1819310 (Refugee)

[2022] AATA 5069

1819310 (Refugee) [2022] AATA 5069 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Angela Dwyer

CASE NUMBER:  1819310

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:Nicole Burns

DATE:17 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 17 November 2022 at 1:35pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – Amhara ethnicity – particular social group – women – workplace discrimination, harassment and sexual assault – political opinion – Ginbot 7 – political activities in Australia – political and security situation in Ethiopia post 2020 – gender-based violence – personal vulnerabilities when assessing the seriousness of any potential harm – state protection – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA. 36, 48, 65, 438, 424A
Migration Regulations 1994 (Cth), Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 June 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Ethiopia, came to Australia [in] July 2011 holding a visitor visa, to attend a [specified] training course in Queensland, sponsored by the Australian government (AusAID).  She first applied for a protection visa on 16 September 2011 which was refused on 10 November 2011.  She sought a review of that decision with the then Refugee Review Tribunal (RRT) who affirmed the delegate’s decision on 8 February 2013.  The applicant then sought approval for an extension of time to appeal the first Tribunal’s decision in the Federal Circuit Court of Australia but was unsuccessful [in] June 2015.  On 24 September 2015 the Minister lifted the s 48 bar in the applicant’s case, permitting her to lodge a second protection visa application, which she did on that same date.  That protection visa application is the subject of this review. 

3. The Tribunal notes the applicant also sought Ministerial intervention on four occasions in the period from May 2013 to August 2015. 

4. The applicant appeared before the Tribunal on 20 June 2022 to give evidence and present arguments about the issues in her case. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the relevant law and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Ethiopia there is a real risk she will suffer significant harm. 

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Non-disclosure certificate

8. As a preliminary matter, the Tribunal notes there is information on the Departmental file that is subject to a certificate dated 25 June 2018 made by a delegate of the Minister under

   
   

   s 438(1)(a) of the Act.  That section permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate ‘that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed.’  The Tribunal is satisfied the certificate is valid, noting the reasons given as to why it is not in the public interest for the information to be disclosed.

9. Having regard to the information to which the certificate is subject the Tribunal decided to disclose the information relevant to the applicant’s case by way of a s 424A letter sent to the representative after the hearing, which is discussed in more detail below (as well as the applicant’s response). The Tribunal considers the remaining information to which the certificate relates is either positive or neutral to the applicant’s case.

   Criteria for a protection visa

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

11. 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.

12. 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).

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

14. 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

15. 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.

16. The most recent country information report on Ethiopia was published by DFAT on 12 August 2020.

    CONSIDERATION OF Claims and evidence

    Relevant background (including nationality findings)

17. The applicant is a [age]-year-old woman from Bahir Dar, Amhara State in Ethiopia.  She is an Orthodox Christian of Amhara ethnicity.  She came to Australia on an Ethiopian passport – which has been cited by officers from the Department – financially supported by the Australian government’s aid program to attend training.  The delegate accepted her claimed identity and nationality, as does the Tribunal.  It finds Ethiopia is her receiving country for the purposes of assessing her protection claims. 

18. In her evidence to the Tribunal the applicant indicated she was born in Gondar, Amhara State which is where her [number] sisters continue to reside and where her mother did up until her death in 2020.  The applicant had [number] brothers: one died many years ago and the other purportedly has been missing after being detained by the police in Ethiopia shortly after she came to Australia and is presumed dead. 

19. The applicant’s father died in the historical war between Ethiopia and the Tigray People’s Liberation Front (TPLF).  As a child of a solider who had died in the war, the applicant became one of the beneficiaries of a scheme between the then Derg Government and the Government of Cuba, resulting in her living and studying in Cuba from the age of around [age] until [age] (from 1978 to 1990), obtaining a master’s degree in [Discipline 1].  At hearing the applicant said she did not see any of her family members during this time, who remained in Ethiopia.  On return to Ethiopia from Cuba in 1990 she secured a job with the [government] in Oromia State, then with [a different department] in different areas in Amhara State: the last time in its capital, Bahir Dar.  She worked as a [Occupation 1], and team leader. 

20. The applicant told the Tribunal she was married traditionally to a Muslim man in 1998 and they had a daughter, [Child A], born in [year].  They separated in 2009 and [Child A] remained living with the applicant.  She left [Child A] with her mother in Gondar when she came to Australia where she resided until [Child A]’s father collected her in around 2013.  [Child A], now an adult, has completed high school, is enrolled in a [Discipline 2] course, and lives by herself in Dessie, Amhara State.  She is supported by financial remittances from the applicant, who works in the [specified] sector in Australia.  Presently the applicant lives in shared accommodation in Melbourne.

    Protection claims and evidence

21. In summary the applicant claims to fear persecution from the Ethiopian authorities, and others on return to Ethiopia for several reasons.  These include due to her Amhara ethnicity and past support to a previously proscribed opposition group called Ginbot 7, in both Ethiopia and Australia.  Additionally, she fears persecution as a woman who has been a victim of sexual violence in the past, and is vulnerable due to related mental health issues, among other things.  Also, she fears persecution as a returnee/failed asylum seeker in Ethiopia. 

22. Before the Tribunal the applicant said she also fears her ex-husband, who is aggressive and may lash out at her on return, particularly as he now knows she used to support Ginbot 7. 

23. The applicant provided a statutory declaration to the Department dated 27 April 2018 in which she sets out her background and protection claims.  Her representative provided two written submissions describing the applicant’s background and addressing the applicant’s claims, received by the Department on 17 April 2018 and 23 May 2018 (pre and post interview with the delegate). 

24. Further material the applicant provided to the Department in support of the visa application included:

    • A copy of a letter from Ginbot 7 dated [in] July 2015 (which had been previously submitted to the Department).

    ·A copy of an article about the applicant (and her protection claims) published in [a] newspaper [in] 2015.

