1823335 (Refugee) - [2022] AATA 3597

1823335 (Refugee) [2022] AATA 3597 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Karen Richards (MARN: 1279323)
CASE NUMBER:  1823335
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Jason Pennell
DATE:7 July 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 7 July 2022 at 2.18pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity, political opinion and member of particular social group – worked for business with links to Oromo political/advocacy movement – employees harassed, assaulted and threatened, applicant detained and business forced to close – sister’s and father’s whereabouts unknown – separated woman with young child – interim domestic violence order – credibility – country information – political insecurity, deteriorating human rights and social tensions – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1)(a), (b), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Calado v MIMA (1998) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
Maningat v MIMA (FCA, Tamberlin J, 30 April 1998)
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIEA v Guo (1997) 191 CLR 559
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 dependants.

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 9 August 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, applied for the visa on 24 April 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.
The applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (the Tribunal) on 13 August 2018 and provided the Tribunal with a copy of the delegate’s decision record.
The applicant appeared before the Tribunal in-person on 6 May 2022 to give evidence and present arguments. The Tribunal had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. As such, the Tribunal is satisfied the applicant was given a fair opportunity to give evidence and present arguments.The Tribunal hearing was assisted by an interpreter in the Amharic and English languages.
The applicant was represented in relation to the review by her registered migration agent, Ms Karen Richards of McDermott Richards Lawyers. The representative attended the Tribunal…

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 1823335 (Refugee)

Details

AGLC: 1823335 (Refugee) [2022] AATA 3597
Case: [2022] AATA 3597
Decision Date: 7 July 2022

CaseChat Overview and Summary

The applicant sought a protection visa, claiming a well-founded fear of persecution in Ethiopia based on her ethnicity, imputed political opinion, and membership in a particular social group. The dispute concerned whether the applicant met the criteria for a protection visa under the Migration Act 1958 (Cth). The matter was before the Administrative Appeals Tribunal.

The Tribunal was required to determine if the applicant had a well-founded fear of persecution for reasons of race, political opinion, or membership of a particular social group. Specifically, it needed to assess whether there was a real chance the applicant would suffer serious harm if returned to Ethiopia, and if such harm would involve systematic and discriminatory conduct. The Tribunal also had to consider whether effective protection measures were available to the applicant in Ethiopia.

The Tribunal considered extensive country information regarding the volatile political and social situation in Ethiopia, including inter-ethnic tensions, government actions against opposition groups, and widespread human rights abuses. It accepted that the applicant's fear of persecution involved systematic and discriminatory conduct against ethnic Oromos. The Tribunal found that the applicant's father was an OLF supporter and had disappeared after attending a protest, leading to an imputed political opinion. It also accepted the applicant's evidence of her own opposition to government policies and her advocacy for the Oromo people. However, due to the passage of time and lack of evidence of continued involvement with opposition parties, the Tribunal did not accept a real chance of harm based on her actual political opinion. The Tribunal also found that as a divorced single woman with a child, the applicant faced a real chance of serious harm due to the prevalence of domestic and sexual violence in Ethiopia and the lack of effective state protection.

Consequently, the Tribunal remitted the decision to the delegate for reconsideration, accepting that the applicant had established a real chance of serious harm based on her ethnicity and her status as a divorced single woman with a child, thereby meeting the criteria for a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The OFC and the OLF were planning to participate in the 2021 election but boycotted the election and did not run,[88] claiming that it would be hard for them to participate due to the high levels of arrests and detainments of its members and supporters, including Jawar.[89][88] Borkena.com. "Oromo Liberation Front takes queue after OFC, opted out of Election", 3 May 2021, borkena.com/2021/03/05/oromo-liberation-front-takes-queue-after-ofc-opted-out-of-election/[89] stratfor.com, "Ethiopia: Oromo Opposition Party to Boycott 2021 Elections", 9 December 2020, >In or about September 2020, tensions between the TPLF and the central government escalated when Tigray authorities defied the Abiy government and held their 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’.[90][90] BBC News ‘Ethiopia’s Tigray war: The short, medium and long story’, dated 29 July 2021, >Armed clashes between the TPLF and federal forces commenced on 3 November 2020, when the TPLF attacked the Northern Command of the Ethiopian army stationed across Tigray, including in the regional capital Mekelle. The TPLF killed soldiers and looted 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.