1828833 (Refugee)

1828833 (Refugee) [2023] AATA 2898 (11 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1828833
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Kate Millar
DATE:11 April 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2023 at 11:54am
CATCHWORDS
REFUGEE – protection visa –Ethiopia – ethnicity – Amhara – imputed political opinion – political activist – anti-government views – no risk of serious or significant harm as a result of the applicant’s association with her previous husband, due to his military role – no real chance of serious harm or real risk of significant harm now or in the reasonably foreseeable future if the applicant were to return to Ethiopia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K-LA, 36,65,499
Migration Regulations 1994
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

[The applicant] is a citizen of Ethiopia who came to Australia on a prospective spouse visa. She was granted a temporary spouse visa, which ceased on 14 August 2014 following her divorce.
On 4 October 2016, [the applicant] applied for a Subclass 866 protection visa, claiming to fear persecution from Ethiopian security authorities because of her perceived or actual political opinion. Her visa application was refused on 21 September 2018 under s 65 of the Migration Act 1958 (Cth) (the Act), and [the applicant] applied for a review of this decision.
[The applicant] appeared before the Tribunal on 24 February 2023 to give evidence and present arguments. The Tribunal also took evidence from [Ms A] and [Ms B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages.
BACKGROUND
[The applicant] was born in Addis Ababa and is now [age] years old. Her parents are deceased but were living when she first came to Australia. She said her mother had returned to Gondar, which is her mother’s place of origin, after which she did not hear of her again. Her father is Eritrean and when the government changed in the election, he chose to be Eritrean. She said she had not seen him for a long time, and she does not have a right to live in Eritrea.
[The applicant] said she has many brothers and sisters and her family is very big. She does not have any siblings in Australia. She is in contact with two of her sisters, one of whom lives in Addis Ababa and one who lives in the[Country 1]. She sends money to her sister in Ethiopia. She does not have contact with her brothers.
[The applicant] married in Ethiopia in approximately [year] and has a son who now lives in [Country 2].
[The applicant] completed high school in Addis Ababa before undertaking a year of [Profession 1] training in [City 1], in the north-eastern part of Ethiopia. After completing her [Profession 1] training, she remained in the countryside in [City 1] for more than four years as a [Profession 1].
While[the applicants]’ account of the time she has spent in various places has varied, the sequence of her locations has not varied, but the period of time in which she was in each location has varied considerably.
At hearing with the benefit of an interpreter, she said that after she had [worked in profession 1]in [City 1] for approximately four years she returned to Addis Ababa and [worked in profession 1] for approximately five years. She then went to [Country 3] where she worked for three years as a [Job 1].
[The applicant] returned to Ethiopia for one to two years in approximately 2009 before coming to Australia in 2011 on a prospective spouse visa. She married in Australia on [date deleted]and was granted a Prospective Spouse (Subclass 820) visa on 15 February 2012, however a permanent partner visa was refused on 14 August 2014 as the relationship had broken down. [The applicant] unsuccessfully applied for the intervention of the Minister after her visa was refused.
In the time she has been in Australia, [the applicant] has returned to Ethiopia for approximately a month in 2012.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Subject to s 5J(6) of the Act, a person may be a refugee in circumstances where the well-founded fear of persecution is a consequence of events that have occurred since arriving in Australia. Section 5J(6) provides that any conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The current report from DFAT is the DFAT Country Information Report Ethiopia dated 12 March 2020. A copy of this report was provided to [the applicant]prior to the hearing.
CLAIMS
In a statement that accompanied her visa application, [the applicant] claimed (in summary):
·She is active in her community and teaches Amharic children at the church on a voluntary basis.
·She is also an active member of [a group]and supports young mothers during and after birth in accordance with Ethiopian customs.
·As a result, she is always being asked to support or to organise community events with other women’s groups.
·In [year deleted]2014, she was asked to cook food for an Ethiopian event. She later discovered this event was organised by members of Ginbot 7 in [City 2]. Ginbot 7 is an opposition movement opposed to the Ethiopian government.
·A few weeks after this event she was asked to attend a meeting. At the meeting the organisers raised concerns about Ethiopia’s human rights record. One of the issues discussed was forced land confiscation by the Ethiopian government. In recent years the Ethiopian government has been taking land by force from poor civilians to sell to wealthy developers, and her family was a victim of this injustice.
·Her family’s land was confiscated approximately eight years before. They have tried in vain to get their land back, and in the end were forced to return to Gondar where her mother was born. Following this incident, she developed a hatred of the Ethiopian government.
