1824422 (Refugee)

1824422 (Refugee) [2023] AATA 2524 (19 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Rebecca Ann Webb
CASE NUMBER:  1824422
COUNTRY OF REFERENCE:                   Eritrea
MEMBER:Justin Meyer
DATE:19 May 2023
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 19 May 2023 at 2:09pm
CATCHWORDS
REFUGEE – protection visa – Eritrea – imputed political opinion – membership of particular social group – victim of sexual assault – Draft evaders/deserters – women who have fled national service – single/divorced women in Eritrea – effective protection measures are not available to the applicant – health issues – applicant has a well-founded fear of persecution– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 36, 65, 91R, 438
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs 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 Eritrea, applied for the visa on 1 May 2014 and the delegate refused to grant the visa on 16 August 2018.
The applicant appeared before the Tribunal on 11 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigre and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, 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 has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Having noted the applicant’s claims about mental trauma, violence, (including sexual violence) over years, The Tribunal utilised the Tribunal’s guidelines on vulnerable persons and created an open, reassuring and supportive environment in order to establish a relationship of confidence and trust between the member and the applicant and facilitated the full disclosure of sensitive and personal information. The Tribunal was at pains to avoid unnecessary re-agitation of claimed traumatic experiences, while still fulfilling its obligation to test evidence.
The issues in this case are whether the applicant has a well-founded fear of being persecuted in Eritrea for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Eritrea there is a real risk that she will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
Identity
The applicant’s identity is established as a [age]-year-old female, as evidenced by an Eritrean ID card which the Department analysed and found to be genuine. Thus, there is evidence before the Department and the Tribunal confirming identity and nationality.
Claims and evidence
In her application to the department, the applicant claimed as follows:
·The applicant fears that if she returns to Eritrea h will be arrested, put in prison, tortured, raped or even killed.
·The last time she was in Eritrea, she refused to undertake national service and she escaped prison and fled to [Country 1] as a refugee. As a result, she fears the authorities would target her.
·She does not have the right to reside in [Country 1]. The [Country 1] passport on which she travelled to Australia was issued after her employer paid money to obtain it. It is not safe for her to return to [Country 1] because she was wanted by the authorities on account of having escaped from the refugee camp in [Country 1]. It is too dangerous for the applicant to live in a refugee camp in [Country 1].
The applicant also made a detailed declaration about her life and departure from Eritrea in her visa application on 29 April 2014. It explains her origins and family life and does this clearly.
The claims in the hearing were as follows:
·The applicant escaped prison before leaving the country. She has an imputed political opinion. She went back to Eritrea after fleeing to [Country 1] because she thought the situation would be improved. She had departed illegally.
·When she and her husband broke up the children were taken by the father so she returned to Eritrea. She has no relatives in Eritrea remaining. She has children in Australia. It forced to return she did not know where she would go. No one would welcome her there. She said she would be arrested. She said she would be imprisoned and could be fined. She said she did not think that she would be able to live and would be arrested.
·She was not sure that at her age whether she would be made to do national service. But she could be taken away anyway, not to go into the military, but instead would be forced to do things such as prepare food. This is required.
·If one family member avoids national service, they can punish the rest of the family.
·I asked the applicant to think about her physical health and psychological health and how they would be affected by being forced to do national service style work such as food preparation. She said she could not do it and that if she was forced to she would die. She suffers from high blood pressure, and an ‘eye and nose allergy’, and a stomach problem which led to vomiting all the time. She has appointments at [the] Hospital for this. The doctors at this stage could not diagnose her issue. She could not attend the previous Tribunal scheduled hearing because she had a cough and allergy. She takes two to six Panadols per day. She can get headaches when it is hot. When the weather is cold she gets leg and back pain. She can only do limited work around the house such as preparing her own food. She has type 2 diabetes and needs to take tablets.
·The applicant said she knew a lady whose daughter is still in Eritrea and her son is forced to do military service. He was later arrested.
·Her sister was in Eritrea but she died there after a period of ill-health. The connection of a friend was kidnapped and kidnappers asked for a ransom.
·The applicant described an incident in [Country 1] where she stated that she was raped.
·The applicant said she would not be exempted from national service because she had children. That was because she is divorced and the children were no longer with her.
·I asked how she escaped prison when she was there. She said she found somebody who knew her and was released after being told that a vehicle would take her away to [Country 1]. She had been detained in a very big room with many females.
·Although she had previously been receiving assistance from an agency for English training, employment services, community engagement and settlement support to migrants and refugees, she no longer had any help with her medicines and pays AUD40 for them. There are tablets and drops for her eyes and for high blood pressure. She needed to take tablets were her stomach problem and also needs Panadol.
Applicant’s written submission
The representative made a written submission on 4 October 2022 in these terms (edited for relevance):
·     The applicant travelled to Australia on a Contributory Parent visa on [date] February 2013. The applicant held Eritrean citizenship and does not have the right to reside in any other country.
·     The applicant’s claims for protection are summarised in a statement dated 29 April 2014.
·     The applicant was required to attend identity interviews with the Department of Home Affairs on 26 September 2014 and 5 April 2017. Submissions as to her identity were made on her behalf on 3 December 2014 and ultimately, the Department made a determination that, consistent with [Ms A]’s evidence, she is an Eritrean citizen born in [year].
·     The applicant provided further evidence of her claims for protection at an interview on 2 October 2017.
·     It is submitted that there is a real and substantial risk that the applicant would suffer persecution within the meaning of s 91R(1) of the Act now and in the reasonably foreseeable future in Eritrea. We further submit that her individual fears of persecution in Eritrea are well-founded and on this basis we propose that s.36(2)(a) is applicable to her circumstances.
·     Without conceding the strength of her claims for s.36(2)(a), it is further submitted in addition and in the alternative that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal to Eritrea, there is a real risk that the applicant would suffer significant harm, as exhaustively defined in s.36(2A), for the purposes of s.36(2)(aa).
·     We submit that [Ms A] fears the following sources of persecution directed at her at the hands of Eritrean authorities, its agents and associates:
• direct targeted serious harm (including threats to her life or liberty, death and significant physical harassment and ill-treatment);
• direct and indirect threats to her life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats)6
• direct targeted serious harm (including threats to her life or liberty, death and significant physical harassment and ill-treatment) for non-Convention reasons but where the Eritrean authorities may discriminatorily withhold protection:
• direct and indirect threats to her life or liberty communicated to the applicant amounting to serious harm (that is, separate and distinct from any harm that may follow those threats)9 by authorities and the community where Eritrean authorities discriminatorily withhold protection because of her gender.
