1813714 (Refugee) - [2021] AATA 4588

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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading 1813714 (Refugee)

Details

AGLC: 1813714 (Refugee) [2021] AATA 4588
Case: [2021] AATA 4588
Decision Date: 7 September 2021

CaseChat Overview and Summary

The applicant, an Ethiopian national, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant claimed to fear persecution in Ethiopia due to his imputed political opinion, his membership in the Amhara ethnic group, his Orthodox Christian religion, and his association with a particular social group comprising failed asylum seekers who had attended Ethiopian Satellite Television (ESAT) fundraising events in Australia. The applicant's father had also been involved in political activities in Ethiopia.

The Federal Circuit Court was required to determine whether the applicant had established a real chance of suffering significant harm if returned to Ethiopia, based on his imputed political opinion, his race, his religion, or his membership in a particular social group. Specifically, the court had to consider whether the applicant's association with his father's political activities and his attendance at ESAT fundraising events in Australia would lead to him being targeted by the Ethiopian authorities. The court also had to assess whether the current political climate in Ethiopia, including the removal of Ginbot 7 from a terrorist list and the disbandment of the group, altered the assessment of risk.

In its reasoning, the court considered the evidence regarding the applicant's father's political activities and concluded that the applicant was not a member of the same family unit for the purposes of imputed political opinion. The court found that while the applicant had attended ESAT fundraising events, this did not, in itself, place him at risk of persecution. The court noted that there had been an increase in tolerance for political dissent in Ethiopia and that Ginbot 7 had been removed from the terrorist list and disbanded. Consequently, the court affirmed the decision under review, finding that the applicant had not established a real chance of suffering significant harm.

Orders