    • A statutory declaration dated [in] April 2018 (and photographs) from [Mr B], founder of Ginbot 7’s Melbourne branch.  In it he states he has known the applicant since she joined the Melbourne branch in 2011; she distributed brochures, recruited new members, sold books, participated in fundraising activities, and made monthly financial donations.  She also attends meetings and worked as an organising committee member and gathers information about the activities of government supporters.

25. The delegate was not satisfied Australia had protection obligations with respect to the applicant and refused her protection visa application on 22 June 2018.

26. On review the representative provided a comprehensive written submission[1] to the Tribunal in which she reiterates the applicant’s claims and addresses some of the concerns raised by the delegate.  She also provides an update about the applicant’s circumstances and country information relevant to her claims. 

    [1] Dated 15 April 2022.

27. The representative contends the applicant faces a well-founded fear of persecution on return to Ethiopia at the hands of the authorities and members of the community based on her:

    a.    Membership of the following particular social groups: ‘women’, ‘single women in Ethiopia’, ‘single Amhara women in Ethiopia’, and ‘mental health sufferers in Ethiopia;’

    b.    Actual and imputed political opinion on account of her active support for the Ginbot 7 party both in Ethiopia and in Australia; her political opinion and activities against the Ethiopian government in Australia as reported in the Australian media; and seeking asylum in Australia; and

    c.     Amhara ethnicity and Orthodox Christian religion.

28. The representatives advised in her submission that the applicant’s daughter suffered a sexual assault in Ethiopia during the recent conflict between the ruling party of the northern region of Tigray – the TPLF – and the Ethiopian central government. She was raped during the occupation of Dessie (Amhara region) in around September/October 2021.

29. Also provided to the Tribunal was a letter from [Ms C], the applicant’s counsellor at the ASRC, dated 12 April 2022.  [Ms C] states (among other things) that she has met with the applicant regularly since 2016, who presents with symptoms of anxiety and depression related to her experiences in Ethiopia and concerns if she has to return there.

30. In her oral evidence to the Tribunal the applicant described her background, reasons she left Ethiopia and extant fears, summarised as follows.  She said before she left Ethiopia in mid-2011 she lived in Bahir Dar – the capital of Amhara region, northern Ethiopia – with her daughter, [Child A], who was around [age].  She worked as a [Occupation 1] at the [government], in Amhara region.  She had worked in various positions for the [government] department (and in different areas in Amhara and Oromia regions) from around 1991 after she returned from studying in Cuba, where her highest qualification obtained was a master’s degree in [Discipline 1].  As an orphan of a veteran, she studied in Cuba from 1978 to 1990 on a Cuban government scholarship.  Her mother, and siblings – [number] sisters and a brother – stayed in Gondar in Ethiopia, which is around 170 kilometres away from Bahir Dar.  She had another older brother who died a very long time ago. 

31. The applicant said she married her husband in 1998 and they lived together until they separated in 2009.  Their relationship broke down due to conflict around their different religions – the applicant being Orthodox Christian and her ex-husband being Muslim.  Also, because they supported different political parties: that is, he supported the then ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) and the applicant an opposition group called Ginbot 7 (although her husband did not know that at the time).  He also worked in a similar field within the [government] department, which is where they met. 

32. The applicant said after they separated [Child A] stayed with her and followed her Christian religion.  When the applicant left Ethiopia in 2011, she left [Child A] with her mother in Gondar.  At that time her ex-husband lived in Debre Birhan (Amhara region), around 700 kilometres away.  In around 2013 he took [Child A] by force from her mother’s house.  [Child A] lived with her father until around 2017 before moving to live with her paternal aunt in Dessie.  The applicant said [Child A] moved mainly because her father had started to try and enforce his religion on her, including pressuring her to cover her hair. 

33. As noted, the applicant said [Child A] now lives by herself in Dessie, is studying [Discipline 2], and is supported financially by the applicant.  She said when fighting broke out between government forces and the TPLF in Dessie in September/October 2021 [Child A]’s aunt – who she had been living with (along with others) – fled to the mountains and [Child A] stayed in Dessie.  The applicant was unable to contact [Child A] for some time and when she did, she found out her daughter had been sexually assaulted.   

34. The applicant said when she was married her husband wanted her to join the EPRDF, but she did not want to: she considered them unfair and discriminatory.  She always felt an outsider after returning to Ethiopia from being supported to study abroad by the previous government.  Often colleagues would bring up her background, and she was not given opportunities at work, including promotions.  Also, because she refused to be complicit in their corrupt practices – for example by altering information about how much land in a certain area was productive in order to make them look good.  As a result she was demoted from her position as team leader in Debre Birhan, had rumours spread about her and was isolated by colleagues who were also EPRDF members.  The applicant explained that after working as a team leader from 2002 to 2005 in Debre Birhan she was demoted to an ordinary staff member and was paid less.     

35. The applicant said she became involved with Ginbot 7 in around mid-2009 when working in Debre Birhan.  She was attracted to Ginbot 7 for several reasons, including because she felt the EPRDF were unfair in general and personally she had experienced discrimination, harassment, and isolation because she did not support the party at work, and because of her background. 

36. Also, she had been raped by a colleague (also an EPRDF member) during a field trip and disbelieved when she reported the assault to her manager, who instead blamed her for seeking revenge because she had been demoted (because she refused to doctor reports, for instance).  The applicant said after that she told no one about the rape except for her mother.  She discovered she was pregnant and took traditional medicines for an abortion.  She said all these things that happened to her led to a determination to change the government.

