism.[62] Amharas are currently represented at the federal political level and in the senior ranks of the public service and the military.[63] Approximately one quarter of lower house members in federal parliament are elected from the 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.
[60] ibid
[61] ibid
[62] Op Cit @ p.23
[63] ibid
In 2020 the Abiy government postponed national elections due to the coronavirus causing tensions between the TPLF and the Abiy government. In or about September 2020 tensions between the TPLF and the central government escalated when Tigray authorities defied the Abiy government and held its own regional election, an act that was declared illegal by the central government. In October 2020 the Abiy government cut ties with Tigray and suspended funding for the Tigray region, an action that was perceived by the northern region as a ‘declaration of war’.[64]
[64] BBC News ‘Ethiopia’s Tigray war: The short, medium and long story’ dated 29 July 2021, ww.bbc.com/news/world-africa-54964378
On 3 November 2020 the armed forces of the TPLF clashed with the federal forces when the TPLF attacked the Northern Command of the Ethiopian army stationed across Tigray, including in the regional capital Mekelle, killing soldiers and looting military hardware. On 4 November 2020, the government responded by launching a massive law enforcement operation in Tigray aimed at quelling what it considered an insurgency.[65] Three weeks after launching military operations, following the retaking of Mekelle, the Abiy government declared victory.[66] While fighting between Tigray and federal forces persisted, TPLF leaders remaining on the run.[67]
[65] Anadolu News Agency 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', , 22 July 2021, Reuters, 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, ww.reuters.com/world/tigray-war-intensifies-ethiopia-parades-new-army-recruits-2021-07-27/
[67] aljazeera 'Ethiopia regions send troops to back fight with Tigray rebels' dated 15 July 2021, ww.aljazeera.com/news/2021/7/15/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels
While designated a terrorist organisation by the Abiy government, the TPLF consider themselves the legitimate regional government of Tigray.[68] In late June 2021, Tigray forces (now rebranded the Tigray Defence Force (TDF)) regrouped and recaptured Mekelle.[69]
[68] BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’ dated 5 August 2021, ww.bbc.com/news/world-africa-58101912
[69] The Australian 'Ethiopia regions send troops to back fight with Tigray rebels', 16 July 2021, ww.theaustralian.com.au/news/latest-news/ethiopia-regions-send-troops-to-back-fight-with-tigray-rebels/news-story/8936fd7916b642a50c849e291d5547df
Abiy withdrew most troops from the region and declared a unilateral ceasefire.[70] It was reported that Amharas feared that Abiy’s June ceasefire could see them targeted. Ethnic Amharas, who had supported Abiy and his reform agenda, felt betrayed by the government’s declaration of a unilateral ceasefire. They feared that, without federal forces they may be targeted by the TPLF forces given the reports of Amhara civilians in Tigray being subjected to violence and abuse at the hands of TPLF soldiers.[71]
[70] ibid
[71] Aljazeera 'With a new mandate, Abiy can usher a new era of hope in Ethiopia', Yohannes Gedamu, 28 July 2021, >
However, the TDF rejected the ceasefire and demanded the full withdrawal of Eritrean troops and Amhara regional forces from Tigray, insisting on guarantees against federal forces returning to Tigray, and seeking an independent investigation into atrocities, access for aid and reinstatement of essential services including flights, electricity, telecommunications and healthcare.[72] In response Abiy tightened a ‘blockade’ around Tigray, choking the region’s entry points from receiving aid and cutting off power and communications infrastructure.[73]
[72] Africa Confidential 'Fighting escalates as federal ties fray', 22 July 2021, The Economist 'In Ethiopia’s civil war, Tigrayan forces take the offensive', 31 July 2021, USAID, 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021 ', , 30 July 2021,p.2,https//:reliefweb.int/sites/reliefweb.int/files/resources/2021_07_30%20USG%20Tigray%20Crisis%20Fact%20Sheet%20%2310.pdf; The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’, , 22 July 2021, Office for the Coordination of Humanitarian Affairs (OCHA) 'Ethiopia - Tigray Region Humanitarian Update, Situation Report', 26 July 2021, https//:reports.unocha.org/en/country/ethiopia/
The TDF then launched an offensive to drive ethnic Amhara forces from disputed territory in western and southern Tigray.[74] Tigrayan forces also pushed into Afar, the region to the east of Tigray, where they said they planned to target Amhara troops fighting alongside the federal military.[75]
[74] Agence France Presse (AFP) - France 'Ethiopia regions send troops to back fight with Tigray rebels', , 16 July 2021, 20210716153308
[75] 'As Tigray war intensifies, Ethiopia parades new army recruits', Reuters, 28 July 2021, 20210728104057