·Through the Ginbot 7 movement she has found her voice and strength to stand up for her rights and those of other victims. She is often vocal in meetings and encourages other members to pressure the Ethiopian government to stop confiscating land from the poor and emphasise the need to raise money to alleviate poverty in Ethiopia.
·In August 2016, civil unrest broke out in the Oromia and Amhara regions where her family lives, and her family was forced to flee.
·Following this unrest Ginbot 7 organised demonstrations in major cities in Australia to protest the killing of civilians. She took part in the demonstrations after seeing pictures of dead bodies of civilians killed by soldiers.
·During the demonstrations they marched along the streets chanting and calling for the Ethiopian government to stop killing innocent civilians. Someone took live pictures of the demonstrations and uploaded them to the [a site]. [The site] is an internet-based opposition movement which is also against the Ethiopian regime.
·About three weeks after the demonstrations, she received information from Ginbot 7 in [City 2] that the Ethiopian government has started screening personal information and pictures of all those who took part in demonstrations in Australia. She was warned it was highly likely that she has been positively identified and would be targeted on her return to Ethiopia.
·The Ethiopian government deals harshly with anyone suspected to be against the government, and she cannot return to Ethiopia for fear of being arrested and detained.
·Her photo together with those of other protesters have been uploaded to the opposition parties’ website and this information will be used against her to imply she is against the current Ethiopian regime.
·She fears she will be arrested and severely beaten if she returns to Ethiopia. The current government will not protect her as they are the people who are after her. She has no home to return to as the Ethiopian government confiscated their family land. She cannot return to [Country 3] because her visa was cancelled when she came to Australia.
After the interview, the applicant forwarded a link to a [social media] site and photographs, which she said show her protesting. On attempting to access the [social media] video, the link led to a page which states “This video isn’t available anymore”.
At hearing, [the applicant] said she was not a member of a political party in Ethiopia or in [Country 3], but while she was in [Country 3] supported a political party. She could not recall the name of the party but said there was a political movement in 1997 she supported. On being asked about how she supported this movement, she said she supported by using [social media], following the news and writing letters. On being asked whether [social media] was available in 1997 when she was in [Country 3], she then said she did not use [social media].
[The applicant] said she moved to [Country 3] because her previous husband was close to a military general during the military government, and when this government was thrown out she was in fear.
[The applicant] said her previous husband was [name deleted]. She said after the military was thrown out people repeatedly came and asked for information and documents. Because of this she was not confident and left [Country 3]. By this time, her previous husband was in Kenya. Her son now lives in [Country 2].
On returning to Ethiopia from [Country 3], she said she did not experience any problems, but there could be a problem because of her husband. On being asked if this would be a problem if she returned to Ethiopia now, she said the main problem for her is ethnic differences and ethnic conflict.
[The applicant] said that the house she owned was demolished approximately two years ago. She said it was hard for her to understand why her house had been demolished, and said it belongs to the Oromo group and she had to move out. She said it was a new house when she left, and she gave it to her friend. She did not live in the property as it was being built when she came to Australia.
She has never been arrested in Ethiopia or in [Country3]. On her return to Ethiopia, she said she was a supporter of a political party. [The applicant] said the main problem now is because of ethnic conflict. She is Amhara and at the moment people cannot speak in Amhara in Ethiopia as, if the Amhara language is used, the Oromo ethnic group will dominate them. She said she hears a lot of things and that Amhara people who have travelled to Canada and the United States have been killed.
[The applicant] also said she had been writing about political unfairness and has been opposing the government by writing and participating in demonstrations. On being asked what writing she had done about political unfairness, she said she had been writing against the government telling them to stop killing people.
[The applicant] claimed that she was involved in protests in Australia. She said she was a political supporter and opposed the government by writing and participating in a demonstration. She was protesting about political unfairness, meaning the government should stop killing people and release electricity. She said she wrote on [social media] and [social media], responding to people in political parties, in particular Andargachew Tsege from Ginbot 7. She said Mr Tsege is now living in England. The opposition parties allowed him to re-enter Ethiopia but after that he was unhappy and was arrested in Ethiopia because he had UK citizenship. She said despite the information in the DFAT report that he was released and that opposition parties allowed him into Ethiopia her view was that the ruling government did not take the right action, so he returned to the UK.
[The applicant] was invited to provide any evidence of what she had written on [social media] and [social media] after the hearing, however no evidence of political writing was provided.
