1824383 (Refugee)

1824383 (Refugee) [2019] AATA 6693 (8 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1824383
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Nicole Burns
DATE:8 October 2019
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 08 October 2019 at 12:23pm
CATCHWORDS
REFUGEE – Protection visa – Ethiopia – Federal Circuit Court remittal – actual and imputed political opinion – past membership and support to the Ethiopian People’s Patriotic Front (EPPF) – mixed ethnicity – Tigray and Eritrean/Tigrinyan – relocation is not a safe option – fear of persecution from the authorities is well-founded – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
MIMA v Respondents S152/2003 (2004) 222 CLR 1

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 Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Ethiopia, applied for the visa on 7 November 2012 and the delegate refused to grant the visa on 20 January 2014. The Tribunal, differently constituted, affirmed the decision of the delegate to refuse to grant the applicant a protection visa on 9 March 2016. The applicant sought judicial review of that decision and the case was remitted to the Tribunal for reconsideration by the Federal Circuit Court [in] July 2018.
The applicant appeared before the Tribunal on 29 August 2019 and 9 September 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The applicant was represented in relation to the review by her registered migration agent. She attended the hearings.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994. An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b) or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and nationality
The applicant last came to Australia [in] August 2012 as the holder of an Ethiopian passport and claims to be a national of Ethiopia. The delegate did not indicate that they had any concerns about the applicant’s claimed nationality. The Tribunal accepts the applicant is a national of Ethiopia and has assessed her protection claims accordingly.
Based on the information before it and the applicant’s oral evidence at hearing, the Tribunal accepts her claims about her background and family composition. That is it accepts she is [an age] woman who was born in [Tigray], Ethiopia. Her father was born in Eritrea and her mother was born in Ethiopia and she is of mixed Tigray and Eritrean (Tigrinya) ethnicity. It accepts that she has [children], one of whom is [adopted]: [some of her children] are still in [Ethiopia]; one of her sons is in [Country 1]; and her daughter is in Australia. The Tribunal accepts that the applicant is married (to her second husband) who remains in Ethiopia and who is the father of her two youngest [children]. The Tribunal also accepts the applicant has two sisters who live in the Tigray region of Ethiopia and a brother who resides in [Country 2], but that she is only in contact with her brother.
Claims and evidence
In summary the applicant claims to fear serious harm by the Ethiopian authorities if she returns to Ethiopia for a number of reasons, including because of her past membership and support to the Ethiopian People’s Patriotic Front (EPPF) – a formerly proscribed armed opposition group who aimed to overthrow the Ethiopian government – and because she would be returning as a failed asylum seeker. She also fears serious harm from the community due to her mixed ethnicity (Tigray and Eritrean/Tigrinyan), and her Orthodox Christian religion. It is submitted that the applicant is particularly vulnerable as someone with complex and chronic mental and physical health issues.
The applicant’s initial claims were set out in a statutory declaration provided to the Department dated 13 December 2012. In that declaration the applicant detailed her and her family members’ experiences in Ethiopia, including allegedly being recruited as a spy by her cousin, [Mr A] who was a member of the EPPF, and events that purportedly occurred after the applicant left Ethiopia. In it she states the following, in summary, about her involvement with the EPPF:
·She joined the EPPF in 2011.
·The EPPF believe in armed struggle and that the government in power can only be overthrown by force. The EPPF has been labelled by the government as a designated terrorist group and is not allowed to operate legally in the country.
·The applicant believes in their cause, particularly as they wish to remove ethnic federations which cause ethnic discrimination, and unite Ethiopia and Eritrea.
·In January 2010, the applicant’s cousin [Mr A], an ethnically Tigray member of the EPPF, requested she help as a spy. She accepted two months later, paid a membership fee of between [amount] Birr or [amount] Birr a month, and was assigned to collate information from her other cousin, [who] worked in the Ethiopian military, and provide this information to the EPPF. She undertook this by pretending to be pro-government, by talking with her cousin, befriending his wife and overhearing conversations inside his family home.
·Aside from being a ‘spy’ the applicant also aided in recruiting new members to the EPPF and provided monetary support, notably selling her jewelry for [amount].
In a written submission dated 14 December 2012 provided to the Department the applicant’s then representative submitted that the applicant has a well-founded fear of persecution on the basis of her actual and imputed political opinion, as a member and supporter of the EPPF, her association with her cousin, who is a member of the EPPF, on the basis of her membership of a particular social group – namely as a person of mixed Eritrean and Ethiopian descent – and as a failed asylum seeker.
The applicant provided a further statutory declaration dated 10 May 2013 to the Department, clarifying her employment history. She also provided a letter to the Department dated 21 October 2012 translated from Amharic to English from [Mr B], Foreign Affairs for EPPF, which states that the applicant has been working as a member of the EPPF from [date] April 2011 until ‘now’.
The applicant provided another statutory declaration to the first Tribunal dated 5 June 2014 in which she provides additional information about, for example, the harm she allegedly experienced in Ethiopia (including arrests and mistreatment in detention – i) in Dire Dawa at the time of the Derg (the official name of the ruling party was Coordinating Committee of the Armed Forces, Police and Territorial Army, which was the government in Ethiopia from 1974 to 1991) when she was around [age] and ii) in Nazret in 1991 (Ethiopian calendar) - which had not been disclosed earlier), her relationship with family members who remain in Ethiopia, and her fears upon return. She clarified aspects of her evidence related to her background, past political activities, her relationship with her cousin ([Mr A]), her ethnicity and her husband’s business in Ethiopia. She states that the word ‘spy’ was incorrectly used in the original statutory declaration and that she was better described as an ‘informer’: helping the EPPF as a member, including by providing any information that might be helpful.