[91] Three weeks after launching military operations, following the retaking of Mekelle, the Abiy government declared victory.[92] While fighting between Tigray and federal forces persisted, TPLF leaders remained on the run.[93] While designated a terrorist organisation by the Abiy government, the TPLF consider themselves the legitimate regional government of Tigray.[94] In late June 2021, Tigray forces (now rebranded the Tigray Defence Force (TDF)) regrouped and recaptured Mekelle.[95] Abiy has tightened a ‘blockade’ around Tigray, choking the region’s entry points from receiving aid and cutting off power and communications infrastructure.[96] [91] Anadolu News Agency 'Tens of thousands gather in Ethiopia’s capital to condemn Tigray rebels', dated 22 July 2021, Reuters, 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, Al Jazeera 'Ethiopia regions send troops to back fight with Tigray rebels' dated 15 July 2021, BBC News ‘Lalibela: Ethiopia's Tigray rebels take Unesco world heritage town’ dated 5 August 2021, The Australian 'Ethiopia regions send troops to back fight with Tigray rebels', 16 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/In response to Tigrayan offensives, Abiy reversed his ceasefire decision and mobilised militia forces throughout the country’s ethnic regions. 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’.[97] 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[98] that thousands of people have died in the fighting with approximately 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’.[99] A July 2021 report[100] 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,[101] some of which human rights groups such as Amnesty International have labelled ‘crimes against humanity’.[102] 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’.[103][97] Africa Confidential, 'No good options on the table', 22 July 2021, 20210723134934[98] Reuters 'As Tigray war intensifies, Ethiopia parades new army recruits' dated 28 July 2021, The New Humanitarian ‘Aid neutrality under fire in Ethiopia’s widening conflict’ dated 22 July 2021, Sofie Annys et al, Ghent University ‘Tigray: Atlas of the humanitarian situation’, dated July 2021, pp.23, 27 Ibid[102] The New York Times ‘Ethiopia’s War Leads to Ethnic Cleansing in Tigray Region, U.S. Report Says’ dated 26 February 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, type="1">On 7 August 2021, the United Nations reported that fighting in Tigray had pushed 400,000 people into famine-like conditions,[104] 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.[105][104] The Australian, 'Ethiopia threatens to deploy “entire defensive capability” after rebel advances', dated 7 August 2021, 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, 20210811161042Human Rights Watch[106] 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. In 2019 and 2020, violence on 22 University campuses in Oromo and Amhara regions caused approximately 35,000 students to flee.[107] In January 2020, conflict erupted between the Amhara and Oromo groups over the use of the old national flag and decorations during the Orthodox Christian celebration of Epiphany and caused many casualties and loss of property.[108] In what has been viewed as a broadening of the Tigrayan conflict, on 11 August 2021 the OLA leader Kumsa Diriba announced that the group had formed an alliance with the TPLF and that there were plans among opposition groups to establish a ‘grand coalition’ against the government.[109] The coalition with the TPLF has been formed in opposition to the government forces despite the atrocities that were inflicted on Oromo people by the TPLF prior to 2018.[110][106] Human Rights Watch, ‘Ethiopia Events 2020’, Ibid[108] Ibid[109] Associated Press, "Ethiopia Armed Group Says it Has Alliance with Tigray Forces", Anna, Cara, 12 August 2021, IbidIt’s reported[111] that there has been widespread impunity for ongoing rights abuses in Ethiopia’s Oromia region, including in areas already suffering from conflict. It’s reported that many of the abuses persist and require urgent international attention. Affected communities have repeatedly called for credible investigations and redress. Instead, the government arrested thousands of Oromos, many of whom have been left in overcrowded detention sites such as warehouses, police stations, and schools for months without trial.[112] In western Oromia, civilians suffered numerous abuses because of being caught between a government counter-insurgency campaign against the OLA.[113] It’s reported[114] that armed groups have killed minority community members and government officials. In addition, the authorities have sporadically cut communications in western Oromia, including imposing a 3-month shut down in early 2021.Security forces have targeted young Oromos, accusing them of support for or affiliation with the armed group.[115] In May 2021, government security killed a 17-year-old Oromo boy in broad daylight. It’s reported that a culture of impunity for security abuses has only emboldened unaccountable security forces and done nothing to prevent further harm.