37. The applicant said a friend ([Mr D]) who was involved with Ginbot 7 (and who had also studied in Cuba) introduced her to the group.  She had told him about her unfair treatment at work (without revealing she had been raped) and he told her about Ginbot 7 and its aims to change the government. She understood the party was established in 2008 and its leader was Prof. Berhanu Nega.  The party’s objective was for democratic decision making, freedom and equal opportunity for everyone.  She helped by reporting the ways reports were altered at work (among other things) to [Mr D] and also at meetings of members which were held in secret at various members’ houses.  She joined in 2009, and later that year separated from her husband.  Before she left Ethiopia no one knew she supported Ginbot 7 in these ways.

38. The applicant said in 2011 the Ethiopian government announced Ginbot 7 members (many of whom had been part of an opposition group called the Coalition Unity and Justice Party[2]) were ‘terrorists’ and started looking for members and supporters.  After she had left the country, police came to her house, where her brother was staying, and discovered Ginbot 7 brochures and confiscated her work laptop which contained email correspondence between herself and [Mr D] about Ginbot 7 and related matters.  The police took her brother (along with others), and he has not been heard from since. 

    [2] Also known as ‘Kinijit’.

1. The applicant said she heard from her cousin subsequently that her brother had been active with Ginbot 7 since 2008, and was outspoken, but she was not aware.  However, she knew he had supported CUD/Kinijit, and had voiced his opinion and protested from time to time, in particular around the time of the 2005 election where he persuaded people to vote for them.    

2. The applicant said after her brother was taken from her home in 2011, her mother went to the police station many times to enquire about him but was not told anything.  Her brother’s wife moved in with her own mother (with their daughter) in Gondar after he was taken.   When asked if her sister-in-law (or others) tried to find out what had happened to her brother, the applicant said this used to happen a lot and from time-to-time people were taken and killed: her family heard rumours that her brother was killed, possibly along with a group of people. 

3. The applicant said her mother told her about the police raid on her house after she left Ethiopia.  Some police visited her mother subsequently, labelled the applicant a terrorist as they found Ginbot 7 material at her house, and told the applicant’s mother to sign a piece of paper agreeing to tell them if she returns to Ethiopia.  The applicant was not sure when this happened.  After the police raided her house, the applicant said they threatened her family. 

4. Also, at some stage her sister who used to live with her mother was arrested and imprisoned for a month: she could not remember when this occurred.  The applicant said her sister believes the applicant’s ex-husband (who was an EPRDF member) had her arrested due to several altercations between the two when he used to come to her mother’s house to try and take away [Child A].  The applicant said her ex-husband was threatening towards her mother and sister before he took [Child A].  After he found out the applicant had been involved with Ginbot 7 he told her sister he would tell the authorities if she ever returned to Ethiopia.  Her sister (and mother) did not have any contact with him after he collected [Child A] in 2013. 

5. The applicant said her ex-husband came to know she supported Ginbot 7 following the police raid at her house not long after she left the country: it then became public knowledge. 

6. When asked the last time the police had contacted and/or visited either her mother or sisters in Ethiopia, the applicant said the police visited when she came to Australia and noted that her mother had died in 2020.  The Tribunal repeated the question: the applicant said she only knows she is on a list, and that they are looking for her. 

7. She added that as her story was published in the news in Australia (in 2015) her friends and former colleagues in Ethiopia are fearful the authorities will find her.  She explained that several media articles about her background and protection claims (specifically that she had opposed the Ethiopian government and was a member of Ginbot 7) which were published in Australia were also published online.  Some people warned her that it was dangerous for her to go back to Ethiopia in the comments section attached to the articles on platforms like [Social media 1] and [Social media 2].   

8. The applicant described her political activities in Australia.  She said when she came here, she spoke about her membership with Ginbot 7 and attended protests when there was political conflict back home.  She also joined Ginbot 7 party members here from around November 2011, for example attending and helping to organise meetings, helping to write slogans and displays for protests.  She has continued to help the new party – Ethiopian Citizens for Social Justice (Ezema) – as she agrees with the party’s vision of one Ethiopia, with people having the same rights to work, freedom and democracy (irrespective of their ethnic background), although noted activities slowed down during COVID. 

9. When asked why she has been politically active in Australia, the applicant said because she wants to change Ethiopia, and she has freedom to do so here.  She believes people should be free and there should be no divisions based on religion or ethnicity.  She will continue to be politically active if she has to return to Ethiopia, although noted it would be high risk.

10. After the hearing the representative provided to the Tribunal an additional written submission in which she refers to more up to date country information relevant to the applicant’s claims, since the August 2020 DFAT report.  She advised that after the hearing the applicant had attended a protest at [location] following violence against Amhara in Ethiopia.  Photographs were provided showing the applicant holding a sign which read: ‘[text redacted]’

11. The representative also provided a letter from [Mr E], Secretary, [Organisation 1] dated 26 June 2022. In it he states that the applicant has been a member of their association since April 2021.  He states the applicant has supported various activities and advocated for the Amhara peoples plight through protests, vigils, and fundraising activities (for example).  [Mr E] adds that as an Amhara organisation they are closely following political developments in Ethiopia and note the situation in general has deteriorated, and for Amhara people specifically who face episodic ethnic cleansing, pogroms and crimes against humanity in addition to economic and political exclusion and marginalisation across all Ethiopia.  He lists attacks on Amhara persons since 2018, and as a consequence of the war in Tigray – inside Amhara and outside – concluding that in his opinion if the applicant returns to Ethiopia, they believe her life will be in peril.

    Findings about the applicant’s past experiences, profile and ongoing fears

12. The Tribunal accepts the following about the applicant’s claims pertaining to her background, family, and study and work history.  Her oral evidence to the Tribunal on these matters was comprehensive, spontaneous and reasonably consistent with her earlier evidence to the Department (and earlier, the RRT).  The Tribunal accepts that she was born in Ethiopia and lived and studied in Cuba from the ages of [age] to [age]; then on return to Ethiopia she worked as a [Occupation 1] for various [government] departments in different regions; she married in 1998 and separated from her husband in 2009; and she left her daughter, [Child A], with her mother in Bahir Dar when she came to Australia in 2011.  [Child A] now lives independently in Dessie, Amhara State.  It accepts her mother died in 2020, a brother died many years ago, and her [number] sisters presently live in Gondar, Amhara region.   