• ongoing cumulative serious discrimination that causes her significant economic hardship that threatens his capacity to subsist and denies her the capacity to earn a livelihood of any kind, where that denial threatens his capacity to subsist11
·     We submit that [Ms A] is at risk of the above-mentioned persecution by reason of, either cumulatively or separately:
a. Her actual and imputed political opinion; and
b. Her membership of a particular social group, namely:
i. Draft evaders/deserters;
ii. Women who have fled national service;
iii. Women fleeing Eritrea illegally;
iv. Failed asylum seekers returning to Eritrea;
v.Single/divorced women in Eritrea.
·     Without negating the strength of [Ms A] ’s claimsunders.36(2)(a),in addition and in the alternative, we submit for the purposesofs.36(2)(aa) the applicant is at a more than remote risk of suffering the following instances of significant harm as a necessary and foreseeable consequence of being returned to Eritrea:
• arbitrary deprivation of life by Eritrean authorities; and/or
• torture at the hands of Eritrean authorities; and/or
• cruel or inhuman treatment or punishment and degrading treatment or punishment by Eritrean authorities;
·     Further to the above, for the purposes other claims unders.36(2)(a), even if protection would not be withheld for a Convention reason, we also submit that current country information confirms that the Eritrean state is unable to offer a level of state protection comparable with 'international standards 'for the purposes of the second limb of Article1A(2) of the Refugees Convention (and s.36(2)(a)).
·     Without conceding the strength other claims for s.36(2)(a),it also submitted for s.36(2)(aa) and s.36(2B)(b),the level of state protection that would be offered to the applicant in her circumstances by Eritrean authorities would not be of a sufficient standard such that there would not be a real risk that she would suffer significant harm.
·     For the reasons below we further submit that there is a more than remote risk (that is, a real risk/chance) of persecution now or in the reasonably foreseeable future, and in the alternative, significant harm, for the applicant in al lparts of Eritrea. Despite this submission, we respectfully provide that, in all of the applicant’s personal circumstances, it would not be reasonable for her to relocate to another area of Eritrea, including that she be expected to remain in that specified location indefinitely.
·     For the purposes of the client’s claims in the alternative to meet s.36(2)(aa), we submit that s.36(2B)(c) does not apply in her circumstances as the risk of harm she faces is particular to her and would not be attributable to his membership of the population generally.
·     We submit that country information corroborates [Ms A] ’s claims and indicates that the risk of her suffering the above types of harm now or in the reasonably foreseeable future, or as a necessary and foreseeable consequence of her removal to Eritrea, could not be described as being remote, far-fetched or fanciful. We also refer the Tribunal to the country information cited below. On this basis it is submitted that there is a real chance now or in the reasonably foreseeable future, and in the alternative a real risk as a necessary and foreseeable consequence of her removal to Eritrea, that she would suffer this harm.
·      Accordingly, we submit that based on the country information available and the applicant’s evidence that [Ms A] meets s.36(2)(a), and in the alternative, s.36(2)(aa).
Updated information
·     We are instructed that since her protection visa interview, [Ms A] ’s sister in Eritrea has passed away. While [Ms A] instructs that she has two nieces residing in Eritrea, she has not been in in contact with them since her brother, who also resided in Australia, passed away.
·     [Ms A] instructs that she continues to receive treatment for various health issues including diabetes, high blood pressure and that she requires medication for her eyes. She further instructs that she now also takes medication to assist with her breathing. [Ms A] continues to experiences issues with her memory however does not currently access any counselling or formal psychological support.
Issues arising from the decision of the Department of Home Affairs;
Incorrect application of law;
·     The Department assessed [Ms A] ’s claims for protection with reference to s5H of the Migration Act.
·     [Ms A] submitted her application for protection on 29 April 2014.
·     As [Ms A] ’s application was submitted prior to changes to the legislation which took effect on 16 December 2014, s 5H is not applicable to the assessment of her application. As such, this application should be assessed with reference to the Refugee Convention and Protocol and specifically article 1A.
·     We request that [Ms A]’s application be assessed with reference to the relevant law at the time that her application was submitted.
3.2 UNHCR assessment;
·     The Department decision notes that [Ms A] was recognised as a refugee by UNHCR Egypt in 2006, as confirmed to the Department independently by UNHCR.
·     Despite this, the Delegate failed to consider this assessment in its decision. We note the Department’s policy for applicant’s assessed as refugees by UNHCR at the time of [Ms A]’s application noted:
·     If the UNHCR has previously issued a certificate mandating the person to be a refugee, this should be taken into account in the determination process; though it is not binding on POE officers. The UNHCR mandate status certificate will lend significant weight to a person’s protection claims and any non-refoulement concerns.Similarly, current Departmental policy (and policy at the time of decision) notes ‘If the applicant is a UNHCR mandated refugee, this should be taken into account and given appropriate weight in the consideration of their claims.’
·     We further note that the situation in Eritrea has not significantly changed since [Ms A] fled:
·     Eritrea is a highly centralized, authoritarian regime under the control of President Isaias Afwerki. A constitution drafted in 1997 was never implemented. The People’s Front for Democracy and Justice, headed by the president, is the sole political party. There have been no national-level elections since an independence referendum in 1993.
·     In our submission, the UNHCR assessment in relation to [Ms A]’s refugee claim is directly relevant to the current application and should have been afforded significant weight in assessing her claims for protection and refugee status.
Factual errors
·     The Delegate misunderstood aspects of [Ms A]’s claims as set out in her statutory declaration and her evidence at interview.
·     Specifically, [Ms A] stated that she cared for her father, in [Country 1] before returning to Eritrea after he died. The Delegate clearly misread the following paragraphs from [Ms A]’s statement, despite directly referencing paragraph 28 in her decision:
“After I was separated from my children I became very sick and I was hospitalised in [Country 1] because of the shock. At this time, my father was also very sick so I went to stay with him for a while, until he passed away. After my father passed away, I decided to return to my country. I hoped that things would be better if I returned to Eritrea.”
·     On the basis of this incorrect understanding of the facts, the Delegate reached adverse findings about [Ms A]’s credibility including that it was not possible she could have been apprehended by authorities for failing to complete her national service at the time that she said she was. This factual error forms a significant part of the Delegate’s reasoning.