The applicant’s representative provided a submission dated 9 June 2014 to the first Tribunal, which contained a summary of the applicant’s claims, and references to country information where relevant to support the contention that the applicant’s fears are well founded.
Also provided to the first Tribunal was a letter from [an official] of the EPPF Foreign Affairs, dated [date] January 2014 and a verified translation. In it [the official] states, among other things that:
[The applicant] is a member of Ethiopian People Patriotic Front from [date] March 2003[1] up to now; she is supporting the Front in different ways in hidden and she is resisting the harassment and threatening carried by TPLF (WEYANE) and still she is contributing her share as supporter for our Front.
She struggled to stop the increasing persecution and damage on our people by the TPLF (WEYANE) ruling government; therefore, we are requesting for the country she migrated to give her an asylum status.
[1] Ethiopian calendar: the translator did not convert the date to the Gregorian calendar, according to a letter from the applicant’s representative to the Department dated 13 June 2014 on the Departmental file
In a letter to the Department dated 13 June 2014 the applicant’s representative explains that [Mr C] – allegedly a [Australian city 1] based EPPF member – assisted the applicant obtain both EPPF letters and would be appearing at the first Tribunal hearing (which he did).
The applicant provided to the first Tribunal a supplementary statutory declaration dated 7 October 2015 about her (limited) contact with family members overseas.
In a submission dated 16 November 2015 given to the first Tribunal, the applicant’s representative provided background information, and possible ways of corroborating [Mr C]’s evidence at the first Tribunal hearing. The representative submits that the EPPF is now known as ‘Arbegnochginbar’ due to the merger of multiple opposition parties in Ethiopia.
Before the current Tribunal the applicant has provided a further statutory declaration dated 19 July 2019 in which she clarifies aspects of her claims and provides an update about her fears given the changed circumstances in Ethiopia since Prime Minister Abiy Ahmed came to power in April 2018. This included an update about her family members in Ethiopia, including her son, [whom] she claimed has been arrested twice since April 2018.
The representative has provided a detailed written submission to the current Tribunal setting out the applicant’s background, protection claims, current circumstances and her fears if she returns to Ethiopia now particularly in light of recent political changes in Ethiopia since Abiy became Prime Minister and the resultant ethnic divisions and tension, among other things.
At the Tribunal hearing the applicant gave oral evidence about her background, reasons for leaving Ethiopia, and fears about returning there now, summarised where relevant as follows. She told the Tribunal she was born in [the] Tigray region and lived there until she was [age] before moving to Nazret, Oromia region. She moved to Addis Ababa in 1991 (Ethiopian calendar) where she lived with her (second) husband until she last came to Australia in August 2012. Her husband worked in a [business] and used to reside in Addis Ababa and [Town 1]. In Addis Ababa the applicant said she worked from home [doing specified job] and prior to that in a [business] that she owned.
The applicant said she was introduced – and recruited – to the EPPF by her cousin, [Mr A], in around 2010. She was living in Addis Ababa at the time. Over the years [Mr A] had heard her being critical of the government (via other relatives) and one day sent a letter to her with a messenger – a man called [Mr C] – informing her about the EPPF and how they were working to change the allegedly racist government in power, the Ethiopian People’s Revolutionary Democratic Front (EPRDF: a coalition made up of a number of parties, including the Tigray People’s Liberation Front (TPLF)). [Mr A] was in [Country 2] at the time. In his letter he asked her to join the EPPF: she responded that she would think about it.
Sometime later – around January 2011 – the applicant sent a letter to [Mr A], via [Mr C], advising that she wanted to join the group. [Mr C] then delivered a letter to the applicant which contained contact numbers and codes to communicate with [Mr A] about anything she thought was crucial, what people were saying about the party, and if she had any information gleaned from another cousin, who was a [military officer] in the army. The applicant said she would reply using codes: for example if she was relaying information about people being arrested, she would use the word ‘[specified word]’ instead of ‘people’. When asked why she had access to information that was not readily available, the applicant said because she would hear matters from her family members, including her cousin who was a [military officer] in the Ethiopian government.
The applicant said because she was mostly dependent on her husband she was not in a position to make monthly financial donations (usually [amount]) to the EPPF but donated some birr to the group after selling some of her [items]. She attempted to recruit others, mainly by talking to people she was close to in order to gauge if they would be receptive to support the group, but was not successful. No one knew about her support to the EPPF at that time, except for [Mr A] and [Mr C].
The applicant said when she visited Australia in August 2012 she planned to spend time with her daughter and grandchild (who reside here) and then return to Ethiopia, as she had done on two earlier visits. However whilst she was in Australia in around September 2012 her husband and children in Ethiopia were arrested by the authorities whom she suspected had come to know about her past support to the EPPF. Her children were released on the same day they were taken to the police station however her husband was detained and questioned for two days before being released. She has not asked him what the police asked him at the time, because she feels bad and is afraid to speak over the phone about such matters. The applicant said she heard that when the police came to their home and arrested her husband and children, they mentioned [Mr A]’s name: this led her to assume he was also arrested and may have told the authorities about her support to the EPPF, because he was the only person who knew she was involved with the EPPF (along with [Mr C]). No one has heard from [Mr A] since.
According to the applicant’s son the police also found some EPPF material at their home when they were arrested, including letters between the applicant and [Mr A] about the EPPF’s goals, for example. At hearing when asked why she kept such material at her house, the applicant said she thought she had hidden it in a safe [place]. When asked how her son would know what the material was about, given he was unaware of her involvement with the EPPF, the applicant said she asked him to check where the applicant had hidden the material after his arrest: he reported that the material had been taken.