13. Additionally, the Tribunal accepts the applicant is an Orthodox Christian of Amharic ethnicity. 

14. The Tribunal makes the following findings with respect to the applicant’s evidence related to her past experiences in Ethiopia (and in Australia) relevant to her protection claims, considered separately below.

    Workplace discrimination, harassment and sexual assault

15. The Tribunal has considered the applicant’s claims to have experienced discrimination and harassment in the workplace in Ethiopia, a result of her not supporting the then ruling EPRDF, refusing to engage in corrupt practices at work to make the EPRDF look good, and due to animosity from some colleagues because she had received a scholarship to study in Cuba under the previous Derg government. 

16. The Tribunal found her oral evidence about these matters detailed, spontaneous and generally consistent with her earlier written claims before the Department.  It accepts that although she was able to be gainfully employed in a professional capacity for several years in Ethiopia after she returned from studying in Cuba until her visit in Australia for short term training in 2011 – supported by her government employer in Ethiopia – she was demoted as claimed and passed up for promotions.  Additionally, it accepts she may have experienced other discrimination and verbal harassment and belittlement at times, possibly because of her background and failure to show her allegiance to the EPRDF at work. 

17. The Tribunal has also considered the applicant’s claim to have been raped by a colleague – also an EPRDF member at the time – in the past whilst on a field trip.  She claimed she told her supervisor on return from the trip that she had been assaulted (not raped, specifically) however he did not believe her.  She became pregnant as a result of the rape and terminated the pregnancy using traditional medicine.  In her statement to the Tribunal, she claims this resulted in her being unable to conceive again.

18. The Tribunal notes in her first protection visa application made in 2011 and at her hearing before the RRT in 2013 the applicant said she was assaulted by a colleague but made no mention of being raped. When she sought Ministerial Intervention a second time (on 12 March 2014), she submitted a report from her counsellor dated 6 September 2013 in which it was stated the applicant had disclosed she was raped by a male colleague whilst travelling for work in 2009; that she had fallen pregnant and had an abortion; and that she did not disclose the full details in her protection visa application or at the RRT hearing out of shame.  At hearing before the present Tribunal, the applicant said in the past she told the Department she was physically harmed, because she was ashamed and did not think it would be acceptable if she spoke about being raped.  She did not tell the previous Tribunal Member because he was male: she felt she could not tell him.

19. The applicant’s oral evidence about this incident, including the circumstances leading up to it, the dismissal of her account by her supervisor, pregnancy and subsequent abortion was consistent with what she had told her counsellor several years prior (as set out in the second Ministerial Intervention request consideration), and the delegate at interview (as recorded in the decision record) in respect of her 2015 protection visa application. 

20. For these reasons, and noting it is not uncommon for victims of sexual violence to delay disclosing their abuse for several reasons, including shame they feel over what happened to them, or trauma, or fear of authority,[3] the Tribunal accepts the applicant’s claims in these respects.  It does not draw an adverse inference from the fact she failed to raise the specific details about the sexual assault incident when she initially applied for protection, and before the RRT.   

    [3] United Nations High Commission for Refugees (UNHCR), Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2022 at para 35.

21. The Tribunal accepts the applicant’s claims that the perpetrator also supported the EPRDF at the time.  It is unclear if this was a motivating factor: that is if it was linked in any way to the perpetrator’s political allegiance to the EPRDF, or the applicant’s lack of it.  On the applicant’s own evidence at that stage no one – apart from [Mr D] – knew she supported Ginbot 7.  At hearing the applicant said she thinks it was more to do with the fact that when she was in a team leader position he used to try and get her to approve things, which she refused: she considers her assault may have been some kind of revenge. 

    Support to Ginbot 7

22. The Tribunal has gone on to consider the applicant’s claims to have supported a previously proscribed opposition party – Ginbot 7 – in Ethiopia from around 2009 to 2011, before she came to Australia.  In her statutory declaration provided to the Department she claimed before she joined Ginbot 7 in 2009 she had supported the Rainbow movement, that was part of CUD/Kinijit.

23. Ginbot 7 was established in 2008 and the name means 15 May in Amharic, referring to the date of parliamentary elections in 2005.[4] Ginbot 7 worked for regime change in Ethiopia and in June 2011, the Ethiopian government declared it a terrorist organisation.[5] It is reported to have had a widespread, secret party network organised in small, autonomous cells of four to five persons found across Ethiopia.[6]  

    [4] Landinfo – Country of Origin Information Centre 2012, Ethiopia: The Ginbot 7 party, UNHCR Refworld, 20 August, p.6.

    [5] Human Rights Watch, Human Rights Watch World Report 2012 Ethiopia, 22 January 2012; Landinfo – Country of Origin Information Centre, Ethiopia: The Ginbot 7 party, UNHCR Refworld, 20 August 2012, p.6; Freedom House, Freedom in the World 2012 – Ethiopia, 8 June 2012.

    [6] ‘Ethiopia: Opposition groups - Recent developments’, Danish Immigration Service, 1 January 2020.

24. The applicant claims she was motivated to join Ginbot 7 due to the then ruling party’s lack of fairness, corruption, nepotism (including at her workplace), and her own personal experiences of discrimination and ill treatment, including being passed up for promotions and isolated at work.  She claims the Ethiopian government became aware of her support to Ginbot 7 on discovering Ginbot 7 related materials and correspondence with Ginbot 7 members in her home and on her computer when they raided her house shortly after she left Ethiopia in 2011.  She claims her brother – who was staying at her house at the time and had supported Ginbot 7 (and before that CUD/Kinijit) – was taken by the police at this time and has not been heard from since. 