·     The Delegate also referred to several visa applications submitted on behalf of [Ms A] since 1998. In particular, the Delegate referred to a spouse visa application submitted in 1999 and noted that this application indicated that the applicant’s father was already deceased.
·     Despite seeking release of all of [Ms A]’s immigration records in 2014, a copy of this application was never provided to us by the Department. We note however that based on the information outlined in the Department’s decision, this application was submitted after [Ms A] separated from and divorced her husband.
·     In our submission, the contents of an application submitted on [Ms A]’s behalf in 1999 cannot be relied on as evidence to counter the accuracy of her current protection claims, particularly where such information has not been put to the applicant for comment. We note that the Delegate did not discuss this application or the applicant’s knowledge of its contents with her during her interview nor did the Delegate query why the applicant would have sought to migrate as a spouse years after her relationship had broken down.
·     [Ms A] instructs that any visa applications that were submitted were made on her behalf, she believes by her ex-husband and children. She further instructs that she was not aware of the information contained in these applications or whether there was any error in the information that was provided.
·     In our submission, the fact that [Ms A] registered and was found to be a refugee by UNCHR and sought to apply for two humanitarian applications offshore followed by an onshore protection visa application is more probative evidence of the veracity of her claims for protection than a spouse visa application which was prepared on her behalf and arguably, against her wishes.
3.4 Failure to consider relevant information
·     It is our submission that the Delegate disregarded relevant and significant aspects of country of origin information that was before her and reached conclusions that were simply not supported by the country of origin information referenced.
The upper age limit for national service
·     The Delegate relied on a Landinfo report from 2016 to support her assessment that the actual age limit for in the national service was between 25 and 27 years old and therefore, that [Ms A], who was approximately [age] years old in 2003-2004 would not have been required to complete national service nor apprehended for evading national service.
·     In reaching her assessment, the Delegate failed to consider country of origin information contained both in the Landinfo report and in other country of origin information available at the time that was directly relevant to the period in which [Ms A] was in Eritrea. In addition, the Delegate failed to consider the initial chapter 1 of the Landinfo report itself, noting difficulties in the reliability of information about the factual situation in Eritrea.
·     The Landinfo report referenced by the Delegate provides information supporting [Ms A]’s claims indicating that at certain times, people between 18-50 years old can be mobilized and significantly notes:
·     From the summer 2002 more and more Eritreans began to evade national service, and the authorities began using stronger measures. Military police visited private homes, job locations and social gathering places in search of recruits (diplomatic source (1), email 2002; Müller 2008). Even women were taken by force.
·     In our submission, it is apparent that the national service regime in Eritrea is opaque and arbitrary. Without clear and consistently applied rules, there is no way of determining the normal length of national service, nor is it possible to ascertain a clear upper age limit for conscription. For example, Amnesty International have noted that the unwritten exemption for married women and mothers is arbitrarily applied, with some female interviewees forced to continue in the national service after marriage.
·     Amnesty International also noted reports of older women, including women with children, being conscripted. In Gash Barkain 2015, all women between 18 to 45 had to report for national service.
·     Similarly, a 2016 decision, the UK Upper Tribunal carefully considered available country information and estimated that the upper age limit for national service in Eritrea is 54 for men and 47 for women. The National Service Proclamation of 1995 itself states that all Eritrean citizens between 18 and 50 are required to take part in national service. For the Peoples’ Militia, the upper age limits appear to be around 60 for women and 70 for men.
·     In our submission, neither the facts nor available country of origin information at the time that the Delegate reached her decision support the finding that [Ms A] would have been over the age limit for national service or that she would have been considered a woman with children and therefore, ineligible. In our submission, [Ms A]’s evidence is entirely consistent with country of origin information which supports her claims about the ongoing risk should she return to Eritrea.
The treatment of relatives of deserters
The Delegate doubted the fact that Eritrean authorities had visited the applicant’s sister to ask about her whereabouts. On the Delegate’s assessment, this part of the applicant’s account was implausible, as in 2005 the authorities had started fining the relatives of deserters 50,000 nakfa and, in some cases, imposing prison sentences on relatives.
We note that by 2006, [Ms A] had registered and been recognised as a refugee in Egypt so must have fled Eritrea and national service sometime well before that time, most likely before 2005.In our submission, practices that commenced in 2005 are of limited relevance to [Ms A]’s claims.
In addition to this, relevant country of origin information suggests that any policy relating to the relatives of deserters is inconsistently applied. The EASO reported in 2015 that the punishments meted out to the relatives of deserters are ‘not imposed consistently’, and may depend on the region and the circumstances surrounding the desertion. Similarly, the Dutch Country of Information Report on Eritrea cited by the Delegate indicates that punishments against relatives against deserters ‘were not enforced consistently and could vary from region to region’.
Similarly, the Landinfo report relied on by the Delegate in other parts of the decision also noted that as at “July 2005, Amnesty reported on the arrests of mainly parents, but also other family. Country of origin information does not indicate that the siblings were targeted by authorities in the same way. members, of young Eritreans who had deserted or failed to return to service after 1994.” Country of origin information does not indicate that the siblings were targeted by authorities in the same way.
In summary, country of origin information indicates that since 2005, the family members of deserters may face penalties. In our submission, this information does not contradict [Ms A]’s evidence that her sister was visited by authorities, most likely prior to 2005, and did not face other penalties.
Illegal departure
The Delegate accepted that [Ms A] had departed Eritrea illegally and that “she will be required to regularise her status with the Eritrean authorities, with the possibility of having the two percent tax imposed on her”. Despite this, the Delegate did not further consider the manner in which [Ms A] would be required to regularise her status nor whether she could pay the tax required, if she were able to nor did she consider the consequences of her doing this or not doing this. In our submission, available country of origin information indicates that [Ms A]’s illegal departure indicates that she faces a real chance of serious harm should she return. For example, the DFAT Report notes:
[5.24]
Proclamation 24 of1992 states that violations of the exit rules or attempts to cross the border illegally (or to help others to do so) are punishable by prison sentences of up to five years and/or fines of up to the equivalent of AUD865. EASO reported in May 2015 that punishment for those caught attempting to leave the country illegally was generally imposed on an arbitrary and extrajudicial basis, and may include detained without charge for an unspecified period of time, being fined, being recruited(or returned) into a military unit, or not being punished at all.
The DFAT Report also relevantly notes that those who had not completed national service ‘may face a risk of punishment on return, which may include imprisonment or being re-assigned to duty’.