The applicant said after she heard about her family members’ arrest in Ethiopia (via her husband over the telephone) she called an emergency contact number of an EPPF leader (which she had been given earlier) called [Mr B], based in Eritrea. [Mr B] told the applicant that [Mr A] was in trouble, warned her to be careful, and gave her a contact number for an EPPF member in [Australian city 1], [Mr C]. The applicant then met with [Mr C] at a [venue] in [Australian city 1], told him she was in trouble, and he gave her some cash. Sometime later [Mr C] travelled to Asmara and when there obtained letters of support from the EPPF for the applicant, which she submitted to the Department and first Tribunal. He also appeared at the first Tribunal hearing as a witness, as mentioned.
The applicant told the Tribunal that she is afraid of being persecuted on return to Ethiopia in case the authorities know about her past support to the EPPF, that although they are no longer a proscribed group things have not changed on the ground, and in some respects the situation in her country has worsened, in particular for people of her (Tigray) ethnicity, who previously held privileged positions before the new Prime Minister came to power in April 2018.
Findings in relation to the applicant’s core claims: EPPF involvement
The applicant claims to have supported the EPPF – a former armed opposition group based in Asmara (Eritrea) with operations in Ethiopia – from 2010 to 2012, primarily through providing information about relevant government activities and community perceptions (about the group) in Ethiopia to her cousin ([Mr A]), who was then an EPPF member based in [Country 2]. She suspects the authorities discovered her involvement with the EPPF in around September 2012, whilst she was in Australia, after [Mr A]’s arrest and disappearance. She claims her family members were arrested and her husband temporarily detained and questioned not long after [Mr A]’s arrest, and that the police confiscated material from her home implicating her.
Although there is limited country information about the EPPF, reports confirm its earlier existence as an armed opposition group[2] that aimed ‘to bring an end to the TPLF tyranny and oppression through armed struggle and bring about unity, justice, democracy, and equality to the Ethiopian people.’[3] There are reports that indicate that the EPPF was most active in 2006-2007, including in armed attacks against Ethiopian government infrastructure and personnel,[4] although some sources expressed scepticism that the EPPF represented a significant threat.[5]
[2] International Crisis Group 2009, Ethiopia: Ethnic Federalism and Its Discontents, 4 September, p.26. and International Federation for Human Rights 2007, Ongoing arbitrary detention of five leaders of the Ethiopian Teachers’ Association - ETH 001 / 1007 / OBS 133, 23 October, Terrorism Research and Analysis Consortium n.d., Ethiopian People’s Patriotic Front (EPPF), Pham, JP 2007, Ethiopia: Regional Dimensions of the Human Rights and Humanitarian Situation in the “Ogaden,” Somalia, and Beyond - Testimony of Dr J. Peter Pham, United States Congress, 3 October, All Africa, Political handbook of the World 2016-17, Ethiopia: Tom Lansford (editor), CQ Press, an imprint of SAGE, 01 January 2017,p. 497; and Barnes, C 2006, Ethiopia: A Sociopolitical Assessment, Writenet (commissioned by the United Nations High Commissioner for Refugees), May, p.24 type="1">
In January 2015 the EPPF and Ginbot 7 (an armed opposition group that was designated as a terrorist entity by the Ethiopian government in 2011) announced that the two groups would merge and would be collectively known as Arbegnoch Ginbot 7 for Unity and Democracy Movement (AGUDM).[6] In July 2015 the AGUDM claimed to have conducted military action against the Ethiopian army.[7] There are reports of battles between the security forces and AGUDM in Amhara and Tigray in 2016[8] and it was reported that the group significantly stepped up its attacks in June 2017, confronting government forces on several fronts in Amhara region and claiming a rare attack in Addis Ababa on a government ammunition depot.[9] However following reforms announced by the new government under Prime Minister Abiy, the group said it will cease armed attacks in the country.[10] In June 2018, along with other opposition groups in exile, the AGUDM was removed from the national list of terrorist organisations and their leadership has been invited to return to Ethiopia to participate in political discussions, along with other groups.[11]
[6] ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July, ‘Ginbot 7 and EPPF Military Wings Merged’ 2015, TesfaNews, 10 January < Mpuga, D 2015, ‘Ethiopian Opposition Group Threatens Armed Resistance’, Voice of America, 25 July, ‘Tension on Ethiopia-Eritrea border as rebels attack Ethiopian forces’ 2015, EthioSomali, 13 July, and International Crisis Group 2015, Ethiopia: 3 Aug 2015, 3 August, Armed Conflict Location & Event Data Project (ACLED), Conflict Trends (No.55), ‘Real-time analysis of African Political violence’, February 2017, 10 February 2017, p.10,
[9] ACLED, Ethiopia - June 2017 Update,
[10] ‘Ethiopia armed opposition group Ginbot 7 suspends attacks, Al-Jazeera, 22 June 2018,
[11] ‘Democracy in Retreat’, Freedom in the World 2019, (section B), Freedom House, 4 February 2019
The Tribunal has considered the applicant’s claims regarding her introduction to and involvement with the EPPF, and related problems. It has concerns with aspects of her evidence in this respect, for some reasons. This includes due to inconsistencies in some respects between her oral evidence to the current Tribunal about her role and her written claims set out in her initial statutory declaration provided to the Department. For example in that declaration (and before the first Tribunal) the applicant stated that she recruited new members to the EPPF and paid the EPPF a monthly financial donation. However at hearing she said whilst she talked to some friends to gauge whether they may be interested (in supporting the EPPF) she did not recruit anyone, or even pass on names to the EPPF for possible contact: she said it took time, given the risks and whilst she was close she was not successful. She also said she made a once off donation to the EPPF after she sold some [items], not a monthly donation. Although of some concern, the Tribunal is willing to give her the benefit of the doubt in relation to some inconsistencies in an otherwise generally consistent account, taking into account the passage of time and the numerous retelling of her story in oral and written form to the Department and Tribunal. The Tribunal is of the view that the applicant – possibly with the help of her then representative – may have exaggerated her role with the EPPF at the visa application stage, but that does not necessarily mean her claims to have been involved with the EPPF in some capacity are untrue.