25. The Tribunal accepts the applicant was interested in and supported Ginbot 7 in some ways in the past in Ethiopia, and before that CUD/Kinijit, as claimed.  Her oral evidence about how she was introduced to the party and what attracted her appeared sound and considered.  Her critique of the then ruling EPRDF fits with someone of her educational background and work history.  Also, for the reasons above the Tribunal has accepted the applicant experienced discrimination and harassment at the workplace during her career in Ethiopia, at times due to the fact she was not aligned to the EPRDF and refused to engage in corrupt practices. 

26. On the applicant’s own evidence no one knew she supported Ginbot 7 in Ethiopia (apart from other Ginbot 7 members) and therefore she was not of adverse interest to the authorities and did not experience any particular problems in Ethiopia for this reason.  This explains her ability to obtain a passport and leave the country (funded by AusAID, with the support of her government employer) without any issues.

27. The Tribunal has some concerns about the applicant’s claims that the Ethiopian authorities discovered her involvement with Ginbot 7 when they raided her house and found Ginbot 7 material in the form of pamphlets and information on her laptop, given the alleged timing of this incident, shortly after she had left Ethiopia. 

28. Additionally, the Tribunal finds her claims that she supported Ginbot 7 in secret (and knew of the risks in doing so) and was afraid to recruit anyone due to the risks, at odds with her evidence that she openly left Ginbot 7 pamphlets at her house when she left the country.  Also, the fact she had material related to Ginbot 7 on her (government issued) laptop – which she did not take with her or seek to hide.  This was during a time when she claims the Ethiopian government were clamping down on opposition supporters, and Ginbot 7 was proscribed by the Ethiopian government.  At hearing when asked why she had Ginbot 7 brochures, she answered that it was because she wanted to read them.  She was not able to adequately explain why she kept such material at her home without trying to hide the material, given the risks if discovered. 

29. Given these concerns the Tribunal is of the view the applicant fabricated this aspect of her claims, in order to strengthen her case.  It does not accept the police raided her home shortly after she left Ethiopia in 2011 and found Ginbot 7 material there, including on her laptop. It follows that the Tribunal also does not accept the police arrested and detained her brother, who was staying at her home, at this time.  Additionally, the Tribunal does not accept the authorities visited the applicant’s mother to enquire about the applicant or detained her mother or sister at a later date, questioning them about the applicant, or required the applicant’s mother to sign a piece of paper promising to advise them on her return to Ethiopia.  The Tribunal does not accept the applicant’s name is on a list or that the Ethiopian authorities are looking for her, as claimed at hearing.

30. The applicant has claimed her brother – [Mr F] – was a member of Ginbot 7 since 2008, and before that a well-known supporter of CUD/Kinijit, speaking out against the government.  At hearing she said he was particularly active around the 2005 elections.  When she was in Australia her cousin told her he also supported Ginbot 7 since 2008 however she did not know at that time (or before she left Ethiopia). 

31. As the applicant’s claims about her brother’s support to opposition parties in Ethiopia has been generally consistent, the Tribunal is willing to accept he may have supported opposition groups such as CUD/Kinijit and Ginbot 7 in the past in some capacity.  He may have experienced problems with the authorities in Ethiopia in the past during the time the EPRDF were in power as a result, given country information indicates that the EPRDF – in power from 1988 to early 2018 – largely controlled Ethiopian politics and had little tolerance for opposition or perceived dissent.[7]  However given the concerns with the applicant’s evidence about this alleged incident, the Tribunal is unable to be satisfied her house was raided, and her brother taken by the security forces in 2011 (and has been missing since), as claimed. 

    [7] DFAT Country Information Report, Ethiopia, 1 April 2016 at 2.17.

32. As noted earlier, the Departmental file in the applicant’s case contains records of financial transactions by a person in Melbourne to some recipients in Ethiopia (between 2014 and 2015).  These include to a person in 2014 whose name resembles that of the applicant’s mother, and to a person on three occasions in late 2014 and in 2015 to a person whose name resembles the applicant’s brother’s name.[8]  If accepted, this casts doubts on the applicant’s claim that her brother was arrested by the authorities and disappeared several years prior, in 2011.

    [8] As indicated in the applicant’s protection visa application.

33. The Tribunal invited the applicant’s comments on this information.[9]  In her written submission provided in response[10] the representative states that the applicant has no knowledge of these payments; she does not know the person’s name; and the payments could not have been sent to her brother as he has been missing since 2011 and no one has heard from him since the authorities took him from her home in Gondar. Additionally, the applicant instructs that in her hometown of Gondar everyone has a three-part name, and it is common for people to share the same names.  She speculates that any funds sent by the person in Melbourne in 2014 and 2015 were sent to two individuals in Gondar who happen to share the same name as her mother and brother.  The applicant also points out (via the representative) that the spelling of her surname and the surname of the person in Melbourne who sent the funds, whilst similar, is different. 

    [9] In a letter dated 25 July 2022 pursuant to s 424A of the Act.  The Tribunal attached a copy of the non-disclosure certificate attached to that information dated 25 June 2018 with its letter. 

    [10] Dated 4 August 2022.

34. The Tribunal notes at hearing and in her earlier written evidence to the Department the applicant claimed her house – which was raided and where her brother was allegedly staying – was in Bahir Dar, not Gondar, which casts further doubts about her claims related to this incident.  

35. Nonetheless, having regard to the financial transaction information and the applicant’s response, the Tribunal considers it possible the recipient of funds (in 2014 and 2015) in Ethiopia was not the applicant’s brother, but someone who has a similar name (or shares his name).  On its own such information does not lead the Tribunal to be satisfied the applicant’s claims pertaining to the circumstances of her brother’s alleged disappearance are untrue, and therefore gives this information no weight. 