[The applicant] said that in addition to ethnic differences, she would not be able to return to Ethiopia because she has been away a long time so it will be hard to cope if she returns. She will have nowhere to live and nothing to eat.
[The applicant] said the main reason she could not return was because of ethnic conflict in Ethiopia. [The applicant] said for people who are Amhara it is difficult in Ethiopia from the time they returned at the airport, but could not specify the difficulty or hardships that would be suffered. [The applicant] claimed that Amhara people cannot speak Amhara because Oromo ethnic groups are dominating, and she had heard a lot of people have been killed.
[Ms A] gave evidence that she has known [the applicant] for approximately three years. [Ms A] said she is Amhara and has recently returned to Ethiopia to visit family and there is conflict between the government and opposition in Addis Ababa. There has been an airstrike in Gondar. She said in Addis Ababa it is silent, but Oromo people are attacking others more. [Ms A] said Amhara people can be identified by their identity cards as ethnicity is recorded on the identity card. She was not harmed because they were not in locations where there was conflict. On one occasion her passport was checked. She said it is hard to find work if a person is Amhara in Ethiopia, and [the applicant] has an Amhara name.
[Ms B] said it would be risky for [the applicant]to return to Ethiopia because she has no family members. [Ms B] said she did not know who would harm [the applicant] if she returned but that “in the current situation you don’t know”. By the current situation she explained this refers to problems with the church and ethnic problems. She said the government only protects the Oromo ethnic group.
Documents provided
Prior to the hearing, [the applicant] provided letters of support from [a] Church, [an] Association, her employers, and her general practitioner. These letters support her involvement in the community, her employment and that high stress levels are contributing to her poorly controlled high blood pressure.
After the hearing, [the applicant] provided the following reports:
·Human Rights Watch Report Ethiopia 2023
·Article by G Berhanu 2 July 2022 “Ethiopia: Mass-Atrocities, Genocide in Oromia region Against Amhara People – OpEd” Eurasia Review
·Associated Press 20 June 2022 “Ethiopia: more than 200 Amhara people killed in attack blamed on rebels”
·Report of the Ethiopian Human Rights Commission/Office of the United Nations High Commissioner for Human Rights (OHCHR) “Joint Investigation into Alleged Violations of International Human Rights, Humanitarian and Refugee Law Committed by all Parties to the Conflict in the Tigray Region of the Federal Democratic Republic of Ethiopia”
·Human Rights Council Fifty-first Session 12 September–7 October 2022 “Report of the International Commission of Human Rights Experts on Ethiopia”
·[An association] letter of support for [the applicant] dated 26 February 2023
·Photographs of a group with Ethiopian flags and banners. The legible banners read “Ethiopia has a right to defend her territorial integrity” and “The US and international community should respect the law of non-interference on a sovereign state Ethiopia”.
CONSIDERATION OF CLAIMS AND EVIDENCE
Political activism claims
[The applicant] claims to have been involved in protests and to have been a political supporter, although at hearing she could not identify the party she supported. She did not provide evidence of any of her claimed political writing. The claims in her application refer to her support for Ginbot 7.
Ethiopia first held multi-party elections in May 1995 and the EPRDF (Ethiopian People’s Revolutionary Democratic Front) won this and all subsequent elections, which resulted in stability and economic growth but restricted political dissent and media and civic freedoms.[1] EPRDF was disbanded in December 2019. In the time the EPRDF were in power ethnic Tigrayans wielded influence fostering resentment among the Amhara and Oromo ethnic groups.[2]
[1] ibid at [2.2]
[2] ibid

According to DFAT there were large-scale anti-government protests from 2014 in which protesters demanded greater political rights. The protests were centred in Oromia and later Amhara states with over 20,000 people arrested and 1,000 people killed. This led to the resignation of the then Prime Minister and appointment of Abiy Ahmed in April 2018. DFAT reports:[3]
Among other reforms, Abiy has lifted restrictions on freedom of expression, released political prisoners, removed terrorist designations of previously-exiled opposition groups, expanded the space for civil society, and initiated reform of legislation used previously to arrest and prosecute government critics. In parallel, Abiy has pursued high-profile diplomatic initiatives across East Africa. He was awarded the Nobel Peace Prize in 2019 for his peacebuilding efforts with Eritrea, culminating in the signing of an agreement to formally end their war. Abiy is Ethiopia’s first prime minister from the Oromo ethnic group.