[116][111] Human Rights Watch, ‘Ethiopia’s Other Conflict’ dated 4 July 2022 by Laetitia Bader, Ibid[113] Ibid[114] Ibid[115] Ibid[116] IbidFrom the country information[117] the Tribunal accepts that the situation in Ethiopia remains dangerous and volatile with considerable inter-ethnic tensions. It is feared by opposition parties that the Abiy government has turned against Oromo leaders, notably arresting Jawar on terrorism charges, and returned to imperial-style domination. The action of the government against the opposing parties appears to have been systematic and discriminatory to maintain control. [117] The Guardian. ‘As Ethiopia’s army declares daily victories, its people are being plunged into violence’ Alex de Waal 24 November 2020 >The Tribunal has taken into consideration the fact that the opposition parties in Ethiopia represent the varying ethnic groups in the country. In the case of the Oromo, the authorities have continued to act against the OLF and OLA. While politically motivated, the actions of the government have the effect of persecuting ethnic Oromo in a systematic and discriminatory manner. As a result, the Tribunal accepts that the applicant’s fear of persecution involves systematic and discriminatory conduct against the ethnic Oromo. Therefore, based on the applicants’ evidence and the available country information, the Tribunal accepts that there is a real chance the applicant will be seriously harmed because of she is an ethnic Oromo if she is returned to Ethiopia.Applicant’s imputed political opinionThe applicant claims that there is a real chance she will be seriously harmed if she is returned to Ethiopia due to her imputed political opinion as a supporter of the OLF.[118] The applicant’s evidence was that her father was an active leader within the Oromo community and active supporter of the OLF. The applicant’s evidence was that her father attended a protest in Addis Ababa in 2005 and was not seen again.[119] The applicant claims that because of the political activities of her father, she will be imputed with the political opinion of being a supporter of the OLF. [118] Applicant’s submissions dated 14 September 2021 @ p.3; AAT File No 2101456, Doc ID:8835420[119] IbidThe country information[120] reports that the OLF was established in 1973 with the purpose of promoting Oromo self-determination. It was one of several armed groups that fought against the government of Mengistu Hailemariam. When Mengistu Hailemariam was overthrown in 1991, the OLF was briefly part of a transitional government led by the Ethiopian People’s Revolutionary Democratic Front (EPRDF) coalition. However, the OLF always had an uneasy relationship with the TPLF, which controlled the EPRDF. As a result, the OLF left the transitional government in 1992 and continued to wage a low-level armed struggle against the government. As a result, it is reported that thousands of OLF fighters, supporters and suspected supporters were arrested and subjected to interrogation, torture and extrajudicial killing by the Ethiopian authorities.[121] In 2010, the UN Committee Against Torture reported its concern over the ongoing and consistent allegations of the use of torture by the police, prison officers and other members of the security forces against alleged supporters of insurgent groups, including the OLF.[122][120] Immigration and Refugee Board of Canada, Ethiopia: The Oromo Liberation Front (OLF), including origin, mandate, leadership, structure, legal status, and membership; treatment of members and supporters by authorities (2014-2015), 7 May 2015, ETH105146.E, available at: Ibid[122] IbidA report by Amnesty International[123] reported that the Oromo people had ‘long been subject to repression based on an imputed opposition to the government.’ It reported[124] that between 2011 and 2014, at least 5,000 Oromos were arrested based on their actual or suspected peaceful opposition to the government. These include thousands of peaceful protestors and hundreds of opposition political party members. It reported that the government, at that time, anticipated a high level of opposition in Oromia, and signs of dissent were sought and regularly suppressed with both actual and suspected dissenters being detained without charge and killed. [123] Amnesty International 'Because I Am Oromo': Sweeping Repression in the Oromia Region of Ethiopia’ dated 24 October 2014. IbidIt is reported that a Human Rights Watch Researcher commented on the treatment of politically active Oromos, who are perceived to be part of the OLF by the government, as follows:[125]In the vast majority of interrogations involving Oromos, there are accusations that they are either members of OLF, or are involved in the Oromo opposition, which many take to mean OLF. There is very rarely any evidence that there is a connection to the OLF, rather anyone who expresses dissent, mobilizes for mainstream politics, or is involved in Oromo cultural associations, are at risk of being associated to the OLF. If you have a family connection from the past to OLF, you are at particular risk. Torture and mistreatment in detention is common among the Oromo, particularly those who have been accused of having connections to the OLF.[125] Human Rights Watch 27 Apr. 2015 Immigration and Refugee Board of Canada, Ethiopia: The Oromo Liberation Front (OLF), including origin, mandate, leadership, structure, legal status, and membership; treatment of members and supporters by authorities (2014-2015), 7 May 2015, ETH105146.E, available at: >The applicant’s evidence to the Tribunal was that she is opposed to the policies of the Ethiopian government and is a supporter for improved conditions for the Oromo people as claimed. For the reasons expressed below, the Tribunal accepts the applicant’s evidence in relation to her political view. Therefore, based on the available country information and the applicant’s oral evidence, the Tribunal accepts that her father was involved with the Oromo community as claimed and that he was a supporter of the OLF. In addition, it accepts that her father disappeared upon attending a protest in 2005 as claimed. The applicant claims that she supports the OLA and that she would not repress her political views upon her return to Ethiopia. The applicant’s evidence was that