1. However, for the reasons above the Tribunal is not satisfied the applicant’s house was raided in 2011 and her brother taken by the security forces in the claimed circumstances.  It remains unclear to the Tribunal what has happened to the applicant’s brother and his circumstances in general. 

   Political (and other) activities in Australia

2. The Tribunal has considered the applicant’s claims to have actively supported Ginbot 7 and its successor, Ezema, in Australia since not long after her arrival in 2011.

3. Based on her oral evidence at hearing about her activities in support of these groups in Australia, and reasons given for her involvement, combined with letters of support from Ginbot 7 members,[11] the Tribunal accepts her claims in this regard.  It accepts her role included organising meetings, and fundraising.  It accepts her activities declined somewhat during COVID-19 and related restrictions.  Based on photographs and a letter from [Organisation 1] the Tribunal also accepts she has been actively supporting Amhara rights promotion activities since April 2021, and that she attended a protest against Amhara people being killed in mid-June in Oromia region, Ethiopia at [location] in Melbourne [in] June 2022.    

   [11] The applicant had provided a letter from [Mr G], Secretary General, Ginbot 7 dated [in] June 2012 to the Department in support of her first protection visa application, and a further letter from him dated [in] November 2012 to the RRT.  In his letter [Mr G] confirms that the applicant is an active member in Melbourne.  

4. As the Tribunal has accepted the applicant was politically active against the government in Ethiopia in the past (through her support to Ginbot 7), and had been harassed, mistreated (including being raped on one occasion) by work colleagues (some with EPRDF links) in Ethiopia, the Tribunal is willing to accept her motivations to support Ginbot 7 in Australia are genuine, including to try and generate political change in her home country.  It also accepts she has the freedom to protest here, as indicated at hearing. The Tribunal is satisfied the applicant engaged in such conduct otherwise than for the purpose of strengthening her claim to be a refugee, and therefore has not disregarded that conduct as per s 5J(6) of the Act.

5. Further the Tribunal accepts the applicant was interviewed in 2015 and her story – including specific protection claims – was published in [a newspaper] [in] 2015.  The Tribunal accepts it is possible this story was picked up by other media and online news sources, as claimed. 

   Well-founded fear of persecution in the future

6. Given these findings about the applicant’s past experiences and profile, the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Ethiopia for any refugee reason or reasons, considering country information relevant to her claims and profile, as follows.

7. The Tribunal finds the applicant’s home area is Bahir Dar, the capital of Amhara where she last resided.  At hearing she explained that Bahir Dar’s population is made up of a majority of Christians, and people of Amhara ethnicity, like herself.

8. The Tribunal has accepted the applicant supported Ginbot 7 in Ethiopia from 2009 to 2011, albeit in a limited way and no one knew about it (outside Ginbot 7).  It does not accept her house was raided by the authorities and pro-Ginbot 7 material discovered, or that her brother – whom it accepts also supported Ginbot 7 and CUD/Kinijit – disappeared in that raid as claimed.  Nor does the Tribunal accept the applicant’s mother and sister were visited or questioned or detained by the authorities about her at times (or her brother), thereafter or that her mother had to sign a document promising to report to the authorities if she returned to Ethiopia.  The Tribunal has also accepted the applicant has been politically active in Australia in support of Ginbot 7 and more recently its successor, Ezema. 

9. The Tribunal notes there have been significant changes in Ethiopia’s political landscape since the applicant left, in particular after Prime Minister Abiy took power in April 2018, which heralded a number of reforms and the opening up of political space and the unshackling of opposition.  This included the removal of certain groups, including Ginbot 7, from the government’s list of terrorist organisations and an invitation for its leaders to return to Ethiopia and engage in political discussions.[12]

   [12] Daniel Mumbere, ‘Ethiopia removes ‘terrorist’ label from OLF, ONLF and Ginbot 7 opposition groups’, africanews.com, 5 July 2018, and Abdur Rahman Alfa Shaban, ‘Ethiopia’s ex-revel group Ginbot 7 returns from Eritrea based’ Africanews.com, 3 September 2018,

10. Other positive changes under Abiy’s leadership in the initial period include: a dramatic shift in the government’s stance towards the political opposition, freedom of speech and the state’s relationship with Eritrea; the release of thousands of political prisoners, including high profile and prominent party members and critics of the government; a decrease in arrests and confrontation with party members and protesters; and a generally increased tolerance for political dissidents.[13]   

    [13] DFAT Country Information Report, Ethiopia, 12 August 2020; UK Home Office, Country Policy and Information Note - Ethiopia: Opposition to the government, Version 4.0, July 2020, at 2.4.8–2.4.9.

11. Some of these developments were discussed with the applicant at hearing.  She said it’s the same people in government: some went to Tigray after internal conflict, but the structure is the same.  Abiy’s party changed their name to ‘prosperity’ but is made up of the same group of people, only without some TPLF leaders who went to Tigray, she noted.  As well, the applicant said the people in the previous government divided people based on ethnicity and such divisions still exist, with ethnic conflict worsening when the leaders went to Tigray, and the current government does not protect an individual’s safety.

12. The applicant added that if she returns to Ethiopia, she will be in danger wherever she goes, and the situation is worse than before because she does not know which group would get her first.  If she goes to other parts of the country where Amhara people are a minority she would be in danger and if she goes where she is a majority there is conflict, particularly Gondar. 

13. With respect to the treatment of opposition supporters in Ethiopia, the applicant said even though such groups are no longer considered terrorist, it is not safe for people to express their opinions if different from the government: they could be imprisoned, get killed, and are even in danger by association. She said at election time people were killed for trying to garner votes in an area close to Addis Ababa, and that whilst their leaders may now be in parliament, party members are still suffering.