In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. Amhara security forces have also shifted to fight the TDF with the government forces.[76] On 18 July 2021, Abiy declared a ‘total war’ on the TPLF – contingents of Special Forces (professional soldiers) and local militia have been sent from all of Ethiopia’s regions (save Tigray) to encircle the ‘rebel region’.[77]
[76] 'Ethiopia regions send troops to back fight with Tigray rebels', Agence France Presse (AFP) - France, 16 July 2021, 20210716153308
[77] Africa Confidential, 'No good options on the table', 22 July 2021, 20210723134934
The country information reports that the conflict in Tigray has inflicted an enormous humanitarian and human rights toll on the people of the region. It is reported[78] that thousands of people have died in the fighting with approximately two (2) million people being displaced and more than 5 million relying on emergency food aid. Further it has been reported that the military operations to quell the TPLF have been accompanied by ‘numerous civilian massacres, looting, and other human rights abuses amidst a worsening food situation’.[79] From an estimated Tigrayan population of 6 million people, 5.2 million required humanitarian assistance and some 2 million others have been displaced because of the current conflict.[80]
[78] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021,
[79] The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, ww.thenewhumanitarian.org/news/2021/7/22/Ethiopian-government-accuses-aid-Tigray-rebels-disinformation
[80] Relief web 'Ethiopia – Tigray Conflict Fact Sheet #10 Fiscal Year (FY) 2021 ' dated 30 July 2021, reliefweb.int/report/ethiopia/ethiopia-tigray-conflict-fact-sheet-10-fiscal-year-fy-2021.
A July 2021 report[81] published by researchers at Belgium’s Ghent University states that ‘[w]hile no numbers exist for the total amount of civilian casualties’ 2,805 deaths are ‘well-documented’ and an additional 9,642 civilian deaths have been documented from (social) media reports, NGO reports and press releases. The researchers also highlight 245 massacres during the post-November 2020 conflict,[82] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[83] Sources also describe ‘a systematic campaign of ethnic cleansing in Tigray’ in which ‘fighters supporting the Abiy government […]’ were ‘deliberately and efficiently rendering Western Tigray ethnically homogeneous through the organized use of force and intimidation. […] Whole villages were severely damaged or completely erased’.[84]
[81] Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23,27, ibid
[83] The New York Times ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 Feb 2021 updated 1 April 2021 by Declan Walsh, Ibid; National Public Radio, ‘9 Things To Know About The Unfolding Crisis In Ethiopia's Tigray Region’ dated 5 March 2021, ww.npr.org/2021/03/05/973624991/9-things-to-know-about-the-unfolding-crisis-in-ethiopias-tigray-region;
On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[85] while a report by Amnesty International dated 10 August 2021 refers to widespread subjection of women and girls in Tigray to sexual violence by members of the Ethiopian National Défense Force (ENDF), the Eritrean Défense Force (EDF), the Amhara Regional Police Special Force (ASF), and Fano, an Amhara militia group.[86]
[85] The Australian 'Ethiopia threatens to deploy 'entire defensive capability' after rebel advances', dated 7 August 2021, ww.theaustralian.com.au/news/latest-news/tigray-rebels-reject-calls-to-leave-neighbouring-regions/news-story/a9d8b34317037e3c32cbb7eca62e8ae6
[86] Amnesty International ‘Ethiopia: Troops and militia rape, abduct women and girls in Tigray conflict – new report’,10 August 2021, ‘Ethiopia: ‘I don’t know if they realized I was a person’: Rape and sexual violence in Tigray, Ethiopia’, Amnesty International, 10 August 2021, 20210811161042
The country information reports that any issues faced by the Amhara people since the country’s elections in July 2021 primarily involve their relationship with the TPLF and Tigrayan advances on Amhara territory. On or about 28 June 2021 the TPLF re-took Mekelle and have subsequently expanded their military operations into parts of neighbouring Afar and Amhara regions. Intense fighting was reported in Ethiopia’s Amhara State where federal forces as well as Amhara regional troops were involved in fighting Tigray rebels.[87] As a result, it was reported that approximately 300,000 people have been displaced in Amhara and Afar.[88] Specifically, Reuters has reported that Tigrayan forces pushing south and west into the neighbouring Amhara region have displaced 200,000 people[89] and 54,000 people in Afar region to the east’.[90]
[87] BBC News 'Ethiopia's Tigray crisis: Fighting escalates despite ceasefire', 29 July 2021, 20210730141722
[88] BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’, 5 August 2021, 20210810114644
[89] Martin Griffiths is Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Office for the Coordination of Humanitarian Affairs.