Another concern the Tribunal had with the applicant’s claimed support to the EPPF in the past was the fact that she has not been politically active since her arrival in Australia in 2012. This is also inconsistent with the statements made by the authors of the letter provided to the Department and the first Tribunal, allegedly from EPPF representatives, that the applicant was an active member up until the date of those letters. At hearing when asked why that was the case, the applicant said she had met with an EPPF member in Australia – [Mr C] – but nothing more, in large part because of numerous health challenges. It is submitted by the representative that nonetheless the applicant has kept abreast of political developments in Ethiopia, which was evident at hearing. Evidence has also been provided about the applicant’s chronic mental and physical health challenges in Australia. The Tribunal therefore accepts the reasons posited as to why the applicant has not been politically active in Australia.
The Tribunal also found the applicant’s lack of engagement with her husband about her involvement with the EPPF following his arrest and temporary detention in 2012 odd. She told the Tribunal that she has not even told him she was involved with the EPPF and did not ask him what the police asked him about when he was detained. The representative explained the applicant’s reticence to discuss such matters with her husband is because she feels guilty (about implicating him in her problems) and is worried about talking over the phone in case she gets her family members in Ethiopia into further trouble. The representative argued that the applicant clearly has a strong desire not to engage other family members in any meaningful way: because she wants to protect them and is not able to receive any information she would find upsetting. Having traversed these matters at various stages over the course of the hearings the Tribunal is of the view that given what happened to her family members after she left Ethiopia because of her involvement with a then proscribed organisation (unbeknownst to them) she feels bad and has avoided addressing the matter. This is reflected in her fractured relationships with most family members, including her daughter who lives in Australia who remains angry at her mother for being involved with the EPPF and wants little to do with her, even now when the applicant is essentially homeless, having exhausted financial support from the relevant support agencies.
As mentioned earlier, to support her claims to have been involved with the EPPF the applicant has provided two letters, allegedly from EPPF representatives abroad, as well as provided witness evidence to the first Tribunal of [Mr C], allegedly an EPPF member in [Australian city 1] (who was put in contact with the applicant by [Mr B], an Eritrea based member of the EPPF). The first Tribunal’s attempts to verify the authors of the letters and to confirm that [Mr C] was in fact an EPPF member were unsuccessful: specifically an email sent to the address on the first (EPPF) letter was not replied to, which led the first Tribunal member to doubt her claims to have been involved with the EPPF. Before the current Tribunal the representative has argued that there could be a number of reasons why the EPPF did not respond to the Tribunal’s email at the time, including because they may not have been inclined to provide written responses to officials from a foreign tribunal concerning their members or activities, particularly given the EPPF were a designated terrorist group by the Ethiopian government. At the current Tribunal hearing the applicant speculated that it could have been because around that time EPPF were merging with Ginbot 7, and were possibly preoccupied.
Although of some concern, the fact that the first Tribunal did not receive a response to its email seeking confirmation of the applicant’s and [Mr C]’s EPPF involvement (and to confirm the veracity of the letters provided) does not necessarily mean the applicant’s claims in this regard are untrue. There could have been a number of reasons why the EPPF did not respond at the time, including those posited by the applicant and the representative, or simply because they were overburdened administratively. The Tribunal does not draw an adverse inference from the EPPF’s non- response to the first Tribunal’s email requesting the EPPF letters be verified, as well as to confirm that [Mr C] was a member of the EPPF.
The Tribunal gives weight to the existence of two letters confirming the applicant was an EPPF member – even if it considers the authors exaggerated her involvement in Australia for reasons discussed above – as well as the oral testimony of [Mr C], an EPPF member who helped obtain the letters for the applicant based in [Australian city 1] – at the first Tribunal hearing.
Despite these concerns the Tribunal notes that the applicant has consistently claimed to have been involved with the EPPF largely as an informant from around 2010 to 2012, encouraged to join by her cousin and her own personal experiences (including mistreatment at the hands of the ruling EPRDF and the Derg when she was younger). At hearing she presented her evidence in a clear and straightforward manner. The Tribunal traversed the history of her claims in this regard in detail at the hearing in which the applicant’s evidence remained generally consistent, apart from in the ways set out earlier. The Tribunal also observes that, despite some areas of weakness, the applicant generally displayed a spontaneous and detailed familiarity with the EPPF, including how it has evolved and its current status, consistent with her claims, including when questioned about the origin of the group, its aims and methods, as well as her specific role. Although not active in Australia the Tribunal is satisfied this was largely due to chronic health problems and accepts that nonetheless she has kept abreast of developments in Ethiopia and that she did have some limited contact with EPPF via [Mr C] for some time after she came to Australia.
Given these considerations the Tribunal accepts the applicant’s claims to have supported the EPPF from around 2010 to 2012 whilst living in Ethiopia, primarily by passing on information to her cousin who was more senior in the EPPF, then based in [Country 2]. It accepts that not long after she came to Australia in August 2012 to visit her daughter the authorities arrested her husband and children in Addis Ababa, and detained her husband for two days, possibly because [Mr A] had been arrested and he has since disappeared. The Tribunal also accepts the authorities at the time confiscated some EPPF material from the applicant’s house.