14. Despite the initial positive changes under Abiy, country information (detailed below) indicates the situation for political opponents of the government (or those perceived to be), has deteriorated since 2020, ethnic tensions have increased, and resulted in violence in some instances (including between Amhara persons and Oromos), and overall Ethiopia remains volatile and insecure. There has been a notable reversal of some of the gains brought in after Abiy came to power and the opening up of political space and freedoms halted in some cases, in such a climate of insecurity.   

15. Additionally, country information indicates women are at particular risk of conflict related violence, including in Amhara State.  Political conflict has erupted in inter-communal violence and religious tensions, with a significant loss of civilian life and other acts of violence such as rape and beatings of women and girls in conflict areas, including parts of Amhara region which borders Tigray in the north, discussed further below.   

16. Accordingly, for these and the reasons that follow, the Tribunal finds the applicant faces a real chance of serious harm on return to Ethiopia from the community due to her Amhara ethnicity, and her membership of a particular social group of women.  In reaching this conclusion the Tribunal has considered the significant political, social and security developments in Ethiopia since the DFAT report was published in August 2020, explored further below.

17. Presently Ethiopia is in the midst of an increasingly volatile political transition that began in 2018 when Prime Minister Abiy Ahmed came to power and the TPLF (who had headed up the EPRDF coalition that ruled the country for nearly 30 years) was ousted. Abiy, who is from Oromia (the largest of Ethiopia’s 11 ethnically based regions by area) pledged a new era of national unity, democracy and stability in Ethiopia. Several commentators have noted that whilst at first reforms brought about by Abiy seemed to hold great promise, fractures have grown, particularly among the country’s numerous ethnic groups. War between the federal and Tigray governments broke out in the northern region of Ethiopia in late 2020, as these tensions came to the fore.

18. In a recent report, an analyst for the International Crisis Group (ICG) state that the conflict in Ethiopia has exacted a terrible human toll, considered among the world’s deadliest conflicts according to most estimates (although reliable information is hard to come by).[14] 

    [14] International Crisis Group, ‘A call to action: averting atrocities in Ethiopia’s Tigray War, 20 October 2022.

19. Since Abiy became Prime Minister in 2018, the Armed Conflict Location & Event Data Project (ACLED) has identified more than 3,000 incidents of ‘organised violence’ and more than 8,000 civilian deaths across the country, but the true figure is probably several times higher.[15] 

    [15] The Economist, ‘Two ethnic revolts rack Ethiopia at the same time’, 25 August 2022.

20. By way of context and background to the recent conflict in the north, according to the ICG, the TPLF had dominated Ethiopia’s politics and security apparatus for more than two decades.  After war broke out, federal troops, Eritrean solders and Amhara regional forces pushed into Tigray and took its capital, Mekelle.  TPLF leaders fled to the mountains where they regrouped and then launched a subsequent guerrilla campaign.  Months later they were able to recapture Mekelle, reinstalled the TPLF government, and the Tigray troops launched an offensive, capturing territory in several directions in Amhara and pushing south toward Addis Ababa in an attempt to dislodge Abiy from power.  They failed and were pushed back by federal forces, retreating to their home region in December 2021.[16] 

    [16] International Crisis Group, ‘A call to action: averting atrocities in Ethiopia’s Tigray War, 20 October 2022.

21. On 24 August this year, war resumed in northern Ethiopia after a nine-month truce.[17] Reports indicate that federal troops are pushing into Tigray on several fronts alongside Eritrean soldiers and forces (including Amhara militia called Fano) from Amhara region, which borders Tigray.  In the same ICG report referenced earlier, they state that Federal and Eritrean forces have targeted civilians, some who have been trapped in the line of fire.  Humanitarian and diplomatic sources have told ICG the battles since August 24 (2022) may have involved more than half a million combatants and killed tens of thousands of people.[18] 

    [17] International Crisis Group, Statement/Africa, ‘Avoiding the Abyss as War Resumes in Northern Ethiopia’, 7 September 2022.

    [18] International Crisis Group, ‘A call to action: averting atrocities in Ethiopia’s Tigray War, 20 October 2022.

22. There are reports of substantial civilian deaths and other violence that occurred prior to the recent conflict phase, since the conflict first began in November 2020.  For instance, a report of the International Commission of Human Rights Experts on Ethiopia, delivered at the 51^st session of the UN Human Rights Council (12 September–7 October 2022) concluded there are reasonable grounds to believe that violations, such as extrajudicial killings, rape, sexual violence, and starvation of the civilian population as a method of warfare have been committed in Ethiopia since 3 November 2020.  The report’s specific findings relevant to the applicant’s claims and ethnic profile include as follows:

    ·     Tigrayan forces advanced on the town of Kobo in northern Amhara in July 2021, which they eventually captured.  On 9 September 2021, once the fighting had stopped, Tigrayan forces searched for the men of the village, separating them from women and children before executing them, often in front of family members, according to witnesses.  The killings were frequently marked by additional acts of violence and brutality, including beatings, rapes and the use of ethnic slurs against Amhara.

    ·     As part of their offensive into the Amhara region, Tigrayan forces captured the village of Chenna after battling the ENDF and allied Amhara militias.  Once the fighting was over, witnesses reported that Tigrayan forces searched for the men of the village in late August and early September 2021, separating them from women and children before executing them, often in front of family members.  The killings were accompanied by additional acts of violence and brutality, such as beatings and rapes of women and girls as young as eleven. Tigrayan forces coerced women to cook for them and provide food and water without compensation.

    ·     During this period, Tigrayan forces caused widespread damage to civilian homes, schools, health centres and churches. They also conducted widespread looting, including of food, furniture, livestock and construction equipment.[19]

    [19] UN Human Rights Council, ‘Report of the International Commission of Human Rights Experts on Ethiopia’ (A/HRC/51/46), Human Rights Council, Fifty-first session, 12 September -7 October 2022,

23. The UN Human Rights council concluded (among other findings) that there were reasonable grounds to believe that Tigrayan forces killed civilians and persons rendered hors de combat, raped, looted, and damaged or destroyed civilian infrastructure and property in Kobo and Chenna (Amhara region) in late August and early September 2021.[20]

    [20] UN Human Rights Council, ibid.