[90] Reuters, 'Fighting displaces 200,000 in Ethiopia's Amhara region -U.N. aid chief', 4 August 2021, 20210805111323
In addition, Human Rights Watch[91] reports that longstanding grievances and polarisation over historical and complex issues concerning land, politics and identity, have led to violence among ethnic communities in Ethiopia. As to the Amhara this includes a conflict with Oromo groups in Harar over the use of the old national flag and decorations during the Orthodox Christian celebration Epiphany, resulting in casualties and the destruction of property. In addition, violence in Hachalu triggered one of the deadliest periods of unrest with over 170 people killed, some by security forces, and others by civilian assailants who also looted and burned the businesses and homes of ethnic Amharas and other minority communities.[92] Finally, violence by armed groups and among ethnic Gumuz, Agew, Amhara and other communities in the Metekel zone of the Benishangul-Gumuz region, intensified causing residents to flee.[93]
[91] Human Rights Watch, ‘Ethiopia Events 2020.’ ibid
[93] ibid
From the country information the Tribunal accepts that the situation in Ethiopia remains dangerous and volatile. However, the applicant’s evidence was that he was born and educated in Addis Ababa, Ethiopia and his family remain living in the capital city. As such, the Tribunal is satisfied that if the applicant is to return to Ethiopia, he would return to his home in Addis Ababa. The Amhara population in Addis Ababa makes up approximately 47 per cent of the population. The available country information indicates that as an ethnic Amhara there is no real chance that the applicant would be seriously harmed by the authorities as an ethnic Amhara upon his return to Addis Ababa, Ethiopia. The available country information reports that the Amharas have joined forces with the Abiy government to resist the Tigrayan forces, as such there is no real chance that the authorities would seriously harm the applicant as an ethnic Amhara. As a result, the Tribunal finds that there is no real chance that the applicant will be seriously harmed by the authorities by reason of his ethnicity upon his return to Ethiopia.
Finally, the Tribunal accepts there are inter-ethnic tensions in Ethiopia, generally, in relation to the occupation of disputed land bordering the respective territories of different ethnic groups (for example, the border between the Tigray and Amhara states). As a result, the inter-ethnic tension as described in the country information appears to lead to random violence in the regions as tensions overflow rather than in the capital city. That is, such interactions do not involve persecution based on systematic and discriminatory conduct as required pursuant to s.5J(4) of the Act. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia because of being an ethnic Amhara based on communal or inter-ethnic tensions.
Applicant’s imputed political opinion
The applicant claims that he will be imputed with an anti-government political opinion because his profile is linked to his father’s.[94] The applicant claims that in or about July 2013 his father was arrested and detained. The applicant’s evidence was that he was not aware of his father’s political opinions at that time. Nevertheless a few days after his father was detained, the applicant was also detained and interrogated about his father’s political opinion as a supporter of Ginbot 7. The applicant claims he was held for a period of approximately three months before being released on the condition that he sign a document agreeing not to be involved in any anti-government activities. The applicant did not provide any other independent evidence in relation to his father’s or his own detention by the authorities. Nevertheless, based on the available country information and the applicant’s evidence the Tribunal accepts that he and his father were detained as claimed.