[3] DFAT Country Information Report Ethiopia, 12 March 2020 at [2.3]
DFAT reports[4] that freedom of political expression has expanded since 2018, with more than 10,000 political prisoners released since 2018 including senior opposition leader Andargachew Tsege of Ginbot 7. It is reported that these groups renounced armed struggle and returned to Ethiopia where they operate as registered political parties. An amnesty was granted to thousands of people charged with treason and other crimes against the state. DFAT reports this has enabled high-profile opposition figures, including Berhanu Nega of Ginbot 7, to return from exile and resume their political activities.[5]
[4] ibid at [3.34]
[5] ibid
The Danish Immigration Services in its report Ethiopia: Political Opposition parties – recent developments[6] dated March 2021 reports that the Ethiopian Citizens for Social Justice (EZEMA) was founded in May 2019 through a merger of seven opposition parties, including Ginbot 7:
Ethiopian Citizens for Social Justice (EZEMA) has experienced challenges operating in Amhara. In some parts of Oromia, its party members are at risk or unable to leave their homes. EZEMA has been less vulnerable than other political opposition parties because of its shared ideology with the ruling party. A chairman of one of the party’s constituent officers in Oromia was shot dead in February 2020.[7]
[6] at p 13
[7] ibid p 1
In response, [the applicant] said that it is correct that Ginbot 7 is no longer a political party and the new ruling government gave it an option of being the opposition party. On it being explained that the Tribunal understood this passage to mean that Ginbot 7 merged into a new party, EZEMA, that is close to the ruling party, [the applicant] said that is right but due to ethnic differences they could not work together and split into the Oromo Hawat and the TPLF (the Tigray People’s Liberation Front).
DFAT assesses that:
tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.[8]
[8] DFAT Country Information Report Ethiopia, 12 March 2020 at [3.41]
It further states at [3.45]:
Anti-government protests can and do occur. DFAT assesses that, since April 2018, participants in peaceful protests face a low risk of arrest and detention. DFAT further assesses that participants in peaceful protests, including organisers, are likely to be of little ongoing interest to the authorities.
These passages were put to [the applicant], in particular that DFAT reports that people can openly criticise the government, and in response she said that people cannot get their humanitarian rights.
[The applicant] provided photographs, which she says show her attending a political protest. The Tribunal could not identify [the applicant] in the photographs. The placards carried by protesters also appeared to support the Ethiopian government, as they object to US intervention to pressure the Ethiopian government over the war in Tigray.[9] The Tribunal is not satisfied that any involvement in this protest by [the applicant] would put her at risk from the government if she were to return to Ethiopia.[The applicants]’ home region is Addis Ababa, and she has no known connection with Tigray. There is no suggestion she would be at risk from other groups such as the Tigray People’s Liberation Front.
[9] According to the Human Rights Watch Report the US suspended Ethiopia’s trade privileges due to concerns about human rights abuses by the Ethiopian government and warring parties in the conflict in northern Ethiopia
[Television and Radio network].[10] This publicly funded media network provides news in Amharic, Oromo and Tigrinya languages. The Tribunal could not locate information to show that it is a supporter of opposition to the government. If any images were uploaded to this site that identified [the applicant], the Tribunal does not consider these detrimental or that association with [the television and radio network] would pose any risk to [the applicant].
[10] [deleted]
Claims based on ethnicity
[The applicant] is Amhara, which is the second largest ethnic group in Ethiopia, comprising 26.9% of the population.[11] Amharic is the official national language.[12]
[11] DFAT Country Information Report Ethiopia, 12 March 2020 at [2.7]
[12] ibid
[The applicant] said that if she speaks Amhara then Oromo speaking people would put pressure on her or push or hit her. She said the Oromo ethnic groups are dominating the region and it is not possible to speak in Amhara without Oromo people dominating them. She said she hears a lot of things about people being killed with no reason including people who had travelled to Canada and the United States.
[The applicant] said her house, located at [location deleted], was demolished two years ago. She had not lived in the house as it was under construction when she came to Australia, so she gave it to a friend. She said she thinks it was demolished because the local government is Oromo and Oromia leaders do not want to give land to other ethnic groups because they think the land belongs to Oromo people and not Amhara people.