The 2016 EASO report also notes that ‘[a]ccording to almost all sources, individuals who leave Eritrea illegally are also subjected to extra judicial punishment’. The penalties imposed for leaving Eritrea are arbitrary, with periods of detention generally ranging from six months to two years, and in some cases longer. The report also states that between 2002 and 2008, Eritrean returnees were ‘repeatedly subjected to harsh and arbitrary punishment, including indefinite incommunicado detention and torture’. While the report suggests that those who return to Eritrea for short periods may escape punishment, it notes that there is no evidence to clarify the fate of permanent returnees and emphasizes that Eritrean authorities are constantly changing their practices regarding returnees. There is therefore no legal certainty for those returned to Eritrea.
In January 2018,the Netherlands requested the Eritrean chargé d’affaires to leave the country due to concerns as to the mandatory 2% ‘recovery and rehabilitation tax’ levied on Eritrean refugees and Eritreans in the diaspora. The UN Special Rapporteur noted that those who refused to pay this charge ‘were subjected to threats, harassment and intimidation’.
The UN Special Rapporteur noted in July 2017 that
Those who cannot obtain exit visas are seen as draft evaders or military deserters, as well as political opponents akin to traitors. If they returning, such individuals risk being detained in inhumane conditions and are most likely to be assigned or re-assigned to military training and service, which continues to amount to enslavement and forced labour.
Furthermore, signing the letter of regret is an admission of wrongdoing which ‘gives the authorities carte blanche to mete out arbitrary punishment’.
In a similar manner, the 2015 UN Commission of Inquiry on human rights in Eritrea reported that
With a few exceptions, those who have be enforced to return to the country have been arrested, detained and subjected to ill-treatment and torture. Eritreans voluntarily returning to their country may face arbitrary arrest, in particular if they are perceived as having associated with opposition movements abroad.
Landinfo have cited experts Gaim Kibreab and David Pool as stating that Eritreans who have left the country illegally risk suspicion, interrogation, and ill-treatment if they return.
In our submission, the above information clearly supports the claim that [Ms A] would face a real chance of serious harm should she return to Eritrea and importantly, that the Delegate failed to consider this information in reaching her assessment.
Country of origin information
In our submission, available country of origin information corroborates [Ms A]’s claims for protection, her experiences in Eritrea and the risk to her should she return.
Reports note that international civil society organisations remain unable to operate in Eritrea, limiting the availability and accuracy of independent reports about the current situation faced by citizens:
International civil society organizations focused on human rights were generally not able to operate in the country. The government did not cooperate with such groups or with investigations into human rights abuses. No local human rights nongovernmental organizations operated in the country (see section 2.b., Freedom of Association).
The United Nations or Other International Bodies: The government did not permit visits by the UN special rapporteur on human rights in Eritrea and remained opposed to cooperating with her mandate.
Despite these limitations, its most recent Country Report on Human Rights Practices, the United States Department of State describes substantial and ongoing human rights issues:
Significant human rights issues included credible reports of: unlawful and arbitrary killings; forced disappearance; torture; harsh and life-threatening prison and detention center conditions; arbitrary detention; political prisoners; serious problems with judicial independence; arbitrary or unlawful interference with privacy; serious abuses in a conflict, including reportedly unlawful and widespread civilian harm, rape, and enforced disappearances; serious restrictions on free expression and media, including censorship and the existence of criminal libel laws; substantial interference with the rights of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; severe restrictions on religious freedom; restrictions on freedom of movement and residence within the territory of the state and on the right to leave the country; inability of citizens to change their government peacefully through free and fair elections; serious and unreasonable restrictions on political participation; serious government restrictions on domestic and international human rights organizations; lack of investigation of and accountability for gender-based violence, including but not limited to domestic or intimate partner violence; trafficking in persons; existence of laws criminalizing consensual same-sex sexual conduct between adults; outlawing of independent trade unions; and the worst forms of child labor.
The government did not generally take steps to investigate, prosecute, or punish officials who committed human rights abuses. Impunity for such abuses was the norm.
The same report notes that arbitrary arrest and the detention of political detainees continues, including for individuals perceived to have an intention to avoid national service or leaving the country without an exit permit:
Arbitrary Arrest:
Arbitrary arrest occurred frequently. Security force personnel detained individuals for reasons that included suspicion of intent to evade national and militia service, criticizing the government, attempting to leave the country without an exit visa or passport, and for unspecified national security threats. Authorities also continued to arrest members of unregistered Christian groups. Authorities sometimes arrested persons whose papers were not in order and detained them until they were able to provide evidence of their militia status or demobilization from national service. The government contacted places of employment and used informers to identify those unwilling to participate in the militia.
Political Prisoners and Detainees
The government continued to hold an unknown number of detainees without charge or trial, including politicians, journalists, members of registered and unregistered religious groups, and persons suspected of not completing national service or evading militia duty (see also section 1.b., Disappearance). In 2019 Amnesty International estimated there were hundreds of “prisoners of conscience… including journalists, former politicians and practitioners of unauthorized religions.” The government did not permit access to political detainees, most of whom were housed in unofficial facilities.
Amnesty International’s annual report into the State of the World's Human Rights; Eritrea 2021 notes:
The Eritrean authorities continued to subject hundreds of individuals to arbitrary detention and enforced disappearance. Journalists, former politicians and practitioners of unauthorized religions remained in detention without charge or access to lawyers or family members. The whereabouts of 11 politicians and 17 journalists arrested and detained 20 years ago for criticizing the president’s rule remained unknown.
Among those forcibly disappeared were Swedish journalist Dawit Isaak, Berhane Abrehe, a former finance minister who published a book criticizing the president in 2018, and Ciham Ali. An Eritrean/US national, Ciham Ali was arrested in December 2012 at the Sudan border as she tried to flee Eritrea when she was 15. Shortly before the authorities took her, her father, then a minister of information in the Eritrean government, had gone into exile.
Reports also indicate note horrific conditions for those who are arbitrarily detained:
The Special Rapporteur remains concerned about the situation of persons who were forcibly disappeared and arbitrarily detained in secret prisons in violation of human rights standards. He has heard testimonies from witnesses, and from detainees who were held in places known as “villas’” – secret places of confinement in the middle of towns that cannot be readily identified as prisons or places of detention. Although the number of such secret places cannot be verified due to the complete lack of transparency of the penitentiary system, considering the number of those who have been disappeared it is apparent that this practice continued to be widespread during the reporting period. The Special Rapporteur urges Eritrea to reveal the whereabouts of victims of enforced disappearance, including by informing their relatives of the places where they are detained, developing a transparent and efficient system for the registration of detainees and informing relatives about their state of health and conditions of detention.