The Tribunal notes that the applicant has also given evidence about events that occurred prior to 2012, including discrimination as a result of being considered Eritrean, particularly around the time of the war between Eritrea and Ethiopia, and past imprisonments during the time of the Derg. Although she was reluctant to talk much about these events at hearing, given the trauma associated with doing so, the Tribunal accepts she was imprisoned when she was [age] and again in 1991 (Ethiopian calendar), and raped a number of times by the prison official during the second imprisonment, as detailed in her statutory declaration provided to the first Tribunal, dated 5 June 2014 and her statutory declaration to the Tribunal, as well as the representative’s written submissions. The representative has argued that in both instances the applicant was targeted due to her ethnicity. The Tribunal accepts the applicant was detained as claimed and the second time repeatedly raped by the prison officer, although the Tribunal considers there could have been a number of reasons why she was detained and harmed, not necessarily primarily due to her ethnicity. Nonetheless it accepts that such past experiences contributed to the applicant’s desire to help build a united Ethiopia and specifically try and help overthrow the ruling government – which she considers racist - by supporting the EPPF in 2010.
Well-founded fear of persecution in the future
Given these findings the Tribunal has gone on to consider if the applicant faces a well-founded fear of persecution on return to Ethiopia on imputed political opinion grounds due to her past involvement with the EPPF, among other things.
Despite accepting the applicant’s claims of being involved with the EPPF in the past, and her husband and children being arrested and her husband temporarily detained as a consequence, the following considerations put into question the applicant’s claims that she would face serious harm from the authorities on return to Ethiopia as a result.
a.The applicant at hearing indicated that she is unsure if anyone in Ethiopia actually knows about her involvement with the EPPF. The applicant said to this day she has not told her husband or her children (in Ethiopia) about her involvement with the EPPF. She told her daughter in Australia however it is unclear whether her daughter has told their family members in Ethiopia. Furthermore, it is unclear if the applicant’s husband (and children, initially) were arrested in September 2012 simply because they were related to [Mr A] (via the applicant) or because [Mr A] had informed the authorities about the applicant’s support to the applicant when questioned, which is what the applicant suspects. At hearing when asked if anyone knows of her involvement with the EPPF in Ethiopia the applicant said she does not know.
b.The Tribunal doubts the authorities would have released the applicant’s husband two days after being detained if they actually suspected the applicant was involved with the EPPF, then a proscribed organisation aiming to overthrow the Ethiopian government.
c.The Ethiopian authorities do not appear to have had an ongoing interest in the applicant (or her family) after her husband’s release in September 2012. Although the applicant states in her statutory declaration provided to the Tribunal that she believes her family faced ‘continuing harassment’ from the authorities after the raid and they lived with the related tension for many years, at hearing when asked she did not indicate that they had faced continuing harassment. She mentioned at hearing and in that statutory declaration that her husband had told her he left his [business] in [Town 1] and moved to Nazret because people stopped coming to the [business] after some customers started asking questions about other customers who had been in the security forces and about the applicant. At hearing she said that her husband’s [business] was adversely affected because members of his ethnic group (Werge) and others did not want to use his [business] as often because they felt part of him belongs to those of Tigray ethnicity, like the applicant. At hearing when the Tribunal noted that she was always Tigray, the applicant agreed that it was an ongoing issue but they felt it worsened after she left the country, possibly because people suspected something about her, including because she was away from Ethiopia for so long. The Tribunal accepts that may have been the case but finds it purely speculative that the applicant’s husband’s [business] customers stopped going there because they discovered the applicant was of adverse interest to the authorities, as an EPPF supporter.
d.The fact that the applicant’s daughter (from Australia) and brother (from the [Country 2]) visit Ethiopia with no apparent problems – according to the applicant’s oral evidence at hearing – indicates that they are not afraid to return there as relatives of the applicant, a suspected EPPF supporter, or that the authorities are interested in them, as family members of a suspected EPPF supporter.
At hearing when some of these concerns were raised the representative argued that there are a number of factors in the applicant’s case – [an age] physically and mentally unwell woman, who faces a complex range of interacting risks – which considered cumulatively give rise to a well-founded fear of persecution, including (in summary):
·The applicant’s political history: she is known to the authorities who would have a file or record of her.
·As a failed asylum seeker: in the current context it is unclear who the receiving authorities would be on the applicant’s return given the Ethiopian authorities are not speaking with one voice. The applicant could be processed on her return by someone who has a deep hatred of Tigrayans, for example. The applicant’s subjective fear in this regard is great, given her past persecution on ethnic grounds by the previous regime.
·The applicant is passionate about politics and her life history indicates that she has acted upon her own experiences of persecution, frustration and lack of political opportunities to effect change. In Australia she remains engaged with political affairs and monitors the situation: there is no guarantee that she will not be politically active on return.
·If the applicant’s son is re-detained – for whatever reason – given the pattern of him coming to the authorities’ attention, the applicant would become involved to help secure his release, which might trigger her being targeted and subject to adverse treatment by the authorities immediately or on return if expressing her own political views or engaging with others in the community.
These sentiments were echoed in the representative’s written submission provided to the Tribunal. In it the representative submits that the applicant’s risk of persecution in Ethiopia is for a number of reasons considered cumulatively. These include as a member of an ethnic group (Tigray) which is currently subject to a major backlash by both state and non-state actors and as a mother of two young Tigrayan youths (one who has been arrested twice recently). She contends that it is possible the applicant would come to the authorities’ attention given the current environment and if so her previous history of being jailed and her association with the EPPF is likely to come to light. The applicant is therefore at risk of detention and mistreatment by state actors and in the current climate in Ethiopia, she may also be at risk of state or non-state ethnic violence. Further, the applicant is particularly vulnerable due to her health and age and will be seriously harmed by treatment that may otherwise not meet the threshold of serious harm, she submits.
At hearing the applicant said she thinks the delegate – who refused her visa application – assumed that because she was Tigray and Tigrayans dominated the coalition government in power at the time, she would not be at risk on return: however, things have changed since Abiy became prime minister and according to the applicant nothing is worse than being Tigrayan in Ethiopia nowadays.