[94] Applicant’s submissions dated 15 February 2021 @ p.2
However, as referred to above in the available country information reports the human rights situation in Ethiopia has improved[95] with restrictions on Amhara opposition political organisations[96] having been lifted. This has resulted in a rise in Amhara nationalism[97] with Amharas being represented at the federal political level and in the senior ranks of the public service and the military. [98]
[95] ibid
[96] ibid
[97] Op Cit @ p.23
[98] ibid
In June 2018, the federal parliament removed Ginbot 7, 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[99] and have returned from exile to participate in the political process.[100] It is reported[101] that more than ten thousand (10,000) political prisoners have been released since 2018. The leaders of Ginbot 7, Andargachew Tsege and Berhanu Nega, were released from prison and returned from exile.[102] It is reported that political opposition parties now operate in Ethiopia with greater freedom. Anti-government protests are now more common in Ethiopia. For example, in January 2020 a large-scale anti-government protest occurred in Amhara State accusing the government of not doing enough to secure the release of 27 ethnic Amhara university students who had been abducted in Oromia State.[103] DFAT has assessed that tolerance for political dissent has increased considerably since April 2018. Opposition parties can now organise and operate more freely, and it is assessed that their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. It is assessed by DFAT that Ethiopians can openly criticise the ruling party.[104]
[99] DFAT Report at p.28.
[100] Op Cit at p.16.
[101] Op Cit at p.28.
[102] Ibid.
[103] DFAT Report at p.28.
[104] Op Cit at p.29.
In addition, the Tribunal notes that the applicant’s father continued to live in Ethiopia without any further evidence of having been detained or arrested by the authorities. In addition, the applicant as [an Occupation 2] has freely departed and returned to Ethiopia on multiple occasions without being detained because of his imputed or actual political opinion. There was no evidence that he has been detained further because of his imputed political opinion.
Therefore, based on the available country information and the applicant’s own evidence the Tribunal finds that there is no real chance he will be seriously harmed if he is returned to Ethiopia by reason of his imputed political opinion.
Applicant’s actual political opinion
The applicant also claims that if he is returned to Ethiopia, there is a real chance he will be seriously harmed because of his actual political opinion due to his involvement and support of Ginbot 7. In similar circumstances as described by his partner [Ms A], the applicant claims that through people that he met while in detention, he became a registered member of Ginbot 7 in Ethiopia and contributed money to the organisation on a regular basis. In addition, the applicant and [Ms A] claimed that in or about June 2018 they both became a member of Ginbot 7 in Australia. Their evidence was that part of the Ginbot 7 organisation has now split to form the ‘Ethiopian Citizens for Social Justice Party’ (EZEMA). They claim that EZEMA is merely trying to keep the current ‘corrupt’ government in power. In their view nothing has changed in Ethiopia and as a result the applicant claims that he will be persecuted as a member of Ginbot 7 if returned to Ethiopia.
The country information reports that Ginbot 7 is an Ethiopian opposition political organisation, founded in 2008.[105] Ginbot 7 means ‘15 May’, the date of the Ethiopian general election in 2005.[106] According to its mission statement,[107] 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’.
[105] 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, Ethiopia 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).[108] Up until mid-2018, Ginbot 7 was considered a terrorist organisation by Ethiopia and the Intergovernmental Authority on Development (‘IGAD’). However as referred to above, in 2018 the federal parliament removed Ginbot 7 from its list of terrorist organisations. The organisation renounced its armed struggle[109] and returned from exile to participate in the political process.[110] Its leaders, Andargachew Tsege and Berhanu Nega, were pardoned and released from prison and returned from exile respectively.[111] More than ten thousand (10,000) political prisoners have been released since 2018.[112] It is reported that political opposition parties now operate in Ethiopia with greater freedom. As noted above DFAT has assessed that tolerance for political dissent has increased considerably since April 2018 and that Ethiopians are able to openly criticise the ruling party.[113]
[108] Ethiopian Review, Ethiopian News and Opinion Journal, ‘Ginbot 7 forges alliance with two other parties’ dated 27 August 2010: ethiopianreview.com/content/29003.