The Special Rapporteur heard testimonies of victims imprisoned in infamous centres – including Adi Abeto, Eiraero, Adi Qala, Barentu, Gedem, Ghatelay, ai Daga, Me’eter, Prima country and Wi’a – who without exception described inhuman or degrading conditions of detention, namely extreme overcrowding, lack of access to food, water and sanitation, non existent or inadequate medical attention and occurrences of torture and inhuman or degrading treatment
The most recent published decision of the Administrative Appeals Tribunal in 2018 reached the following conclusions regarding the human rights situation in Eritrea:
The sources referenced by the Tribunal present a state of affairs in Eritrea of almost total violation of human dignity, and an almost total absence of the rule of law, which has been replaced by corruption, arbitrary violence, indefinite detention, torture and harsh treatment of opponents and dissents, especially in prisons, where torture and savage ill treatment are the norm, and such abuses are not punished. Extremes of heat and cold, lack of sanitation are the norm in over crowded constructed out of shipping containers.
The Tribunal notes that there is a culture of impunity, and no chance of rescue from abuse of authority, much less for redress.
Actual and imputed political opinion
As outlined above and below, country of origin information overwhelmingly indicates that the Eritrean government does not tolerate any form of dissent, including those perceived to oppose the government:
Civic space in Eritrea is tightly closed. The system of repression and silencing of any dissenting voices persists, including through the detention or enforced disappearance of thousands of leaders and members of religious groups, members of the political opposition and sympathizers, activists, journalists and draft evaders.The widespread arbitrary arrest and incommunicado detention of individuals and groups perceived as critical of the authorities continued to instil fear and to effectively suppress freedom of expression and of association in the country.
No progress was made towards there presentation and free participation of the Eritrean people in the public life of their country. While there are a variety of political opposition groups in the diaspora, the People’s Front for Democracy and Justice continues to be the only authorized party in Eritrea. The Eritrean authorities also attempted to impede the political organization and participation of Eritreans in the diaspora.
People avoiding or defecting from national service, fleeing Eritrea illegally or seeking asylum outside of Eritrea are all perceived to be acting against the government. In our submission, [Ms A] would be imputed with such oppositional opinions should she return to Eritrea by virtue of her actions prior to leaving Eritrea and also the time that she has spent abroad. In our submission, the entirety of her profile is such that she will be imputed with an anti-government opinion and therefore, targeted.
Draft evaders/deserters
Article 37 of the National Service Proclamation provides a minimum punishment of 2 years’ imprisonment or a fine for desertion. The penalty increases for those who leave the country to Article 300 of the Penal Code of 1991 stipulates that desertion is punishable by five years’ imprisonment.
Avoid national service and do not return to the country to perform their service before age 40.These deserters are liable to 5years’ imprisonment until the age of 50,and are suspended from acquiring land, visas or business licenses. Article300 of the Penal Code of1991stipulates that desertion is punishable by five years’ imprisonment.
The United Kingdom Home Office summarized the situation as follows:
‘In general, a person who is of,or is approaching, national service age and who has left Eritrea illegally and is not perceived to have given valuable service to the government;
ii) a member of a family that belongs to the military/political leadership; and/or
iii)a person who fled Eritrea during the war of independence (or the person’s child), is likely to be perceived as having evaded or deserted from national service.
Such persons are likely to be subject to treatment that by its nature and repetition is likely to amount to persecution or serious harm.
Country of origin information notes that Eritrean authorities are known to search for deserters, who if located face various human rights violations. The UN noted:
The Special Rapporteur continued to receive reports of grave human rights violations linked to the national/military service, including abusive conditions, severe punishments and in human or degrading treatment, sexual harassment and violence against female conscripts, and the use of conscripts in forced labour. The right to conscientious objection is not recognized in Eritrea, and deserters and draft evaders are subjected to severe punishment, including arbitrary detention, torture and in human or degrading treatment, and extra judicial killings.
Regardless of age or gender, Eritreans without proper documentation showing completed military service are subject to arbitrary arrest and arbitrary invasions of privacy. The United States Department of State reports that authorities have arrested persons who are unable to show documentation proving military service. Those arrested are detained until they can prove demobilization from national service or their militia status.
As noted above in section 3.4, country of origin information relating to an age limit for female conscripts indicates that older women and mothers have been conscripted in the national service. As the United Kingdom Home Office reports, “[t]he arbitrary and inconsistent application of the [national service] rules means that conscripts’ experience of national service –and length of service–varies greatly and in extreme cases, a conscript may serve up to 30 years.
Country of origin information clearly supports [Ms A]’s claims that she was arbitrary arrested, detained and tortured for refusing to complete national service and moreover, that this will still create a risk for her should she return.
The United Nations Human Rights Council has noted that there have been no reforms to the national service system in Eritrea. The Eritrean Government justifies the continued policy of indefinite conscription as necessary to defend the country against the Tigray People’s Liberation Front.
In 2022, Human Rights Watch provided an update on Eritrea’s national service regime
‘Forced conscription and deployment to the military also continued through the country’s infamous indefinite national service system. Mostly men and unmarried women were sent indefinitely into the military or civil service for low pay and with no say in their profession or work location. Conscripts are often subjected to in human and degrading punishment, including torture, without recourse. Conscientious objection is not recognized; it is punished. Discharge from national service is arbitrary and procedures are opaque.’
In the current context of armed conflict with the Tigray People’s Liberation Front, it appears extremely unlikely that the national service regime will undergo more liberal reform.
Recent country of origin information from the United Kingdom Home Office further suggests that returnees who are perceived as draft deserters and are willing to pay the 2% diaspora tax and sign the necessary letter of regret may still be forced to perform military service or be imprisoned.
Reports also note that women required to undertake national service are subject to sexual harassment and abuse. The UN Human Rights Council reported:
‘testimonies of former female conscripts who were abused by their superior officers –including by being subjected to physical and verbal abuse and being forced to work as domestic servants–and who recounted that sexual harassment and sexual abuse of female conscripts were common, in particular at Sawa military training camp.’
Consistent with [Ms A] ’s evidence, women in the national service are often required to work as cooks, cleaners, launders, personal assistants to commanders, or office workers. In these positions, the European Asylum Support Office (EASO) note, women experience immense vulnerability to sexual violence by superiors.