24. The same UN report noted the following about the prevalence of rape and sexual violence since armed conflict erupted in Ethiopia in late 2020:

    Sexual and gender-based violence (SGBV), in particular rape, has been perpetrated on a staggering scale since armed conflict erupted in Ethiopia in November 2020. While different communities have been affected, Tigrayan women and girls have been targeted with particular violence and brutality.

    The culture of silence that can surround sexual violence, frequently stemming from gender stereotypes, social stigma, and fear of reprisal, means that survivors are often reluctant to speak out. Therefore, rape and sexual violence are often chronically underreported. Nonetheless, many of the 24 survivors who spoke to the Commission vocally demanded justice, access to services, and restoration of peace and stability.[21]

    [21] UN Human Rights Council, ibid.

25. Whilst the UN report notes Tigrayan women and girls have been targeted with ‘particular violence and brutality’, it states that Tigrayan forces also committed acts of rape and sexual violence. Many of these acts occurred when Tigrayan forces took control of parts of Amhara from August 2021. According to testimonies contained in the report, women and girls reported being raped or gang raped by Tigrayan fighters in their homes during searches, or while hiding with friends or relatives. Some were raped in nearby forested areas. In several cases, Tigrayan forces told their victims that the rapes were revenge for the widespread rape of Tigrayan women and girls. This led the UN Human Rights Council to conclude (among other findings) that there were reasonable grounds to believe that Tigrayan Forces have committed acts of rape and sexual violence, albeit on a smaller scale (than acts of rape and sexual violence committed by the ENDF, EDF, and Fano against Tigrayan women and girls.)[22]

    [22] UN Human Rights Council, ibid. 

26. In the Human Rights Watch (HRW) world report for 2021 it is stated that conflict in Tigray expanded into neighbouring Amhara and Afar regions in July (2021), displacing hundreds of thousands; and that Tigrayan forces summarily executed Amhara civilians and were implicated in the pillage of civilian property.  In Amhara region, fighting between Tigrayan forces and Ethiopian and allied forces intensified; in August and September Tigrayan fighters summarily executed Amhara residents in Chenna and Kobo towns, and committed rape, including gang rape in Nifas Mewcha.[23]

    [23] Human Rights Watch, World Report 2022, ‘Ethiopia, Events of 2021’.

100.   In a report published in February 2022 on summary killings, rapes and looting by Tigrayan forces in Amhara, Amnesty International found, after interviewing dozens of victims and witnesses, that Tigrayan fighters affiliated with the TPLF ‘deliberately killed civilians, gang raped and sexually assaulted women and girls, and looted private property in two local ties in Ethiopia’s northern Amhara region.’  They state most of the crimes occurred in late August and early September 2021, a couple of months after parts of the Amhara region came under the control of Tigrayan forces.  Several of the survivors said they were gang-raped by Tigrayan fighters who often threatened them and used racial slurs.[24]

[24] Amnesty International, ‘Ethiopia: Summary Killings, Rape and Looting by Tigrayan Forces in Amhara’, February 2022.

101.   Amnesty report that these were not the first or only cases of rape and sexual assaults against Amhara women and girls by Tigrayan fighters, referring to previously documented similar atrocities by Tigrayan fighters in Nifas Mewcha and other areas of Amhara region.[25]

[25] Widespread sexual violence by Tigrayan forces has also been reported in the town of Woldiya, 500 km south-east of Chenna. Channel 4, 27 January 2022, and in the town of Hayk, 100 km south of Woldiya.

102.   Additionally, Amnesty reports that TPLF fighters also subjected women to dehumanising verbal assaults, degrading ethnic racial slurs (against Amhara women); and in some instances they told them they were raping them in revenge for the rape of Tigrayan women by Federal government forces.[26]

[26] Amnesty International, ‘Ethiopia: Survivors of TPLF attack in Amhara describe gang rape, looting and physical assaults’, November 9, 2021.

103.   The destabilisation caused by the conflict in Tigray has seen an increase in inter-ethnic tensions and violence including between the Oromo and Amhara people, with DFAT stating in their August 2020 report that violence based on ethnicity is ‘a growing concern in regional states.’  DFAT also describes ethnic violence occurring between the Amhara and Tigray people in the northern portion of Ethiopia.[27]

[27] DFAT Country Information Report, Ethiopia, 12 August 2020 at 3.3 and 3.14.

104.   Country information (including that referenced by the representative in her pre and post hearing submissions to the Tribunal) suggests that the scale of ethnic violence taking place in Ethiopia has accelerated since the end of 2020, after the DFAT report was published. For example:

·     On 30 August 2021, the German Federal Office for Migration and Refugees[28] reported of the deaths of 150 ethnic Amhara allegedly killed by the Oromo Liberation Army (OLA) in Oromia. 

[28] Briefing Notes, BAMF - Federal Office for Migration and Refugees (Germany), 30 August 2021, p.4.

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

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

…

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

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

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

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

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

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

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

…

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

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

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

…

5H  Meaning of refugee

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

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

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

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

…

5J   Meaning of well-founded fear of persecution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b)   significant physical harassment of the person;

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

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

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

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

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

5K  Membership of a particular social group consisting of family

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

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

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

(i)the first person has ever experienced; or

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

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

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

5L   Membership of a particular social group other than family

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

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

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

(c)   any of the following apply:

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

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

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

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

5LA Effective protection measures

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

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

(i)the relevant State; or

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

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

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

(a)   the person can access the protection; and

(b)   the protection is durable; and

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

…

36   Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…