[109] DFAT Report at p.28.
[110] Op Cit at p.16.
[111] Ibid.
[112] Op Cit at p.28.
[113] Op Cit at p.29.
In any event, having been removed from the terrorist list and allowed to return to Ethiopia, Ginbot 7 was disbanded in or about May 2019 to form a new party known as EZEMA with six other organisations for the purposes of running at the 2021 general elections.[114] EZEMA is currently one of the major opposition parties in Ethiopia and has criticised the ruling party for gaps in the election process during the June 2021 general election.[115] The Tribunal notes that the current leader of EZEMA is Berhanu Nega,[116] who declared that the priority of EZEMA is to lead the country to democratisation and to ensure democracy in the country.[117]
[114] Africa News ‘Ethiopia's Ginbot 7 dissolves, transforms into new 'united' party’ dated 10 May 2019 by Abdur Rahman Alfa Shaban
[115] Borkena ‘Ethiopian citizens for social justice party criticize the ruling party’ dated 27 May 2021 http//: borkena.com/2021/05/27/ethiopian-citizens-for-social-justice-party-criticize-the-ruling-party/.
[116] Nazret.com ‘Ethiopia: Berhanu Nega elected leader of new opposition party,’ 12 May 2019
[117] Ibid.
The applicant and [Ms A] provided a statutory declaration by Mr [J] dated [in] March 2021, in which he claims to be [a prominent member] of Ginbot 7 in Australia. Consistent with the country information, he states that in or about May 2019 Ginbot 7 was reformed into EZEMA and that he is now [an office bearer] of the [City 1] Branch of EZEMA which was established in [2020]. Mr [J] confirms that the applicant and [the first applicant] were members of Ginbot 7 in Australia until November 2019.
100.Based on the available country information, the Tribunal accepts the applicant’s evidence that he was a member of Ginbot 7 in Ethiopia, as claimed. In addition, in circumstances where Ginbot 7 was still considered a terrorist organisation in 2017, the Tribunal is prepared to accept that the applicant’s friend [Mr C] was arrested, causing his other friends, [Mr D], [Mr E] and [Mr F] to go into hiding. Finally, based on the statutory declaration of Mr [J] and the supporting documentation provided by the applicant, the Tribunal accepts that he was a member of Ginbot 7 in Australia. In addition, based on the documentary evidence supplied by the applicant the Tribunal accepts that he had been a supporter of ESAT as claimed.
101.In circumstances where Mr Nega as leader of EZEMA has declared its priorities to be similar to those previously held by Ginbot 7, the Tribunal does not accept the applicant’s claim that EZEMA is merely trying to keep the current ‘corrupt’ government in power. EZEMA has acted against the government in calling out the ruling party in relation to deficiencies in the recent election process. In addition, from the evidence of Mr [J], now [an office bearer] of EZEMA in Australia, there appears to be no deviation in the organisation’s activities despite changing from Ginbot 7 to EZEMA. The country information indicates that EZEMA operates in Ethiopia without substantial interference from the ruling party and that its members are free to associate with the organisation and express their political opinion.
102.In addition, for the reason already detailed in relation to opposition parties being able to operate in Ethiopia the Tribunal does not accept that the applicant will be seriously harmed if he returns to Ethiopia as a result of having supported ESAT.
103.As such the Tribunal does not accept that the applicant will be persecuted because of his membership of Ginbot 7 or because of his financial support for the organisation. The Tribunal accepts that as [an Occupation 2] the applicant may have a higher profile. However, the fact that he has been able to travel into and out of Ethiopia multiple times in the past indicates that there is no real chance he will be seriously harmed. As such, the Tribunal does not accept that even with such a profile the applicant would be harmed if he was returned to Ethiopia. As such, the Tribunal finds that there is no real chance the applicant will be seriously harmed due to his actual political opinion if he is returned to Ethiopia.
Applicant as a failed asylum seeker
104.The applicant claims that he will be seriously harmed in the event he is returned to Ethiopia because he has made asylum claims in Australia, that is, as a failed asylum seeker. The applicant claims that since June 2020 Ethiopia has arbitrarily arrested and detained dozens of opposition members for prolonged periods.