Sexual exploitation by commanders happens in different contexts and circumstances. Several sources indicate that some female conscripts try to avoid harsh assignments by offering sexual ‘favours’ to their superiors, are offered easier treatment in return for sex, or are threatened with an unpopular assignment (e.g.to the front line) if they do not offer such favours. Once assigned, in order to maintain a good relationship to their superior or to avoid punishments, sexual services are demanded by commanders, sometimes under the threat of harsh punishments or other disadvantages.
The UN Human Rights Council received ‘allegations of the sexual harassment and assault of young women and girls in the context of the national service. The Government continued to turn a blind eye to the complaints made by women; no individuals have been tried or sentenced for perpetrating sexual violence and abuse in the national service.
Illegal departure and forced return;
[Ms A] fled Eritrea illegally and has now been living abroad for approximately 20 years. [Ms A] has never indicated that she is willing to return to Eritrea and claims that she would be persecuted if she did
Reports indicate that Eritreans residing abroad mustpay 2%of their income as Rehabilitation and Reconstruction Tax (RRT). Those wishing to return to the country having not completed their national service must sign Form 4/4.2, which is known as a ‘form of repentance’.
There have been reports of returnees to Eritrea being subject to imprisonment and torture due to their illegal exit, particularly if they have evaded national service.
If the returnees signs the form of repentance and pays the RRT, they may be treated somewhat better, but still face imprisonment.
In a 2020 report, the Danish Immigration Service noted the following for individuals returned against their will:
Several of the interviewed sources stated that the Eritrean government does not accept receiving persons being returned to Eritrea against their will. One source elaborated that the Eritrean government would only allow persons to return if there is an agreement with the returnees. However, the source was not aware of any agreement between Eritrea and another country as for now.
…
Two sources noted that rejected asylum seekers would be subject to rough treatment upon return. According to the Chairman of the Habeshia Agency, the treatment of the returnees would depend on individual circumstances, and what information the authorities received from the consular offices from the country that rejected the asylum seeker. Two sources stated that the Eritrean diaspora is infiltrated by the spies of the Eritrean government who, according to the Chairman of the Habeshia Agency, are widespread in all of the countries where there is a substantial community of Eritreans.
Anecdotal evidence from those repatriated from Sudan suggests that most returnees were placed in an underground prison near Tesseney. Authorities then screened and profiled the returnees. There are reports of torture at this prison. The fate of the returnees then turned on their profile. The returnees reported that:
• ‘Persons who had not been conscripted yet were sent to military training e.g. in Afabet and later deployed to military units.
• Persons who had already been in military were sent to other prisons such as Hashferay or Adi Abeito.
• Younger children were released to their families.
• Elderly were sent to the military or enlisted in the People’s Army.’
Reports note that individuals fleeing Eritrea face arrest, detention and torture which in our submission supports the serious risk faced by [Ms A] should she be forced to return to Eritrea.
In our submission, her past refusal to complete national service, illegal exit and the fact that she would be returning to Eritrea after an absence of a significant period of time, [Ms A] will come to the attention of authorities should she return. Country information clearly indicates that she would be likely to face interrogation, arbitrary detention, torture and rape at the hands of Eritrean authorities.
Single/divorced women and women in Eritrea
The UN Committee on the Elimination of Discrimination against Women expressed concerns as to the ‘high prevalence of gender-based violence, in particular domestic and sexual violence’, in Eritrea and the lack of comprehensive legislation criminalizing all forms of gender-
The Committee further noted the ‘[p]ersistent patriarchal attitudes and discriminatory stereotypes regarding the roles and responsibilities of women’ in Eritrea and lamented the prevalence of female genital mutilation based violence, including marital rape. The Committee further noted the ‘[p]ersistent patriarchal attitudes and discriminatory stereotypes regarding the roles and responsibilities of women’ in Eritrea and lamented the prevalence of female genital mutilation.
The UN commission of inquiry on human rights in Eritrea reported on the widespread violence and discrimination suffered by women in Eritrea:
Discrimination and violence against women are present in all areas of Eritrean society. Women are not only at extreme risk of sexual violence within the military and in military training camps, but also in society at large, where violence against women is perpetrated in an environment of impunity.
In our submission, [Ms A]’s status as a single woman is such that she is particularly vulnerable to the specific forms of gender related harm should she be forced to return to Eritrea.
…
Past harm and modification of behaviour
The applicant has provided credible accounts of the harm she has suffered in the past, including arbitrary detention, torture and rape.
The High Court has held that “[p]ast events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence”. The High Court has also relevantly held that “[e]vidence that the applicant had been persecuted in the past would give powerful support to the conclusion that the claimed fear is well-founded”.
On the alternative basis, for the purposes of s.36(2)(aa) it is also submitted that the harm that she has suffered in the past clearly amounts to significant harm, as defined in s.36(2A). We also submit that the High Court precedents regarding the relevance of past harm referred to above are equally applicable to the real risk test in s.36(2)(aa).
Personal circumstances of the applicant
Certain kinds of harm can affect some victims different than others depending on personal attributes such as age or frailty. For example, a degree of physical exertion or distress may result in serious harm to one who is old and frail even if it would not in respect of a person who is young and strong. In SZBBP the Court held at [35] that in concluding that harm in the form of threats did not constitute serious harm, the Tribunal had erred in failing to consider the applicant’s age and frailty.
Following this, in considering whether some of the categories of harm listed above (including, but limited to: threats of harm where the applicant would perceive them to be likely carried out; and cumulative ongoing significant harassment and discrimination), it is necessary for the decision-maker to have regard to the visa applicant’s age and personal circumstances (such as physical and mental frailty) before considering whether it would amount to serious harm for s.91R(1)(b), or alternatively, significant harm under s.36(2A).
We note that [Ms A] is now elderly with several health issues that are directly relevant to the risk she would face on return to Eritrea.
State protection
As previously stated, and as supported by the country information cited above, the applicant fears the Eritrean authorities who are the perpetrators of harm against her. In addition to this, it is our submission that [Ms A] would be denied protection from the other form of harm she fears because of her gender and status as a single woman. In addition to this, even if she were not denied protection for this reason, there does not exist a reasonably effective police force and a reasonably impartial system of justice in all parts of the country that [Ms A] would be willing and able to access.
We submit on the same basis but in the alternative in relation to the differently formulated state protection test that applies to the complementary protection criteria. In this regard we submit that the level of state protection available to the applicant in her circumstance would not be sufficient to reduce the risk of significant harm to below a real, or more than remote, risk for the purposes of 36(2B)(b).