she was greatly concerned over the condition of the Oromo and that if she was returned to Ethiopia she would advocate for and work towards the goal of self-determination of the Oromo people. Based on the applicant’s evidence, the Tribunal accepts that there is a real chance that she will be seriously harmed by the authorities as a likely supporter or member of the OLA if she was returned to Ethiopia.Applicant’s actual political opinionThe applicant claims that she will be seriously harmed if she is returned to Ethiopia because of her political opinion. The applicant claims that she is opposed to the policies of the Ethiopian government and is an active supporter for improved conditions for the Oromo people. She claims that when she was in Ethiopia, she was an active support of the Blue Party and in Australia is a supporter and volunteer for ‘Advocacy for Oromia.’ It’s reported[126] that the Semayawi Party or Blue Party was established in early 2012. It had a liberal ideology but maintained conservative and nationalist views. Its vision was to see ‘an Ethiopia where all democratic rights are respected, where there is good governance and rule of law which works responsibly and accountably for the fulfillment of the wishes of the people, where economic and social prosperity reigns, that is the pride of its citizens, that contributes its own share to good relations between the world's people.’[127] Many of the leaders of the party were involved in the 2005 protests in which approximately 200 people were killed.[128] In May 2019, the Blue Party merged with other opposition parties, including the Patriotic Ginbot 7, the Ethiopian Democratic Party (EDP) and the All-Ethiopian Democratic Party (AEDP), to form a party known as the Ethiopian Citizens for Social Justice.[129]Canada: Immigration and Refugee Board of Canada, Ethiopia: Semayawi Party (Blue Party), including origin, mandate, leadership. Structure, legal status, and election participation; party membership; treatment of party members and supporters by authorities, 17 October 2014, ETH104974.E, available at: Ibid[128] Ibid[129] E.N.A EraPa Merges with Ethiopian Citizens for Social Justice Party dated 15 July 2019; >The applicant’s evidence was that she had been an active supporter and volunteer with Advocacy in Oromia while in Australia. Advocacy in Oromia[130] is a non-profit organisation established by Oromo volunteers in Australia to enable and empower the disadvantaged Oromo people. Its key functions are to help to improve the settlement process for Australian-Oromos in a number of ways by providing various web-based information, cultural, social and community services. The Tribunal accepts that the applicant has been engaged with Advocacy Oromia as claimed. [130] Advocacy for Oromia website, >The applicant claims that she worked for a company known as Lalibela as a member of the editorial team.[131] The applicant claims that because of her work at Lalibela she was detained on 2 occasions, during which she was assaulted and raped. The applicant did not provide any independent evidence of her working for a company known as Lalibela as claimed. The Tribunal was not able to find any record of the company via an internet search but notes the applicant’s evidence was that the authorities forced the company out of business in or about February 2015. Therefore, based on the applicant’s evidence and the available country information, the Tribunal accepts that while she was working for Lalibela in or about 2010 she was arrested and detained by the authorities for a period of 23 days for publishing articles that had not been authorised by the government. In addition, it accepts the applicant was arrested and detained for a period of 45 days in 2012 for [doing a job task] for a Blue Party public demonstration as claimed.[132] [131] Applicant’s statutory declaration dated 6 May 2022 at para 6-12[132] Applicant’s statutory declaration dated 6 May 2022 at para 19-21However, notwithstanding the fact that the Tribunal has accepted the applicant’s opposition to the Ethiopian government and her political views concerning the independence of the Oromo people, due to the passage of time and the lack of any evidence of continued membership or involvement with the Ethiopian Citizens for Social Justice, the OLF or any other opposition party, the Tribunal does not accept that there is a real chance that she would be seriously harmed on the basis of her actual political opinion if she is returned to Ethiopia.Risk to the applicant as a woman The applicant claims that as a single woman with a child in Ethiopia, there is a real chance she will be seriously harmed. The applicant claims that she was subjected to domestic violence while she was married. If she is returned there is a real chance that she will be seriously harmed by her husband. The country information[133] reports that despite some progress, violence against women and girls is a serious problem in Ethiopia and one that is fuelled by persistent gender-biased attitudes and practices. It’s reported that a 2016 Health and Demographic survey conducted by the Central Statistical Agency of Ethiopia suggested that nearly a third of women aged between 15 and 49 had experienced either physical or sexual violence. At the opening address of a series of National Consultative Workshops conducted by the United Nations Office on Drugs and Crime (UNODC), the Deputy Attorney General, H.E. Ms Fozia Amin, stated that: ‘the prevalence of violence against women and girls is culturally and traditionally entrenched in society and has led to the vulnerability of women and girls to violent acts of crime.’