There are reports of an attack on Amhara people in the Oromia region by the Oromo Liberation Army in which it was reported over 200 people were killed.[13]
[13] “More than 200 ethnic Amhara killed in Ethiopia’s Oromia region, witnesses say”, ABC News, 20 June 2022; “Ethiopia’s Other Conflict”, Human Rights Watch (hrw.org), 4 July 2022; “Ethiopia: more than 200 Amhara people killed in attack blamed on rebels”, Associated Press, 20 June 2022
Reports provided by [the applicant] including the Human Rights Watch report record the effect of conflict in northern Ethiopia between the TPLF and government forces, although it is also reported that in western Oromia fighting between government forces and armed groups resulted in serious abuses committed by all sides.[14]
[14] World Report 2023: Ethiopia | Human Rights Watch (hrw.org)
The article by Girma Berhanu in Eurasia Review provided by [the applicant] refers to attacks in Gimbi, Oromia region, with regional authorities suspected of turning a blind eye to the killings. This article reports that the language-based federal system is in place because Amharas in regional states are considered migrants and settlers. This article reports that atrocities are not properly reported by international media. It is claimed that since Abiy Ahmed came to power there is widespread genocide and Amharas and non-Oromo groups have become targets and reports of killing of Amhara people have been blocked by the government. The article goes on to discuss “necropolitics” as the use of social and political power to dictate how people live and how some people must die, and states that the “habit of mass murder is deeply embedded into Oromo culture of warfare and social practice”. It is stated that Amharas are victims but are blamed, and are the targets of atrocity crimes while other ethnic groups claim they are the victims, and the international community is manipulated. It is stated that reports by Amnesty International, Human Rights Watch and the State Department are testimony that malice, distortions and “victim playing” are at work at national and international levels.[15]
[15] G Berhanu, “Ethiopia: Mass-Atrocities, Genocide In Oromia Region Against Amhara People – OpEd” Eurasia Review, 2 July 2022
This is an opinion piece, and sources for the statements have not been included. In the absence of supporting documents, the Tribunal places little weight on this article.
The Ethiopian Human Rights Commission and the OHCHR conducted a joint investigation into alleged human rights abuses in the period 16 May to 30 August 2021. The terms of reference focussed the investigation on human rights abuses in Tigray.[16] This report records attacks against civilians and unlawful killing by all sides to the conflict in Tigray including the TPLF, Ethiopian National Defence Forces, Amhara Special Forces and the Eritrean Defence Forces. The Fano, a group associated with Amhara militia, are also reported to have been involved in unlawful killing and extra-judicial executions. It is reported ethnic-based killing of more than 200 Amhara occurred in Mai Kadra by Tigrayan associated groups, with the Fano retaliating and killing five Tigrayans. Tigrayan associated groups are reported to have arrested and detained Amhara people in Tigray. The report includes an incident in Gondar,[17] where [the applicant] says her mother originated, however [the applicant] said she had never lived in Gondar and has only visited relatives there.
[16] International Commission of Human Rights Experts on Ethiopia | OHCHR p 7
[17] ibid p 2
The report from the OHCHR[18] focusses on the conflict in Tigray and does not report the situation in Addis Ababa, which is[the applicants]’ home region. While some conflict has spread to Oromia, the Tribunal does not consider that the conflict in Tigray reflects the conditions in all parts of Ethiopia. The actions of the combatants relate to the Tigrayan separatist movement and started following an attack by Tigray Special Forces against the Northern Command of the Ethiopian National Defence Forces and the resulting military offensive in response.[19] The OHCHR states:
Although its mandate authorizes it to investigate incidents throughout the territory of Ethiopia, the Commission confined its investigations for this report to the hostilities in Tigray and Amhara regions. It acknowledges that its selection will frustrate many, especially in light of the broad and troubling range of allegations of violations in Ethiopia since 3 November 2020.[20]
[18] International Commission of Human Rights Experts on Ethiopia | OHCHR
[19] ibid p 1
[20] ibid p 3
This report also records three large-scale killings in Oromia from June to September 2022, with the Oromo Liberation Army attacking towns and villages in West Wollega zone in western Oromia in which Amhara people were targeted and also reports of attacks against Oromo civilians.
West Wollega and Gimbi are approximately an eight-hour drive from Addis Ababa, [the applicants]’ home area. There is no suggestion she would return to western Oromia. The Tribunal could not locate information to support that people of Amhara ethnicity are targeted in Addis Ababa. Although Ethiopia is currently unstable with conflict between all of the ethnic groups, the Tribunal did not locate information to suggest that the conflict is likely to spread to the capital in the reasonably foreseeable future, that government forces are attacking rather than aligned with Amhara militants, or that the government is unable or unwilling to protect Amhara civilians in Addis Ababa.