The applicant cannot safely relocate
We submit on the basis of the applicant’s credible evidence, including that detailed in her statements and corroborated by country information, there is a real risk of persecution now and in the reasonably foreseeable future, and/or a real risk of significant harm, in all parts of Eritrea. In our submission, it is not possible for the applicant to relocate.
We submit on the basis of the applicant’s credible evidence and compelling country information that there is a real risk of persecution in Eritrea for a person who is sought by the government. now and in the reasonably foreseeable future, and in the alternative a real risk of significant harm, in all parts of
Personal circumstances
Without casting doubt on this assertion, we also submit in the alternative that due to specific personal circumstances of the applicant, in the event it was found that there was a location within Eritrea where the risk of persecution now or in the reasonably foreseeable future or significant harm was fanciful or far-fetched (contrary to our submission), the following circumstances, when considered individually and cumulatively mean that relocation to that area would not be reasonable in the sense of practicable, including that she be expected to remain in that specified location indefinitely. In particular, we note that [Ms A] has various health issues which require monitoring and treatment. In addition to this, she does not have any family or other support in any part of Eritrea and is not in a position to support herself financially.
Findings and analysis

The Tribunal has evaluated the claims of the applicant and tested her evidence in the hearing.
The Tribunal notes that the applicant’s claims revolve around having a variety of profiles and combinations thereof.
The Tribunal has examined the case primarily from the point of view of the applicant potentially being a member of a particular social group, i.e. women who have departed Eritrea illegally, who have previously experienced violence and disadvantage.
Such a group would be identifiable by characteristics or attributes common to all members of the group (and it is not fear of persecution that they have in common).
Overall, the Tribunal is satisfied that the applicant has given genuine evidence. The Tribunal accepts that the applicant departed Eritrea illegally. The Tribunal accepts that she is a victim of sexual violence and she has described. The Tribunal also finds that the applicant is a divorced woman who did not keep her children and that they were instead taken by her former husband. Her account of departure from Eritrea, taking shelter in [Country 1], returning to her country, and departing in fear were consistent and I accept them. The account is not at odds with most of the delegate’s findings, and I note that the UNHCR found her to be refugee under the terms of their assessment many years ago.
The Tribunal is at one with a delegate in finding that the applicant is a victim of violence in Eritrea.
The Tribunal accepts the applicant’s evidence that she departed Eritrea to live in [Country 1]. The Tribunal also accepts that she returned to Eritrea in the hope that there would be more safety and security for her and to be with wider family. The Tribunal finds that she refused military service obligations and instead was the victim of more violence and ultimately had to flee the country again to [Country 1].
The Tribunal also finds from consistent evidence that the applicant has not carried out national service or its equivalent in Eritrea.
The Tribunal refers to the quoted country information about illegal departure from Eritrea.
Country information considered is from the most recent DFAT report on Eritrea[1], as follows:
[5.24]
Proclamation 24 of1992 states that violations of the exit rules or attempts to cross the border illegally (or to help others to do so) are punishable by prison sentences of up to five years and/or fines of up to the equivalent of AUD865. EASO reported in May 2015 that punishment for those caught attempting to leave the country illegally was generally imposed on an arbitrary and extrajudicial basis, and may include detained without charge for an unspecified period of time, being fined, being recruited(or returned) into a military unit, or not being punished at all.
[1] DFAT Country Information Report Eritrea, 8 February 2017
The UK Home office specifies in its report on illegal exit [2]:
18.2
Deportees or refused asylum seekers
18.2.1
In 2019, EASO reported: ‘Information about the treatment of the deported persons is scarce. Forced returnees usually have no opportunity to pay the 2% tax and sign Form 4/4.2 and to thereby ensure a more lenient treatment. [The State Secretariat for Migration of Switzerland] SEM observed that the fate of most deported persons upon arrival in Eritrea is unknown and undocumented. Information is available only regarding persons repatriated across the land borders from Sudan, and it is anecdotal. The available accounts describe that after arrival in Eritrea, most returnees were put in an underground prison near Tesseney, where the authorities screened and profiled them. Torture is reported from this prison. According to the accounts of deportees from Sudan who have left Eritrea again and sources who have been in touch with them, the follow[1]up depended on the profile: • ‘Persons who had not been conscripted yet were sent to military training e.g. in Afabet and later deployed to military units. • ‘Persons who had already been in military were sent to other prisons such as Hashferay or Adi Abeito. • ‘Younger children were released to their families. • ‘Elderly were sent to the military or enlisted in the People’s Army.’115
18.2.2
According to various sources interviewed for the DIS 2020 report: 114 EASO, ‘Eritrea: National service, exit and return’ (pages 55 to 56), Sept 2019 115 EASO, ‘Eritrea: National service, exit and return’ (pages 63 to 64), Sept 2019 Page 45 of 49 ‘…the government had accepted Eritreans deported by African states… some of the deportees had ended up in prison and some were sent directly to perform military or civilian national service. ‘Two sources noted that rejected asylum seekers would be subject to rough treatment upon return… ‘One source opined that the Eritrean authorities would probably not care much about the fact that some returning Eritreans were rejected asylum seekers. Instead the authorities were more likely to pay attention to whether these returnees had left the country illegally or not, and would treat them accordingly. This source advised that the deportees were most likely to be detained… ‘One source mentioned a case from Sudan in 2018, where the Sudanese authorities had returned Eritreans to Eritrea. The Sudanese government basically deported these Eritreans, who had entered Sudan illegally and had gone to Khartoum instead of going to the refugee camps. According to this source, the returnees were detained when they arrived in Eritrea.’
[2] UK Home Office, Country Policy and Information Note Eritrea: National service and illegal exit Version 6.0 September 2021
Based on her experiences in Eritrea, her attitudes expressed in the hearing, and her health issues, I find the applicant would be an unwilling returnee.
There is a real possibility that if involuntarily returned to Eritrea, the applicant would be arrested and detained, based on the country information.
The US State Department in 2022[3] for example found that arbitrary arrest occurs frequently. Security force personnel detained individuals for reasons including attempting to leave the country without an exit visa or passport. Authorities sometimes arrest persons whose papers are not in order.
[3] US Department of State, 2022 Country Reports on Human Rights Practices: Eritrea, p 6.