[134] [133] UNODC, ‘Addressing violence against women and girls in Ethiopia’ dated 12 January 2020; IbidIt’s reported[135] that violence against women in Ethiopia is widely acknowledged to be of great concern from a human rights, economic and health perspective. It’s reported[136] that nearly one in 3 married women in Ethiopia faced domestic violence. In addition, divorced women were more likely to experience violence than married women.[137] The DFAT report[138] states that violence against women is widespread in Ethiopia. Typically, it occurs in domestic settings and is a countrywide phenomenon that occurs across all ethnic groups and religions.[139] An Ethiopian Demographic Health Survey from 2016 found that 23 per cent of women aged 15-49 had experienced physical violence, and 10 per cent had experienced sexual violence. A 2018 academic study found almost half of women had experienced gender-based violence in their lifetimes.[140] According to the UNDP, 28 per cent of women aged 15 and older have experienced intimate partner violence.[141] [135] BMC Health, ‘Prevalence of intermate partner violence against women and associated factors in Ethiopia’, dated 7 February 2020 by Ayele Gebeyehu Chernet & Kebadu Tadesse Cherie; Ibid[137] Ibid[138] DFAT report at p.33[139] Ibid[140] Ibid[141] IbidIt’s reported[142] that men widely consider hitting or beating their wives to be justified in certain circumstances, including for burning his meal, arguing, leaving the house without permission, neglecting children, or refusing to have sex. Societal norms and a lack of financial independence mean violence against women is under-reported, and victims generally do not seek legal remedies, particularly in rural areas.[143] [142] Ibid[143] IbidDFAT reports that there are creditable reports of abuses committed by federal and regional police forces ranging from beatings and arbitrary arrest and detention and rape, torture and extra judicial killings. The police force was implicated in extra judicial killing during counter insurgency operations against the Ogaden National Liberation Front (ONLF). While it’s reported that the current federal government has amended the anti-terrorism proclamation with a view to making it more compliant with human rights, it is also reported that concerns remain. Therefore, based on the available country information, the Tribunal finds that the Ethiopian police force does not provide any effective protection in relation to any harm the applicant may suffer because of being a single divorced woman with a child in Ethiopia. While services for gender-based violence exist, including shelters, it’s reported that they are insufficient.[144] Demand for shelters is reportedly increasing, particularly among younger women, but they remain scarce, resulting in many women being turned away. Of the 11 shelters currently in operation, 3 are located in Addis Ababa, and only one in Oromia State (covering a population of over 30 million). There are no shelters in Afar, Gambela and Somali states.[145] [144] Ibid[145] IbidDFAT assesses that women in Ethiopia face a high risk of domestic violence and sexual harassment. Sexual assault, including spousal rape, is common.[146] DFAT assesses support services for women escaping from domestic violence have improved but are insufficient overall.[147][146] Ibid[147] IbidTherefore, based on the available country information and the applicant’s evidence, the Tribunal accepts that there is a real chance she will be seriously harmed as a divorced single woman with a child if she is returned to Ethiopia. 4.3DFAT assesses that the federal government is genuine in its efforts to impose greater accountability and discipline on government forces. Reports of extrajudicial killings by government forces have decreased significantly since April 2018, and DFAT does not consider extrajudicial killings, where they occur, to be systematic or chronic.Enforced or Involuntary Disappearances4.4Ethiopia is not a signatory to the Convention for the Protection of All Persons from Enforced Disappearance. International sources report that some people arrested in connection to anti-government protests in 2014-18 were held incommunicado. Thousands of political prisoners have been released since 2018 (see Political Opinion (Actual or Imputed)). Reports of enforced disappearance have declined under the current federal government.Deaths in Custody4.5There is no reliable publicly available information on deaths in custody in the Ethiopian prison system. The US Department of State and the UK Home Office have previously reported that prison conditions are harsh and, in some cases, life threatening (see Detention and Prison). In September 2016, more than 20 inmates died during a fire at Qilinto Prison, on the outskirts of Addis Ababa. The authorities charged 38 prisoners for causing the fire.DEATH PENALTY4.6Under the Criminal Code, the death penalty applies to a number of serious crimes, including: aggravated murder; terrorism-related offences; espionage; treason; war crimes; and genocide. In 2015, parliament considered two pieces of legislation to extend the list of offences punishable by death to include homosexual acts and people trafficking. Neither bill passed. The Criminal Code prohibits public hanging and other inhuman methods of execution.4.7While it retains the death penalty in law, Ethiopia is de facto abolitionist. The death penalty was last used in 2007, when a military officer was executed for the 2001 killing of Ethiopia’s Chief of Security and Immigration. Prior to this, the last recorded execution was in 1998. DFAT understands 68 prisoners were on death row in 2017. Amnesty International, which monitors executions worldwide, recorded no executions or death sentences in 2019. In December 2018, Ethiopia voted against a