DFAT reports that the security situation has deteriorated in parts of the country since 2018, and inter-ethnic clashes have increased significantly. DFAT reports that ethnic militias have proliferated in the states with weapons readily available but that Addis Ababa has largely been immune from this instability to date.[21] DFAT assesses that Amharas face a low risk of official discrimination based on their ethnicity including with respect to employment in the public sector.[22] Like most other ethnic groups, DFAT assesses Amharas face a moderate risk of violence in areas or states where they are a minority.[23] DFAT also assesses that overall federal and regional security forces are largely effective at maintaining law and order and in providing protection from threat by non-state actors particularly in major urban centres.[24]
[21] DFAT Country Information Report Ethiopia, 12 March 2020 at [2.50]
[22] ibid at [3.10]
[23] ibid
[24] ibid at [5.3]
While the historic ethnic tensions and the instability in northern and western Ethiopia give rise to reasonable subjective fear as interest groups raise the profile of ethnic tension, the Tribunal does not consider the available country information supports that there is a real rather than a remote risk of harm to [the applicant] because of her ethnicity if she returns to Addis Ababa.
Claims relating to her previous husband
[The applicant] claimed that she left Ethiopia because her previous husband was a [position] in the military and after the military government was removed people came and asked for information and documents.
[The applicant] said she did not have problems with the authorities in the one to two years during which she returned to Ethiopia from [Country 3] and did not identify any harm she would suffer as a result of her previous husband’s role in the military if she were to return to Ethiopia.
The Tribunal finds [the applicant] is not at risk of serious or significant harm because of her association with her previous husband, or because of her previous husband’s role in the military if she returns to Ethiopia.
Subsistence
[The applicant] said she does not know how she would get a job or eat if she were to return to Ethiopia, or how she would cope.
[The applicant] remains in contact with at least one of her siblings in Ethiopia and has provided her with financial support. She has previously worked as a [Profession 1] and currently works as a [Job 1]. She states she owns property within three kilometres of Addis Ababa, although states her home has been demolished.
DFAT reports that women typically have fewer employment opportunities than men because of lower education, societal discrimination and traditional norms and attitudes about gender roles.[25] It is reported single or divorced women may face greater economic challenges but not societal discrimination in urban areas.[26]
[25] DFAT Country Information Report Ethiopia, 12 March 2020 at [3.59]
[26] ibid at [3.61]
The Tribunal does not doubt [the applicant] will face considerable economic challenges and find it difficult to cope on returning to Ethiopia, however she has an ability to work and a work history and the ability to re-establish herself in Ethiopia. It is not satisfied on the available information that she will be unable to obtain work because she is Amhara.
CONCLUSION
[The applicant] is a [age]-year-old woman of Amhara ethnic origin. The Tribunal is not satisfied she has been, or will be, identified as a political activist or as holding anti-government views. It is not satisfied that she would be treated adversely by the government because of her ethnicity or any actual or imputed political views.
The Tribunal finds that [the applicant] will return to Addis Ababa or its surrounds. While there is a high level of distrust between ethnic groups in Ethiopia, and there has been an attack on Amhara people by non-state actors in western Oromia, ethnic unrest has not spread to the capital or its surrounds and the Tribunal finds there is no real chance or real risk that she would be harmed because of her ethnicity in Addis Ababa or the surrounding area.
[The applicant] has an ability to work and has previously worked in Ethiopia, albeit a considerable period in the past, [in Profession 1], and has a sister living in Addis Ababa. While re-establishing herself in Ethiopia will be very difficult, the Tribunal does not consider she will be prevented from earning a living or subjected to economic hardship that threatens her capacity to subsist because of her race, political opinion or an imputed political opinion.
The Tribunal finds that there is no real chance of serious harm or real risk of significant harm now or in the reasonably foreseeable future if she were to return to Addis Ababa.
APPLICATION OF THE LAW
The Tribunal is not satisfied [the applicant] has a well-founded fear of serious harm because of her race, political opinion or an imputed political opinion. It is not satisfied that [the applicant] meets the definition in s 5J of the Act of a well-founded fear of persecution. As a result, she is not a refugee as defined in s 5J of the Act and does not meet the requirements in s 36(2)(a) to be considered a refugee.
The Tribunal is also not satisfied that as a necessary and foreseeable consequence of being removed from Australia [the applicant] will suffer significant harm as defined in s 36(2A) of the Act, and she does not meet s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criteria in s 36(2), and the decision under review is affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Millar
Senior Member

ATTACHMENT – Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2898

11 April 2023

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