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

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).
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.
The Tribunal notes the applicant also sought Ministerial intervention on four occasions in the period from May 2013 to August 2015.
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.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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…

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 1819310 (Refugee)

Details

AGLC: 1819310 (Refugee) [2022] AATA 5069
Case: [2022] AATA 5069
Decision Date: 17 November 2022

CaseChat Overview and Summary

The applicant, an Ethiopian woman of Amhara ethnicity, sought review of a decision by the delegate of the Minister to refuse her protection visa application. The applicant claimed to fear persecution upon return to Ethiopia due to her ethnicity, past support for the opposition group Ginbot 7, and her experiences as a woman who had suffered sexual violence and related mental health issues. She also feared persecution as a failed asylum seeker and from her ex-husband.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether she had substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk that she would suffer significant harm. This involved assessing her claims of persecution based on her ethnicity, political opinion, and membership in a particular social group, as well as considering her personal vulnerabilities and the availability of state protection in Ethiopia.

The court considered the applicant's evidence, including her background, her involvement with Ginbot 7 in Australia, and country information regarding the political and security situation in Ethiopia. It noted that the delegate had not been satisfied that Australia had protection obligations. The court applied the principles of refugee law and complementary protection, referencing Ministerial Direction No. 84 and relevant guidelines. The court found that the delegate's decision was affected by error and remitted the matter for redetermination.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. The most recent country information report on Ethiopia was published by DFAT on 12 August 2020.CONSIDERATION OF Claims and evidenceRelevant background (including nationality findings) 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. 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. 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.