UN General Assembly resolution calling for a universal moratorium on the use of the death penalty.TORTURE4.8Article 28 of the constitution defines torture as a crime against humanity and bars the legislature and other state institutions from pardoning or providing amnesty to individuals who commit torture. Article 19 of the constitution stipulates that evidence obtained through coercion is inadmissible. The Criminal Code provides for a fine or imprisonment for public servants who treat detained persons in a manner that is incompatible with human dignity, including physical or mental torture.4.9Despite these legal protections, prior to 2018 the use of torture was widespread in police stations, prisons and other places of detention, both as a form of punishment and for the purpose of obtaining information and extracting confessions from detainees. According to human rights organisations, common methods of torture included beatings, burning, electric shocks, waterboarding, tying prisoners in stress positions, and prolonged periods of solitary confinement. Individuals belonging to groups designated as terrorist organisations and others perceived to oppose the federal government and its policies – including journalists, bloggers and civil society activists – were at particular risk of torture and other ill-treatment.Torture was known to occur at the Federal Police Crime Investigation Sector, a federal police detention facility in Addis Ababa commonly known as Maeke’lawi, and in Jijiga Central Prison (known as Jail Ogaden) in Somali State. Most of those reportedly subjected to torture in Jail Ogaden were suspected of having affiliations to the ONLF.4.10The current federal government has identified the prevention of torture as a core priority. In July 2018, Prime Minister Abiy, in an address to parliament, acknowledged that government forces relied on torture, which he characterised as state terrorism. Abiy has committed to holding perpetrators of torture to account and ending a culture of impunity. In July 2018, the federal attorney-general announced investigations into torture and ill-treatment in detention facilities. Over 60 senior officials were subsequently arrested, including for suspected acts of torture. Their trials were ongoing at the time of publication. The authorities also issued an arrest warrant for Getachew Assefa, the former longtime director of the NISS, for alleged torture, causing deaths during interrogations and detaining members of opposition groups (Assefa has evaded arrest to date). Maeke’lawi was closed in April 2018. Jail Ogaden was closed in September 2018, and some administrators, including the jail’s former head, have been arrested for suspected human rights violations committed under their command. Restrictions on access to detention centres by independent bodies for monitoring purposes have been loosened (see Detention and Prison).4.11DFAT understands that, at the time of publication, the EHRC was not receiving extensive complaints of torture by the authorities. Multiple sources told DFAT they were hearing significantly less frequent claims of torture, including by the police and inside prisons, suggesting the practice is less common today.CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT4.12Article 18 of the constitution affords Ethiopians the right to protection against cruel, inhuman or degrading treatment or punishment. Article 424 of the Criminal Code prohibits treatment of prisoners or suspects ‘in an improper or brutal manner, or in a manner which is incompatible with human dignity’. Such acts are punishable with up to 10 years’ imprisonment.4.13In practice, prisoners have reported incidents of physical punishment. There are credible reports of individuals detained in connection to the 2014-18 protests and/or for suspected affiliations to previously- outlawed opposition groups being mistreated, including being subjected to beatings, overcrowding, extreme heat, lack of water and solitary confinement. The current federal government has committed to addressing such abuses as part of its wide-reaching reform agenda (see Detention and Prison).Arbitrary Arrest and Detention4.14The constitution stipulates that no person may be subject to arbitrary arrest and detained without charge or conviction. Under the Criminal Code, ‘unlawful arrest or detention’ is punishable by up to 10 years’ imprisonment. In practice, before April 2018 critics of the federal government were regularly detained on arbitrary grounds and often held for extended periods without charge. Under the State of Emergency, effective from October 2016-August 2017 and then from February-June 2018, authorities were allowed to arrest and detain individuals without a court warrant and hold detainees for longer than proscribed under normal regulations. According to the US Department of State, security forces went door-to-door after some protests, and arrested and arbitrarily detained opposition party members and supporters, whom they accused of inciting violence.4.15There are fewer reports of arbitrary arrests and detentions since the change in federal government in April 2018 and the lifting of the State of Emergency. Some members of the OLF and the NaMA claim to have been the subject of arbitrary arrest and detention (in connection to the failed June 2019 coup attempt in the case of the NaMA) (see Political Opinion (Actual or Imputed)).4.16In September 2018, security forces detained 3,000 people in Oromia State and Addis Ababa in response to rising criminality. Those arrested included individuals found gambling and – despite not constituting criminal offences– smoking shisha (a tobacco mix smoked in a water pipe) and consuming khat. Most were subsequently