The Tribunal accepts the applicant’s past involvement and support to the EPPF which was designated by the Ethiopian government in June 2011 as a terrorist organisation, along with other groups.[12] DFAT in its most recent country information report on Ethiopia assess that people who openly oppose the government face a high risk of being monitored, harassed, arrested and detained as a result of their political opinion, and that all vocal opponents face this risk, including high profile opposition leaders but also otherwise low profile people who attend antigovernment protests.[13] DFAT reported about the large number of people arrested and detained under the 2016 State of Emergency issued in response to increasing frequency and intensity of protests in various parts of the country, and that some detained claimed to have been tortured.[14] Such analysis is reflected in other reports of that period, including from the UK Home Office who reported that if the authorities have already linked a person to a designated terrorist group, principally the OLF (Oromo Liberation Front), ONLF (Ogaden National Liberation Front) or AGUDM, and they have previously been arrested in connection with being a member or sympathising with such a group, or have previously come to the adverse attention of the authorities through activities connected to a group, then they are likely to be at risk of persecution or serious harm on return.[15]
[12] UK Home Office, County Policy and Information note – Ethiopia – Opposition to the government, October 2017, at 2.2.1
[13] DFAT Country Information Report – Ethiopia, 28 September 2017 at 3.34
[14] Ibid at 3.35 – 3.41
[15] UK Home Office, County Policy and Information note, Ethiopia: Opposition to the government, October 2017, at 3.1.1

Since these reports have been published in 2017 there have been significant changes to the political and security environment in Ethiopia, after Prime Minister Abiy took power in April 2018 which heralded a number of reforms and the opening up of political space and unshackling of opposition. This included the removal of certain groups, including the AGUDM, from the government’s list of terrorist organisations and an invitation for its leaders to return to Ethiopia and engage in political discussions.[16] Other positive changes under Abiy’s leadership as reported by the UK Home Office in an August 2019 report on opposition to the government in Ethiopia 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;
·A generally increased tolerance for political dissidents; and
·An end to the State of Emergency.[17]
[16] 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,
[17] UK Home Office, Country Policy and Information Note, Ethiopia: Opposition to the government, August 2019 at 2.4.3
Such country information, combined with the fact that the applicant was last of adverse interest to the authorities in 2012 and there does not appear to have been any further follow up, leads the Tribunal to doubt that she would be at risk of being arrested, detained and mistreated by the central EPRDF government on return to Ethiopia because of her past support to the EPPF in isolation, given the changed political environment since April 2018. However for the following reasons, the Tribunal finds the applicant – on a cumulative basis as submitted – faces more than a remote chance of serious harm on return to Ethiopia for the combined reasons of her imputed or actual political opinion and her (Tigray) ethnicity. In reaching this conclusion the Tribunal has taken into account even more recent country information, which indicates that the political reforms have not been uniformly accepted or adopted by all groups in the country and the loosening of previously authoritarian structures has resulted in significant security issues as various groups, often ethnic-based, have sought to address old grievances and settle scores, explored further below.
For example, Human Rights Watch reported in April 2019 that for many people Ethiopia has become a more dangerous place in the previous 12 months. This is for a number of reasons, including because as political space has opened, Ethiopians have been able to voice historic grievances that have been bottled up for decades under an authoritarian government. It states that many of these grievances relate to access to land and complex questions of identity and governance and that many Ethiopians have settled scores, often along ethnic lines, including by forcibly displacing people from land or engaging in violent conflict with rival groups. This has occurred in many parts of the country amidst a serious security breakdown and a vacuum in local governance.[18] A 2019 report by Chatham House indicates that inter-ethnic violence has resulted in nearly 3 million internally displaced people in Ethiopia and that disputes within and between regional states have worsened. The report states that the deteriorating security situation is partly because Prime Minister Abiy has targeted Ethiopia’s authoritarian security agencies to gain popular support and remove threats to his leadership. However this has resulted in the TPLF and Tigrayans feeling targeted by the government, causing a damaging power vacuum.[19]
[18] ‘Ethiopia: Growing Uncertainty Marks Abiy’s First Year in Power’, Human Rights Watch, 2 April 2019, ‘Can Abiy Ahmed Continue to Remodel Ethiopia’, Chatham House, 12 April 2019, >
A February 2019 report the International Crisis Group (ICG) noted that Ethiopia’s Prime Minister faces daunting challenges due to insecurity having intensified and proliferated across the country, with communal violence tearing at the multi-ethnic fabric of Ethiopian society; regional leaders are demanding more power; a weak economy; and an ‘old guard’ resistant to reform. The report noted further that communal violence has spread with intensity unprecedented in the past quarter-century, ethnic militias are proliferating and regional leaders are jostling for greater autonomy, often under pressure from ethnic hardliners.[20]
[20] ‘Managing Ethiopia’s Unsettled Transition’, International Crisis group, 21 February 2019, >
Country information, including that referred to by the representative in her written submissions to the Tribunal indicates that there has been a backlash in some respects against Tigrayans, who have long dominated the EPRDF. ICG in its February 2019 report state that ethnic violence in Ethiopia has escalated in tandem with protests, stating as follows:
A parallel protest wave began in Amhara regional state in mid-2016. As in Oromia, the initial grievances mostly concerned land – namely, the incorporation into Tigray regional state of historically Amhara-populated lands. They also included resentment of Tigrayan domination and neglect. In both Oromia and Amhara, some local elites and elements of the regional security forces sympathised with the protesters. For the first time, the grievances of the Amhara and Oromo – the two largest ethnic groups in Ethiopia – converged on direct rejection of the TPLF-led federal government and its repressive methods.[21]
...