The legal position of illegal exit is set out as follows by an independent EU body in its 2016 EASO Country of origin report for 2016:
2.1
Legal position
The entry and exit requirements of Eritrea are laid down in Proclamation 24/1992. In accordance with Article 11 [of the Proclamation], a valid travel document (passport), a valid exit visa and a valid international health certificate are required in order to leave Eritrea legally. Individuals must also cross the border at a designated border control point (Article 10). Infringements of these rules and attempts to cross the border illegally or to help others to do so are punishable by a term of imprisonment of up to five years or a fine of up to 10,000 Birr ( 98) or both (Article 29(2) [of the Proclamation]) ( 99).
The provisions of the National Proclamation and of the Penal Code cited in Chapter 1.1.1 also apply to people who leave the country after deserting or evading the draft. However, in accordance with Article 37(3) of the Proclamation on National Service of 1995, there is also the aggravating factor that records are kept of people liable for compulsory service (‘any citizen ... knowing that he has the duty of serving in the National Service’) who flee to another country. If they do not return before their 40th birthday and complete their compulsory service, they may be jailed for five years up until their 50th birthday. They also lose the right to work and to own land. In this area, the law does not distinguish between legal and illegal exits (100).[4]
[4] The European Asylum Support Office (EASO) EASO Country of Origin Information Report. Eritrea National service and illegal exit >
The Tribunal finds that it is well within the bounds of possibility that the applicant would be placed in detention because she has left Eritrea and irregular way. The Tribunal finds that Eritrea is a country that is consistently ranked as a state at risk of failure.[5] That is to say that the basic law and order function of the state is imperilled, and that authorities behave erratically and with impunity. Eritrea has weak state capacity or weak state legitimacy, leaving citizens vulnerable to a range of shocks. There is little in the way of due process and the Tribunal has little confidence that a person arrested for illegal departure would be given basic rights, due process and an opportunity to eventually obtain their freedom. Anecdotal evidence from those repatriated from Sudan suggests that most returnees were placed in an underground prison near Tesseney.[6] Authorities then screened and profiled the returnees. There are reports of torture at this prison. There is a possibility that a similar approach would be taken for the applicant.
[5] Country Dashboard | Fragile States Index EASO, ‘Eritrea: National service, exit and return’ (pages 63 to 64), Sept 2019 >
The Tribunal notes that prison conditions are considered to be poor in Eritrea. The Tribunal also observes that commentators have very little information as to what occurs in prisons in Eritrea as little factual material emerges to the outside world. The example of a prison above is given in country information, in which it is anecdotally discussed to have had numerous human rights violations.
The Tribunal notes that for this reason alone the applicant faces a real chance of persecution. The Tribunal is unconvinced that the applicant would be made to perform any form of national service. She is well past the cut-off point, at [age] years. She is also unhealthy and can perform only the lightest of duties at home, such as minor food preparation. She is also almost certainly psychologically affected by past trauma. The Tribunal had to postpone one scheduled hearing because of her ill-health. There is a medical certificate to this effect. I do not have specific diagnoses before me, however I have given regard to the consistent oral evidence and her appearance and presentation at the in-person hearing. No matter how draconian the law is, and no matter how erratic and unfair the authorities may be, realistically speaking, negligible or nil service could be obtained from the applicant (through no fault of her own, I add).
Despite that, her failure to perform national service weighs as an additional risk factor in assessing whether she would be detained. It increases her risk of serious harm.
Further exacerbation comes from the fact that she is a woman, divorced, without any family in Eritrea, has lived in a western country and has experienced sexual violence. These factors may well trigger prejudices and discrimination on the part of authorities and even non-state actors and worsen her experience in a prolonged detention.
The delegate raised the visa history of the applicant, yet even if there have been issues and discrepancies, they do not create credibility issues so severe that they would negate her risk profile as a divorced woman who has illegally departed Eritrea and her prospect of being imprisoned in harsh conditions.
I find that her account of experiencing sexual violence was recounted in a credible and straightforward way, and I accept that the events occurred. I accept that victims can be vulnerable to more such crimes and that having suffered in past from sexual violence can correlate with repeated attacks. In a prison context this is a matter of great concern.
The applicant I accept is also reliant on various medications for high blood, pressure, type 2 Diabetes and other conditions. Access to such medications would be tenuous and expensive and I have no confidence that they could be obtained in prison in Eritrea. This aggravates further her risk of serious harm.
I note that further claims of feared persecution were on political and other grounds. As I have made the above findings I do not draw conclusions on those additional claims, suffice to say that none of them negate the findings I have made.
The harm faced would apply to all parts of the country (thus relocation is not viable) and as the state would the main perpetrator of potential harm there would not be effective state protection.
There is no evidence of a right to live in a third country. Her former [Country 1] passport I find was issued without entitlement.
The applicant has a well-founded fear of persecution as a member of a particular social group: i.e. women who have departed Eritrea illegally, who have previously experienced violence and disadvantage.
It follows from the findings above, and the Tribunal finds, that the applicant has well-founded fear of persecution for reason political opinion (opposition to the government). She is therefore a refugee within the meaning of Article 1A(2) of the Convention and a person in respect of whom Australia owes protection obligations. It therefore follows and the Tribunal finds that she meets the requirements of section 36(2)(a) for a protection visa.
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).
Certificate – non-disclosure
The Tribunal has identified a section 438 certificate on the file of the Department. The information subject to the certificate does not impact on the applicant in any way. The applicant has been advised of the existence of the certificate in the hearing and why the information is not relevant to review. The information is about a departmental methodology that does not bear on the particular visa in question before the Tribunal and is only marginally relevant to a purported historical application of another visa class.
The disclosure of this information would be contrary to the public interest because, folio(s) 103-105 contains information that documents that contain information, where the release of such information would impact the effective operation of the Department. Paragraph 438(1)(a) applies in relation to this information. The Tribunal's regard to and disclosure of this information or document(s) is subject to the provisions of subsections 438 (3) and (4) of the Act.
The certificate is while otherwise valid and in order, it is undated, yet the Tribunal has elected to not release the folios in question, or seek reissue of the certificate, for reasons of relevance and expediency. The certificate does not refer to material that is either supportive or detracts from the deliberative issues at hand in this case. Release of the folios might well detract from the fair and normal operations of the department in testing identities. The folios I give no regard to and the information plays no role in my decision. The folios are not released.
The undated certificate itself has been released to the applicant for their information only and no comment or response is required.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Justin Meyer
Member

[2023] AATA 2524

19 May 2023

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