released.4.17Successive governments have detained people – primarily youth – for ‘rehabilitation and re- education’ purposes in military-run camps. This includes people involved in the 2014-18 protests. About 1,200 people – detained in connection to the September 2018 unrest in Oromia State that accompanied the return from exile of the OLF – were sent for rehabilitation at a military facility. Most have since completed their rehabilitation and been released. Rehabilitation occurs outside of the judicial process — those undergoing rehabilitation are not charged and prosecuted. Amnesty International reports that rehabilitation processes continued throughout 2019. DFAT understands rehabilitation can last between one and several months, and includes education and physical exercise components. DFAT understands that rehabilitation does not involve torture or other forms of ill-treatment. Those undergoing rehabilitation are released without charge on completion of their program. The authorities claim rehabilitation boosts the employment prospects of those who undergo it and supports national unity.5. OTHER CONSIDERATIONSSTATE PROTECTION5.1Ethiopia has an extensive security and intelligence apparatus, a legacy of its previous political systems. The state exercises control over most of the country, and it has largely been effective in maintaining law and order and protecting the population from major crimes, including terrorism. The security and intelligence apparatus was used in the past to monitor and suppress dissent, and had a history of using force to quell instances of unrest, including large-scale anti-government protests. Prime Minister Abiy has sought to impose greater discipline and accountability on the security forces, including by punishing past wrongdoings, as part of broader efforts to strengthen the professionalism and civilian oversight of the security forces (local sources claim this has had a deterrent effect on government forces). According to the national report it submitted ahead of its most recent UPR (May 2019), the federal government is developing legislation on police use of force and accountability, and plans to establish an independent mechanism to which complaints of ill-treatment by security and law enforcement authorities can be submitted, but this is not yet legislated. Regional state governments are making parallel efforts to reform law enforcement at the state level. A proliferation of ethnic-based militias since 2018 has challenged state authority and eroded the rule of law in some parts of the country, particularly in western Oromia State.5.2Government forces have shown greater restraint toward protesters since April 2018. Local sources told DFAT that non-state actors now posed a greater threat to safety than did government forces. In a report presented to federal parliament in January 2020, the EHRC claimed that human rights violations committed by government forces had declined, with most violations now perpetrated by non-state actors.5.3DFAT assesses that, overall, federal and regional security forces are largely effective at maintaining law and order and in providing protection from threats by non-state actors, particularly in major urban centres. However, DFAT assesses that the emergence of armed, invariably ethnic-based non-state actors has increasingly challenged the state’s monopoly on the use of force and its concomitant ability to provide protection in remote areas and along borders separating Ethiopia’s regional states.Military5.4The Ethiopian National Defence Force (ENDF) comprises an army and air force. Combined, the ENDF has around 180,000 personnel. As a landlocked country, Ethiopia has no naval capacity, although Prime Minister Abiy has initiated steps to re-establish a naval force (Ethiopia’s navy was disbanded following Eritrea’s secession). The ENDF is a capable force, and is one of the largest contributors to UN peacekeeping operations (including to peacekeeping missions in neighbouring countries). The ENDF is occasionally deployed to regional states to support regional security forces restore order during instances of major civil unrest, but generally does not have a major presence at the regional state level.5.5Military service is not routinely compulsory, although the ENDF retains the right to conduct call-ups. A refusal to perform military service can attract a penalty of up to 10 years’ imprisonment under the Criminal Code. The minimum age for military service is 18 years.5.6International partners, including the US, provide funding for a range of training programs for the ENDF, including peacekeeping, professional military education, military training management and counter- terrorism operations. The ENDF is accused of past human rights violations, including the use of excessive force and extrajudicial killings during the 2014-18 protests in Oromia and Amhara states and counter- insurgency operations against the ONLF in Somali State.5.7The military has extensive economic interests through METEC, an industrial conglomerate spanning nearly 100 companies. METEC has been the subject of anti-corruption investigations by the current federal government, and several senior executives, including its former chief executive, Brigadier General Kinfe Dagnew, have been arrested for suspected corruption.Police5.8The Ethiopian Federal Police Force reports to the Ministry of Peace and is subject to parliamentary oversight. It is responsible for preventing and investigating crimes that fall under the jurisdiction of the Federal Court, including terrorism, drug trafficking and human trafficking. In addition, all regional states have their own regional police forces. These are responsible for law and order at the state level and