Ethnic violence escalated in tandem with the protests. Tensions between Oromo and ethnic Somalis turned lethal in Oromia and Somali regional states, especially along the disputed border between the two. Allegedly, the federal government used the Liyu police – a paramilitary ethnic Somali militia controlled by the Somali regional state president, Abdi Iley – to quash dissent in Oromia. Oromo militias, for their part, attacked Somali villages, purportedly with the support of Oromia’s security forces. Meanwhile, in parts of Amhara region, locals attacked Tigrayan neighbours. Many families fled, fearing deadlier attacks. Though not unprecedented, the scale of communal violence and internal displacement was shocking. The government’s initial response – at both the federal and regional levels – lacked purpose and urgency.[22]
[21]‘Managing Ethiopia’s Unsettled Transition’, International Crisis Group, 21 February 2019,p.4 [footnotes omitted],
[22] ‘Managing Ethiopia’s Unsettled Transition’, International Crisis Group, 21 February 2019,p.5 [footnotes omitted],
ICG report that communal tensions have grown acute with local majority groups targeting minorities. This includes Tigrayans being forced out of entire areas of Amhara and communal violence occurring including between regions of Amhara between Amhara and Tigrayan communities. They state that the intra- and inter-ethnic violence is driven by many factors, ‘including historic and personal grievances, access to land, the desire for self-determination and the manipulation of those grievances for political purposes’.[23] In addition to conflict in the regions, ICG reported that unrest also occurred in the capital in September 2018 which left at least 58 people dead. They assess in that report that one of Prime Minister Abiy’s key challenges is to ‘find a way to address the sense of alienation, anger and humiliation among supporters of the once dominant TPLF in whose home region, perhaps uniquely across Ethiopia, opposition to his rule (fed by perceptions that Tigrayans have been singled out for purges by authorities and displacement by members of other ethnic groups) seems deeply and widely felt’.[24]
[23] Ibid
[24] Ibid
Since ICG’s February 2019 report there has been further instability in Ethiopia including following the assassination of the president of one of Ethiopia’s regional states (Amhara), and the Ethiopian military’s chief of staff on 22 June 2019. In a related briefing ICG warn of rising ethno-nationalism and potential flashpoints in the lead up to the May 2020 elections. Particularly concerning, according to the ICG analysis, is friction between the Tigray and Amharas. They also identified another fault line – between the TPLF – which rules Tigray, and until last year had long dominated the EPRDF and the security apparatus – and the federal government led by Abiy, the head of the Oromo Democratic Party.[25]
[25] ‘Preventing Further Conflict and Fragmentation in Ethiopia’, International Crisis Group Commentary/Africa, 19 July 2019
In her statutory declaration provided to the Tribunal dated 19 July 2019 the applicant states that the security situation in Ethiopia has become even more unstable and unsafe since the military coup attempt on 22 June 2019 and that she (and her family members) are at particular risk because of their ethnic backgrounds. She states that Tigrayan military generals are among those confirmed dead and possibly other senior officials were killed; other high ranking officials from other regions have been targeted; and she fears this is just one event causing the country to slide into a ‘big conflict’ which the government cannot contain. She adds further that grassroots pressure comes from those who feel Tigrayans were responsible for their repression over decades, which cannot be controlled: this is why she considers herself and her family members are in a particularly vulnerable position.
The Tribunal acknowledges there is speculation to some degree in the analysis contained within these reports about how the situation in Ethiopia might evolve. Nonetheless it is clearly complex, volatile and at this stage indicates that the government has little control over many competing forces. This limits the capacity of individuals to freely and actively express their political opinions without fear in doing so. The Tribunal accepts that in such an environment those who seek to play an active role in political discourse may be at risk from those who feel threatened by their agenda.
In the applicant’s case, whilst the Tribunal accepts that she was involved with the EPPF in the past, and the authorities may have come to know that fact given it accepts they arrested and temporarily detained her husband in 2012 (following [Mr A]’s arrest), and confiscated EPPF material from her home, there does not appear to have been any further follow up. Furthermore, the applicant’s political activities in Australia over the past seven years have been almost non-existent. Her daughter and brother regularly return to Ethiopia, which indicates they are not particularly concerned about being implicated with the applicant. Groups such as the AGUDM have been removed from the Ethiopian government’s terrorism list and their leaders have been encouraged to return to Ethiopia to be involved in the political process. At hearing the applicant agreed there have been such changes but said huge racial tension between Tigray and the current government is isolating Tigray including by stopping basic supplies into the region, and overall things are getting worse. She said she would be in trouble because of her ethnicity and previous involvement with EPPF (which was not known before she left Ethiopia in August 2012).
Nonetheless, when considering the applicant’s past history and circumstances on a cumulative basis, combined with country information indicating a volatile environment in Ethiopia spilling over into ethnic divisions and violence, among other things, as set out above, the Tribunal is satisfied that she faces more than a remote chance of serious harm on return there in the foreseeable future. The Tribunal has accepted the applicant has a past history of activism in Ethiopia, was imprisoned twice (and raped whilst incarcerated the second time) when younger, which informed her sense of grievance against the dominant Ethiopian ruling party at the time. The Tribunal accepts such personal experience, combined with her desire to see Ethiopia united not divided along ethnic lines led her to make the risky decision to covertly support the EPPF from 2010 in 2012 in Ethiopia. Whilst not certain, it is possible the government now knows about her support to the EPPF, given it accepts they confiscated EPPF material from her home when they arrested and detained her husband, after the alleged arrest of her cousin, a more prominent member of the EPPF, in September 2012. Although the applicant has not been politically active in Australia, the Tribunal accepts that has been in large part due to her health constraints and breakdown of her relationships with various family members, including her daughter here. It accepts that nonetheless she has maintained some (limited) contact with EPPF members abroad and has kept abreast of political developments in Ethiopia. Having questioned the applicant at length at hearing about her political viewpoints, it accepts that she is opposed to the dominance of the EPRDF and federalism and she wants ethnic unity in Ethiopia. When asked if she would be politically active in any way on return to Ethiopia, the applicant said she does not want to given there is no freedom or liberty to do so there.