105.However, the Tribunal notes that the DFAT Report states that since 2018 the authorities typically have welcomed voluntary returnees to Ethiopia, including government critics and opponents. DFAT assesses 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.[118] 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 Prime Minister 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.
[118] DFAT Report at p.48.
Applicant’s cumulative claim
106.The applicant submitted to the Tribunal that he has a cumulative claim for protection, including his past Ginbot 7 membership, his Amhara ethnicity and Orthodox Christian faith.[119] For the reasons expressed above the Tribunal finds that there is no real chance the applicant will be seriously harmed as a result of his past Ginbot 7 membership or his ethnicity as an Amhara.
[119] Representatives Submissions dated 19 May 2021. AAT File 1813712, Doc ID: 8439537
107.No evidence was provided to the Tribunal as to why the applicant would suffer serious harm because of being Orthodox Christian. The Tribunal notes that the country information reports that most Amhara are Orthodox Christian. The DFAT Report assesses that there is a low risk of official or societal discrimination or violence because of a person’s religion in Ethiopia. It assesses that people can practise their religion openly and freely. Accordingly, the Tribunal finds that there is no real chance the applicant will be seriously harmed if he is returned to Ethiopia because of his Orthodox Christian faith.
108.Finally, the applicant submitted that as a former member of Ginbot 7 who has not joined the EZEMA, he will be perceived as a political dissident upon his return to Ethiopia. Based on the applicant’s and [Ms A]’s evidence there appears to be no basis upon which the applicant would be considered a political dissident. The applicant claims, and it is accepted by the Tribunal, that he was once a member of Ginbot 7. However, he now claims that by not joining EZEMA he remains a political dissident and would be subjected to harm by the ruling party, that is, a person who is not attached to a particular organisation who objects to the current ruling party. In such circumstances it is difficult to know how the applicant would come to the attention of the ruling party. Even if he did come to the attention of the ruling party, as referred to above, the ruling party has embarked on an extensive reform agenda which has included the lifting of restrictions on freedom of expression. As such the Tribunal does not accept that the applicant would be a political dissident as claimed if he was returned to Ethiopia. Accordingly, the Tribunal finds that there is no real chance that the applicant would be seriously harmed if he is returned to Ethiopia because of being a political dissident as claimed.
[The second applicant]’s actual or imputed political opinion as a dependent child of the applicant and [Ms A]
109.The Tribunal, having found that there is no real chance that the applicant or [Ms A][120] will be seriously harmed by reason of their actual or imputed political opinions, finds that there is no real chance that [the second applicant] will be seriously harmed as a dependant of the applicant and [Ms A].
[120] AAT File No 1813712
110.Therefore, having regard to all the circumstances and findings above, considered individually and cumulatively, 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 s.5J(1)(b) of the Act and finds that the applicant is not a 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).
111.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Complementary protection
112.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
113.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 addition, the applicant submitted that as a result of his cumulative claims of his ethnicity, political opinion and religion that he would be significantly harmed on his return to Ethiopia.
114.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.[121] 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 being removed from Australia to Ethiopia by reason of him being an ethnic Amhara, by reason of his actual and/or imputed political opinion and as a failed asylum seeker.
[121] 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 Jagot JJ at [297], Flick J at [342].
115.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 to Ethiopia.
116.While the Tribunal accepts that the applicant is an ethnic Amhara, was a member of Ginbot 7 and holds political views opposed to the current ruling party, the Tribunal has not accepted that he would be seriously harmed as a result of his ethnicity or his actual and/or imputed 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 or because of his cumulative claims as claimed. 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.
117.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.
118.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.
119.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 he will suffer significant harm as required by s.36(2)(aa).
CONCLUSION
120.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) of the Act.
121.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).
122.[The second applicant] claims to meet 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, as the applicant does not satisfy s.36(2)(a) and s.36(2)(aa) of the Act, [the second applicant] does not satisfy the criterion in s.36(2).
DECISION
123.The Tribunal affirms the decision not to grant the applicants protection visas.
Jason Pennell
Senior 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
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
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.
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 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
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.
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Standing
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