report to their respective state governments. Regional police forces are dominated by the ethnic group that is the majority in the state for which the force is responsible. One local source told DFAT that regional police forces often show favouritism to the ethnic community from which they are predominantly drawn.5.9The Federal Police Force is responsible for coordinating regional police commissions and setting national policing standards, and it provides training and operational support to regional police forces. Some regional states also maintain some form of informal local militias. Militias operate independently, although there is often some degree of coordination with regional and federal government forces.5.10There are credible reports of abuses committed by federal and regional police forces, ranging from beatings and arbitrary arrest and detention to rape, torture and extrajudicial killings, including in the context of the 2014-18 protests in Oromia and Amhara states and counter-insurgency operations against the ONLF in Somali State. The 40,000-strong Liyu Police force was used as a counter-insurgency force against the ONLF, and has been implicated in extrajudicial killings, torture and rape. The Liyu Police are also accused of committing cross-border human rights violations, including in eastern Oromia State and in Somalia. The Liyu Police have been undergoing a reform process since August 2018, and were confined to barracks after the displacement of the previous regional president, Abdi Illey. Following a review of the force, those reintegrated into the Somali regional state police force are required to follow its more human-rights compliant policing practices.5.11Under the State of Emergency, effective from October 2016-August 2017 and then from February- June 2018, federal police had the power to arrest people without a court order under certain circumstances (see 2014-18 Protests and State of Emergency). This power was used extensively. The ATP granted the police similar powers. The current federal government has amended the ATP with a view to making it more human rights-compliant. It has been largely successful but some concerns still remain. The current federal government has also drafted legislation to improve police accountability in relation to the use of force. The draft legislation includes the creation of an independent complaints mechanism to handle complaints of ill- treatment by security and law enforcement officials.Detention and Prison5.24Article 21 of the constitution states that all persons held in custody and imprisoned upon conviction and sentencing have the right to be treated in a way that respects their human dignity. The law prohibits detention in any facility other than an official detention centre.5.25In practice, prison conditions are difficult and fall short of international standards. According to the US Department of State, food, water and sanitation facilities are inadequate. Medical services are also limited, particularly in regional prisons. Overcrowding is a problem in many places of detention. Children are sometimes incarcerated with adults, although male and female prisoners are typically separated.5.26A number of unofficial detention centres were known to operate in the past. Some people arrested in relation to the 2014-18 protests were reportedly held in unofficial places of detention, including military bases, local administration offices and makeshift detention centres in government-owned properties. Mistreatment of prisoners – particularly those imprisoned on political grounds and/or under the ATP – was previously common.5.27The current federal government has taken steps to improve prison conditions, including by cracking down on ill-treatment and torture and improving physical prison infrastructure. To alleviate overcrowding, it is building four new prison facilities, while committing to improving water supply, medical and sanitation services, and amenities in existing prisons. These efforts were ongoing at the time of publication. One local source told DFAT that the cleanliness of prisons, including the availability of sanitation facilities, has improved.5.28Several secret detention centres administered by the NISS have been closed following criminal investigations by the federal Attorney-General. The Maeke’lawi federal police detention facility in Addis Ababa and Jail Ogaden in Somali State, where torture was known to occur, were closed in April and September 2018, respectively (see Torture). Senior officials overseeing prisons where serious violations are alleged to have occurred have been dismissed and detained. DFAT heard that allegations of ill-treatment and torture in places of detention have decreased significantly since April 2018.5.29The current federal government has also loosened restrictions on prison access by monitoring bodies, a right that was previously restricted. The International Committee of the Red Cross (ICRC), Justice for All – Prisons Fellowship of Ethiopia (an NGO), the Office of the Attorney General and the EHRC have access to places of detention across Ethiopia, and conduct regular visits. The Office of the Ombudsman has the authority to investigate prison conditions. The EHRC publishes an annual report on conditions in police stations and prisons.Attachment B - Extract from Migration Act 19585 (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 refugeeFor 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 persecutionFor 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 familyFor 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 familyFor 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 measuresFor 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.…