Taking into account these considerations and the evidence before it, the Tribunal accepts the applicant would be politically active on return to Ethiopia if it were not for fear of doing so (if healthy enough): not necessarily with an armed opposition group as in the past, given the changed political environment among other things, but the Tribunal is satisfied that her sense of grievance and desire to change matters politically remains. If she does become politically active in some capacity in opposition to the government on return, given the highly charged politically environment, it is not far-fetched that she may be questioned by the authorities: if so, her past support to the EPPF – a (then) proscribed organisation – is likely to be revealed. In such a context and given the country information, the Tribunal cannot rule out that if the authorities suspect a person was involved with such banned opposition groups in the past and remains politically active, they will not face persecution, even if the group is no longer proscribed and the overall environment for political dissent has improved. This is particularly so given the current volatility and country information that indicates that in swaths of the county the military manages security.[26] As well, whilst there is talk about amending Ethiopia’s anti-terrorism laws, which the government has relied on in the past to arrest, detain and prosecute opposition members (and journalists), this does not yet appear to have taken place.[27]
[26] ‘Rushing to the ballot box’, Africa confidential, Vol 60 No 19, 27 September 2019
[27] UK Home Office, Country Policy and Information Note, Ethiopia: Opposition to the government, August 2019 at 10.2
An additional risk in the applicant’s case in the current environment in Ethiopia is her Tigrayan ethnicity. Country information including that set out above (and that provided by the representative) indicates that Tigrayans have been targeted in inter-ethnic violence and as a backlash against their perceived privilege position politically. Whilst much of the inter-ethnic violence has occurred in the regions, and is driven by many factors including access to land, unrest has occurred in the capital in late 2018 with deadly consequences.
The applicant claims in her statutory declaration to the Tribunal that her son [was] arrested in September 2018, around five months after the change of government, along with a group of youth in Addis Ababa protesting against the push by Oromo’s to take over the capital. He was arrested along with other youths who were not Oromo, detained for around a month then released. He was arrested a second time [in] June 2019 along with a large group of men and held for two days: during that time he was physically assaulted. The Tribunal accepts her claims in this regard and whilst it is unclear whether her son was specifically targeted due to his ethnicity (including part Tigrayan) the Tribunal accepts such events reflect the precarious situation throughout Ethiopia, including the capital.
Given such considerations including country information and what the Tribunal accepts about the applicant’s circumstances and past experiences, the Tribunal finds that the chance that the applicant would suffer serious harm in Ethiopia as a consequence of her political views and past political protest activity, and her Tigray ethnicity (race), is real, not remote. Accordingly, the Tribunal finds that there is a real chance that the applicant would suffer treatment amounting to persecution involving serious harm due to her actual and imputed political opinion and her race, from the authorities and/or the community, should she return to Ethiopia.
The Tribunal is satisfied that the real chance of serious harm the applicant will face if she returns to Ethiopia will be a result of systematic and discriminatory conduct in that it will be done to her selectively and intentionally for the essential and significant reasons of her actual or imputed political opinion and her ethnicity (Tigray).
Given this finding, the Tribunal has considered if state protection would be available in the applicant’s case. DFAT advises that the Ethiopian government maintains an extensive security and intelligence regime which can be used to monitor and suppress dissent, and that security forces have used disproportionate violence against protesters with impunity.[28] While more recent country information indicates a lessening of authoritarian control and greater respect for human rights on the part of the central government, the Tribunal considers it is clear that some regional governments are maintaining a strong authoritarian approach, the central government is struggling to deal with inter-ethnic violence that has resulted in the displacement of nearly three million people across Ethiopia, and that security forces are continuing to undertake arbitrary arrests in response to demonstrations and protest activity.[29] Given this country information and against this background, the Tribunal is not satisfied that the state of Ethiopia can meet the level of protection which citizens are entitled to expect as discussed in MIMA v Respondents S152/2003 (2004) 222 CLR 1. It follows that the Tribunal finds that the applicant faces a real chance of persecution for reasons of her actual or imputed political opinion and her ethnicity if she returns to Addis Ababa now or in the reasonably foreseeable future.
[28] DFAT Country Information Report, Ethiopia, 28 September 2017, section 5.1
[29] ‘Thousands are arrested in Ethiopia After Ethnic Violence’, The New York Times, 24 September 2018, type="1">
The Tribunal has gone on to consider if the applicant could safely and reasonably relocate to an area outside Addis Ababa to avoid the serious harm she fears from the authorities and the community there on political opinion grounds and for reasons of her ethnicity. In her statutory declaration to the Tribunal the applicant states that it is unsafe for Tigrayans in Addis Ababa (and other parts of the country) where they are subject to hate crimes by those wanting to take revenge.
In the circumstances of this case, where the harm feared includes harm from state actors and individuals who are aligned with the ruling party, as well as from other political players (including ethnic-based parties) and inter-ethnic violence the government is struggling to control, the Tribunal finds that relocation is not a safe option for the applicant.
For these reasons the Tribunal finds the applicant faces a well-founded fear of persecution from the authorities on return to Ethiopia on account of her (imputed) political opinion and ethnicity.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nicole Burns
Member

Yohannes Gedamu, ‘Abiy’s year one: Ethiopia faces the threat of ethnic violence’, Al Jazeera, 2 April 2019, reportedly arrested activists in the capital Addis Ababa’, Borkena, 19 September 2018, Arrests perplex Addis Ababa Residents as City Police Say it is Conducting Crackdown on Rising Crime’, Addis Standard, 24 September 2018,

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1824383 (Refugee) [2019] AATA 6693

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MIMA v Respondents S152/2003 [2004] HCA 18

[2019] AATA 6693

8 October 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing