1836305 (Refugee)

[2021] AATA 1665

1836305 (Refugee) [2021] AATA 1665 (22 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836305

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:C. Packer

DATE:22 April 2021

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 22 April 2021 at 3:40pm

CATCHWORDS

REFUGEE – Protection Visa – Ethiopia – race – Tigrayan ethnicity –imputed anti-government political profile – single/widowed woman without a male protector – strong Eritrean connections – adverse political profile in Ethiopia – ongoing significant medical and mental health problems – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 22 November 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a woman aged [age], born in Ethiopia and a citizen of Ethiopia. The applicant arrived in Australia [in] April 2017, as a holder of a Visitor (FA-600) visa. She travelled on an Ethiopian passport issued [in] 2016 and valid to [2021].

3. On 18 September 2017 the applicant applied for a Protection (Class XA) 866 visa. On 11 July 2018 the applicant attended an interview with the delegate.

4. On 22 November 2018 the delegate refused the application.

5. On 11 December 2018 the applicant applied for review of the delegate’s decision.

6. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in attachments.

7. The applicant’s narrative is centred on her Tigrayan ethnicity and background, her links with Eritrea, and the Ethiopian authorities’ adverse interest in her and her close family. After considering her evidence in the application and the material before the Tribunal, I find that her imputed anti-government political profile together with her Tigrayan ethnicity and background, and status as a single/widowed woman without a male protector, when considered cumulatively, lead her to meet the refugee criterion.  My assessment follows.

   CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS

   Background

8. The applicant’s protection visa application provided some basic background information, and the applicant later supplemented this with further details in the review.

9. In the written application, the applicant stated that she was born in [Town 1], Tigray province. She is a widow. Her religion is Orthodox. She is from the Tigrinya ethnic group and speaks Tigrinya. She obtained her Ethiopian passport from the relevant authorities by providing her Ethiopian identity card as proof of her Ethiopian citizenship. She departed legally from Bole International airport [in] April 2017, and she had not previously travelled outside Ethiopia.

10. She has no education and gave employment details:

    • [Date] to August 1971, child living with parents on farm
    • August 1971 to September 2007, assisting family farm, marriage and raising children
    • September 2007 to 9 April 2017, in Addis Ababa, [doing Job 1]

11. She showed her family comprised six adult children, that included a daughter in Australia. In the review the applicant’s close family were most recently shown to be:

    ·Daughter, in Australia living with applicant

    ·Daughter, moved to [Town 1] after prison, had been regular contact via [social media app]

    ·Son, missing after prison, last contact mid-2017

    ·Son, [Country 1], regular contact via [social media app]

    ·Son and daughter, last known address in [Ethiopia], no contact for 14 years

    ·Brother and 2 sisters, location unknown

12. Country information[1] shows that Ethiopia is a multi-ethnic federal republic in East Africa. Its capital city, Addis Ababa, is a major diplomatic hub, as seat of the African Union and the UN Economic Commission for Africa. The DFAT report shows in part:

    ·In 1974, a Communist military junta known as the Derg (‘Committee’) overthrew the long-serving Emperor, Haile Selassie, and abolished Ethiopia’s monarchy. Rebel forces from the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a multi-ethnic alliance led by the Tigrayan people, ousted the Derg in 1991, ending Ethiopia’s civil war. The EPRDF and its successor, the Ethiopian Prosperity Party (EPP), have ruled Ethiopia since. In 1993, Eritrea broke away from Ethiopia and established its own state, rendering Ethiopia landlocked. A border dispute between the two countries triggered a two-year war (1998-2000), in which 100,000 people were killed. Ethiopia is one of the most drought-prone countries in the world, and drought-induced famines in 1973-74 and 1984-85 resulted in more than one million deaths.

    ·Ethiopia’s current constitution came into force in August 1995. It established a federal system of regional states delineated according to settlement patterns, language and identity (i.e. ethnicity). This method of delineation essentially makes Ethiopia an ‘ethnic federation’, whereby the largest ethnic groups administer their own states and operate with considerable autonomy from the federal government. Ethiopia has nine states: (1) Afar; (2) Amhara; (3) Benishangul-Gumuz; (4) Gambela; (5) Harari; (6) Oromia; (7) Somali; (8) SNNP; and (9) Tigray, and soon a 10th state for the Sidama people.

    ·The United Nations Population Fund (UNFPA) estimates Ethiopia’s population at 110 million. Around 70% is under the age of 30 (including nearly 40% under 14): only 4% are aged 65 or older. Ethiopia is ethnically and linguistically diverse, comprising more than 80 different ethnic groups and 100 languages. According to the most recent national census (2007), 10 ethnic groups have a population of one million people or more. The Oromo the single largest, at 34.5% of the population, followed by the Amhara (26.9%), Somali (6.2%), Tigrayan (6.1%), Sidama (4%) and Gurage (2.5%) peoples.

    ·Of Ethiopia’s states, Oromia is the most populous, with around 37% of Ethiopia’s total population, followed by Amhara (23.3%) and the Southern Nations, Nationalities and Peoples (SNNP - 20.4%), Somali state (6%), Tigray state (5.8%). Addis Ababa is Ethiopia’s largest city of around 4.5 million.

    ·Amharic is the official national language, although the government flagged in March 2020 its intention to grant similar status to the Oromiffa, Afar, Somali and Tigrinya languages. These languages already enjoy official status in the regional states in which they predominate. English is widely taught and spoken.

    ·Ethiopia’s economy has averaged double-digit growth over the last decade, making it one of the fastest growing economies in the world and the largest economy in East Africa. While consistently high growth has helped improve living standards and reduce extreme poverty levels, Ethiopia remains one of the poorest countries in the world.

    [1] The Department of Foreign Affairs and Trade report, DFAT COUNTRY INFORMATION REPORT ETHIOPIA 12 August 2020, [ of claims

13. The applicant claims to fear persecution in Ethiopia from the Ethiopian authorities. Her key claims in her application are that after she arrived in Australia she received news from distant relatives that the Ethiopian security forces had raided and searched her home without warrant or notice, and they had taken her two children (a son and a daughter) for interrogation. The authorities alleged that the applicant had been actively involved in subversive activities, and that her children were linked to the local opposition movement rumoured to be supported by Eritrea. She had lost contact with the two children, and while the son remains missing, the daughter was later contacted in [Town 1], Tigray.

14. She came from [a] border region between Ethiopia and Eritrea. She lived most of her life with her husband and children in the border towns where they experienced and witnessed constant mistreatment and torture, on the pretext of being government spies “of one or the other”. While discharging her maternal duties and living as a farmer at the towns, she suffered persistent harassment and threats including abduction of some children whom she suspected had been taken by Eritrean authorities for National Military service. Due to their social background, she and her family have been collectively labelled as government enemies and deprived of living in their country of birth.

15. Her siblings had also suffered similar consequences due to their social background and she had no contact with any of them for many years. All of her relatives at various times had been imprisoned and tortured and currently their whereabouts are not known to her.

16. The family had been uprooted following her husband’s “mysterious” killing in 1998, and the older children went to [Country 1] and other places. She had subsequently been unable to contact some of her children, with a son forcibly taken by Eritrean authorities. The husband’s death necessitated her relocation with two children, at first to [Town 1], and then to Addis Ababa, where she lived until travelling to Australia. While in these places she lived at various rentals and changed jobs from “too many domestic jobs to  [Job 1]”. The family home and property had been confiscated.

17. She fears for her life in Ethiopia. She fears the Ethiopian authorities will harm her because of her previous experience with various authorities and continued abuse, due to her social background (as a member of the border community) and identity, and suspicion by the Ethiopian government that she and her family had passed information adverse to the national security to Eritrean authorities. Subsequently, her family home has been raided and children arrested. She has been denied the right to live in the place of her ancestors.

18. A submission dated 3 November 2020 submitted in part:

    8. The applicant is a [age]-year-old Tigrayan woman who was born [in] the Tigray Region of Ethiopia. We note that counsellor report prepared by Ms B* records the applicant’s age as a [age]-years-old. We note that this was likely a typing error by the counsellor but if requested by the Tribunal, the author will seek to have the report resubmitted to the Tribunal reflecting the correct date as recorded in the applicant’s passport. As per the applicant daughter’s statement, the applicant was approximately [age] years old when she married an Eritrean man and moved across the Eritrean- Ethiopian border to live in a small village on the Eritrean side of the border. The applicant lived in Eritrea with her husband and six children for the next 30 years.
    9. In 1998 a battle for control over the border town of Badme sparked the Eritrean-Ethiopian border
    war (‘border war’). The ramifications spread over both communities resulting in a widespread loss
    of life and forced displacement of people on both sides of the disputed border. It was during the
    border war that the applicant’s husband lost his life and the applicant found herself as a single
    mother to six children. Like many civilians at the time the family scrambled to find safety but in the
    chaos of war and fear they separated; the applicant fled towards Ethiopia with her two of her
    children, [daughter] and [son], while her other four children fled on their separate paths to attempt to
    find safety.
    10. The applicant and her two children settled in Tigray, Ethiopia. We are unable to provide detail on
    this stage of the applicant’s life and her experiences in Ethiopia because of the inability to obtain a
    firsthand account from the applicant or evidence from anyone who lived with the applicant at the
    time. We can confirm through her daughter’s statement that the applicant never remarried and
    supported her children as a single mother. As a single mother the applicant is likely to have been
    subjected to negative social attitudes, discrimination by her community and the incapacity to take
    work that kept her away from her young children. The applicant had no formal education, was
    married off as a child herself, and was up until his death financial dependent on her husband. -The
    fact that she was able to survive on her own with two small children without support is a testament
    to the applicant’s capacity to endure significant adversity.
    11. Sometime in 2008 – the year is an approximate and calculated based on the applicant’s daughter’s estimated time her mother lived in Tigray – the applicant and her two children fled to Addis Ababa due to the growing tension in Tigray amongst the ethnic groups. It is important to note that we
    are unable to conclusively determine the reason the applicant fled the Tigrayan State to the capital.
    However, given the applicant was still a single mother at the time and would have likely built a
    foundation in Tigray for her children, but chose to flee to Addis Ababa, is indicative that her reasons
    for fleeing may be more meaningful that the information that is available at this time.
    12. The applicant’s life in Addis Ababa was fraught with dangers due to her profile: she had a mixed
    family background, being a widow to an Eritrean man and raising mixed raced children, having
    lived in Eritrea for most of her adult life and liaising with other Eritreans in her home in Addis Ababa.
    As a result, the applicant found herself part of a reactionary attempt in Ethiopia to rid itself of
    Eritreans and any Ethiopian citizen who may be affiliated with, or be a spy for, the Eritrean
    government. The applicant has previously submitted, and maintains, that she was subjected to
    constant police raids on her house which involved questioning and summons to the police station
    based on unsubstantiated allegations of spying against the Ethiopian government.
    13. Sometime in 2014-2015 the applicant was detained on charges of working as a spy for the Eritrea
    government. In her department interview she confirmed that she was imprisoned and interviewed
    in [Town 2] for a period of two weeks but was unable to provide further information to the
    Delegate. From the applicant’s daughter’s statement, we understand that the applicant was later
    released from prison without a conviction. Shortly afterwards the applicant was re-detained and
    imprisoned and later released without any charges or convictions to her name. It is unclear whether
    any formal charges had been filed against the applicant and there is no evidence that she had been
    brought before a judge. We are unable to provide the length of time of each detention period, her
    experience while detained or the circumstances of her release due to the applicant’s inability to
    discuss that period of time. However, country information is indicative of the poor conditions of
    prisons in Ethiopia and the widespread abuse about that occurs in prisons in Ethiopia.
    14. On 21 April 2016 the applicant lodged a visitor visa application to come to Australia. At the time of
    the application the applicant’s daughter was unaware of the extent of harm her mother had
    experienced in Ethiopia and anticipated her mother visit was to her to help the applicant’s daughter
    with the birth of her fourth child.
    15. On [*] 2017, following a successful review of the decision not to grant the applicant a visitor
    visa, the applicant arrived in Australia. However, some weeks after she arrived in Australia, events
    took place at her home in Ethiopia which changed everything for the applicant, making her too
    afraid to risk going home. Both her children were arbitrarily detained by the police on two separate
    occasions for terrorist and anti-government actions and held without charge for many months. Both
    her children were able to escape but the applicant’s son [*] has never returned home after his
    escape. It was the incidents with her children and the fear it incited within her that motivated the
    applicant to seek out the assistance of a migration agent to apply for a protection visa on 18
    September 2017.

19. In Australia the daughter’s statement dated 31 October 2020 discussed the applicant’s life in Ethiopia and after her entry to Australia. Her key points are:

    ·The daughter had made a statement because the applicant does not have the capacity to provide a statement.

    ·The applicant and daughter had a bad experience with their first agent. Subsequently, on 23 June 2020 the agent was suspended for six months by the Office of the Migration Agents Registration Authority. They had hired the agent in June 2017, the applicant’s visitor visa ceased on 9 July 2017, but the agent had not lodged the application until September 2017. [para 4 to 15]

    ·The applicant “was employed [in Job 1] but also worked in [workplaces] at the time of her tourist visa application to come to Australia. We never told the lawyer that my mother was rich or earned ‘well above average income’. There were people who were dependent on my mother but not to the extent written in the visitor visa application.” [para 17]

    ·My mother explained at the interview that she had not had contact with either of her two children since she came to Australia. Since the Department interview my mother has reconnected with the daughter who she speaks to on a messaging app called [social media app]. We still have no idea where the son is. [para 18]

    ·“In the Department interview my mother said she found out from relatives that security forces raided her home in Addis Ababa without any notice or warrant. The daughter explained to me that they were home in Addis Ababa when the authorities entered and threatened them. They had to hand over their money and documents. They interrogated my siblings for my mother’s whereabouts. I believe they used force on my siblings but the daughter could not give much detail - this is because the government can track our calls, so we only talk about how we are going and we never discuss political matters.” [para 19]

    ·In Addis Ababa my mother and my siblings faced problems with the Ethiopian government. My mother was suspected to be a spy because of her Eritrea connections – she lived in Eritrea, married an Eritrean man and had children with him. My siblings were mixed raced with both Eritrean and Ethiopian blood. My mother can speak the same language as Eritreans and her Eritrean friends would regularly visit my mother’s home. [para 40]

    ·The authorities would come to her home and question her about her involvement with the Eritrean government. Her house had been searched lots of times and she had been summoned to the police station on different occasions. At one stage my mother was arrested and imprisoned because of her suspected involvement with Eritrea but there was never any evidence of this. My family has never been a part of any political group or movement. [para 41]

    ·Sometime four or five years ago, my mother was imprisoned in Addis Ababa as the government was suspicious that she was harbouring Eritreans and working as a spy for the Eritrean government. The court eventually cleared my mother of any charges but as soon as she was released, she was charged again in order to keep her in custody. She has been in prison two different times, but I do not know for how long. My mother gets nervous if I try and talk to her about that time. [para 44]

    ·I believe my mother would be at risk if she returned home because of her family and social connections to Eritrea which is seen as evidence of her anti-government intentions by the Ethiopian government. She has already been accused of working with the Eritrean government and imprisoned without evidence – there is no guarantee it will not happen to her again. Her mental health is not good, and she would not be able to survive if this happened to her again. [para 45]

1. In submissions the applicant claims she has a well-founded fear of persecution in Ethiopia arising from:

   ·Political opinion: Imputed anti-Ethiopian government political opinion due to her family profile as mixed Ethiopian-Eritreans, past residence in Eritrea and her associations with Eritreans in her community.

   ·Membership of a particular social group, of failed asylum seeker returning to Ethiopia; of Single woman in Ethiopia; and of woman with a mental health condition in Ethiopia.

   Evidence

2. The evidence before the Tribunal includes the following material:

   ·the applicant’s Protection visa application form lodged on 18 September 2017, which includes her reasons for seeking protection in Australia

   ·Ethiopian passport pages

   ·the Protection visa decision record (‘delegate’s decision’) dated 22 November 2018, which is the subject of this review

   ·the application for review

   ·medical information and reports

   ·submissions, and in particular submission dated 3 November 2020

   ·statement from the applicant's daughter dated 31 October 2020

   ·list of relatives and addresses

   The delegate’s interview on 11 July 2018

3. The delegate’s decision of 22 November 2018 discussed the evidence given at the interview on 11 July 2018:

   During the PV interview, the applicant was questioned about her background and history. I found the
   applicant’s evidence to be very vague in relation to some aspects of her life and circumstances,
   especially relating to dates.The applicant claimed that she was married when she was about [age] years old and left the family farm to move to a farm in the Ethiopian-Eritrean border area with her husband. The applicant could not be specific about where she lived during this period. However, as she claims that four of her children were born in [a town], I conclude that the farm was located in Eritrea. About 20 years ago, in 1998, ago her husband was killed. She claims that her husband was taken at night and killed. She said that she was not sure who took her husband; it might have been the Eritrean government or military. Four of her children also disappeared at around that time. These four children were lost, and she does not know what happened to them, apart from [a named child], who came to Australia. The applicant claimed that after her husband was killed she continued to live on the farm for a further ten years. She moved back to Ethiopia about ten years ago with two of her children, Daughter1 and Son1. The applicant said that she has two siblings in Ethiopia; one brother lives in [a town] and two sisters in [Town 1]. She said she is not sure if they are still there or not.

   It was put to the applicant that in her written application she appeared to claim that she lived at various rentals and changed employment from many domestic jobs to [Job 1]. It was put to her that this was not consistent with her claim that she worked at one job for nine years and appears to have lived in the same place. In response, she said that she was working in [workplaces].

   During the PV interview the applicant was asked what made her decide to remain in Australia, rather
   than return to Ethiopia. She replied that there is a disagreement and conflict between the two
   governments and she does not know where her children are, and she does not want to return. It was
   put to her that the disagreement between the two governments has been going on for a long time. She was asked again what specifically happened to make her change her mind and stay in Australia. She replied that she was imprisoned and released many times and she does not have a nationality, and that’s why she wants to stay in Australia. When further questioned, she said that she lost her children and husband. When asked again what happened to make her decide to stay in Australia, she repeated that there is disagreement between the governments and that she is in a bad condition. She also said that she had a health issue.

   The applicant was asked about her children, Daughter1 and Son1, with whom she was living in Ethiopia prior to her departure. She said that she tried to contact them but there was no answer. She spoke to her friend and neighbour [Mr B] about her children. [Mr B] told her that after she left, her children were being intimidated. She added that she does not know if they are in prison or somewhere else. She said that she has also lost contact with [Mr B] now. The applicant claimed that [Mr B] told her that the police interviewed Daughter1 and Son1, asking them questions such as ‘where are you from?’ and ‘what are you doing?’ The applicant was asked how [Mr B] would know what questions were asked, and she said that they met with her after the interview.
   The applicant was asked why she believed that the police were interested in Son1 and Daughter1. She said that the police asked them if they come from Eritrea, and also asked them where she (the applicant) was and if she had left. The applicant was asked why the police would be interested in her. She replied that it was because she comes from Eritrea. She was asked if there were other reasons why the police would be interested in her, and she replied that there were not.

   The applicant was asked if she had ever been harmed by the authorities in Ethiopia. She said that she was in prison in a place called [Town 2]. She said that she was asked questions such as ‘how did you come here? and ‘how was your husband killed? and ‘how were your children lost?’ This happened ten years ago, when she crossed the border and returned to Ethiopia. She said that she was asked about the killing of her husband and whether the Ethiopian or Eritrean governments were responsible. I asked the applicant, if apart from questioning, they did anything to her. She repeated that they questioned her about the death of her husband and wanted to know who killed him.
   The applicant was asked to provide more information about her claim that she was imprisoned in
   [Town 2]. She repeated that she was imprisoned and interviewed in [Town 2]. She said that she was imprisoned for two weeks in Ethiopia after her return, and was held so she could be interviewed. She added that even when she was in Eritrea the government interviewed her many times. They asked her if she was giving food to the Ethiopian Army because she is Ethiopian.

   The applicant was asked why she believed the authorities were interested in her and her children. The applicant said that the authorities were interested in them because they resided in and had links with Eritrea. She said that her children were interviewed by the authorities many times. When asked if any of her family members were harmed by the government, she said that her son [lost] his fingers when he stepped on a land mine and it exploded. When asked if any other of her family
   members suffered any harm in Ethiopia, she replied that they had not.

   The applicant was asked if she was involved in any political activities during the last ten years she had lived in Ethiopia. The applicant said that she was not involved in any political activities or in any
   community activities or groups. She also said that was never involved in protests. She attended
   church, but spent most of the time at home, apart from going to work and visiting neighbours.

   Her application for a Visitor visa

4. Evidence before the Tribunal also includes information in the applicant’s application for a Visitor visa and AAT review of the delegate’s refusal decision.

5. The applicant applied for a Visitor (FA-600) visa on 21 April 2016. A delegate refused to grant the visa on 4 July 2016 on the basis that the applicant did not meet cl.600.232 because she had not provided evidence of the relationship between her sponsor, who she claimed was her daughter, and herself. The applicant’s daughter in Australia sought a review by the Tribunal (differently constituted).  The Tribunal received a DNA Parentage Testing Procedure report, dated 7 March 2017, that found the Relative Chance of Maternity was 99.99991%. On that basis, the Tribunal remitted the application. 

   Her health and mental health

6. Information before the Tribunal shows the applicant has significant medical and mental health problems.

7. A medical report [dated] 25 April 2018 has key points:

   ·The applicant had consulted for the last few days. She has a ‘bad cold’ with a cough; sore chest; and hard to talk, sleep and do things. Antibiotics had not made her better, and she was prescribed steroid tablet/s to open her lungs. She is not able to attend the interview on 26 April 2018.

   ·She is also very depressed, sad and stressed; ‘unable to communicate and unable to say what is wrong with her’. 

8. The applicant was then interviewed on 11 July 2018 by the delegate. Following the interview, an email on 27 July 2018 from the applicant (written with the assistance of [Organisation 1]) stated in part:

   Based upon correspondence with the Department of Home Affairs, I believe a request has been made for me to send in evidence of my dementia and other psychological conditions as evidence of the basis for an error made during my application interview with the Department.

   I am formally requesting an extension of the current deadline (that I believe expires in four days).

9. Then by email on 10 August 2018 the applicant (written with the assistance of [Organisation 1]) stated in part:

   In my interview with the Department I mistakenly referred to the fact that I have two passports when in fact I was thinking of my ID card and my passport. My mistake was in part due to my dementia and other psychological conditions.
   I have attached evidence in the form of statements from two clinical psychologists detailing the extent of my symptoms.

10. The applicant provided two medical reports. A medical report [dated] 19 May 2018 has key points:

    ·There had been language difficulties at the consultation, due to the daughter and daughter’s friend interpreting in Arabic, Ethiopian language and English.

    ·Since arrival in Australia, and worsening in the past year, the applicant had been withdrawn and depressed; not doing much; does not sleep at night; needs encouragement to eat and shower; slow in her actions; she does not involve herself with the grandchildren. She has been repetitive in some words, slightly irritable and angry, withdrawn in an absent-minded state, talks to herself, and shows mild memory loss. She speaks in a slightly repetitive manner of the traumatic experiences she had in Ethiopia.

    ·She sometimes complains of [medical condition symptoms] , but these do not seem to have an organic basis as her blood tests and a CAT scan seem to be within normal limits.

    ·He observed she presented as a middle aged woman who was preoccupied; displayed psychomotor retardation and walked with encouragement, and sat without moving.

    ·‘She seemed to be lost, and preoccupied for most of the time, but on specifically speaking to her, and getting her attention she was able to focus for a period of time but tended to become preoccupied quite soon.’

    ·‘Her speech was restricted to one or 2 words with great encouragement otherwise she would not speak.’ She did admit to traumatic memories.

    ·The overall summary states she seems to be someone with a post-traumatic experience and perhaps a comorbid post-traumatic stress disorder and a major depressive disorder. She possibly has comorbid psychotic symptoms in addition to the minor depression. She might have an underlying psychotic disorder which has not been able to be diagnosed because of her lack of communication.

    ·Recommended to start treatment for depression and post-traumatic stress disorder with [antidepressants]..

11. A medical report ([name deleted], clinical psychologist) dated 17 July 2018 has key points:

    ·The applicant was referred by her GP in the context of depression and anxiety.

    ·Whilst in Australia she seems to have developed symptoms of dementia and psychosis in the context of severe worry that her two children had been ‘missing in war for the past year’.

    ·This further compensates her trauma ‘that for the past ten years she has had no contact with three of her sons which have also disappeared without a trace.’

    ·‘It was difficult to obtain comprehensive history from [x] as she displayed negative symptoms associated with dementia, however from her daughter her symptoms are consistent with someone suffering Post Traumatic Stress Disorder and Major Depressive Disorder.’

    ·She would need to see a neurologist or geriatrician to confirm the diagnosis of dementia.

    ·Gave the opinion that she would need to stay in Australia to receive appropriate treatment.

12. A submission by [Organisation 1] dated 3 November 2020 to the Tribunal submitted in part that they acted for the applicant on a pro bono basis and:

    It is our position that the applicant’s mental health renders her incapable of participating in an interview with the Tribunal, this is supported by two recent reports prepared by the applicant’s counsellor and psychiatrist.

13. A statement dated 31 October 2020 by the daughter [discussed] the applicant’s mental health:

    21. My mother struggles with a lot of things that would come easily to other people. She cannot recognise her surroundings and moving from place to place is scary for her. On some days, she can follow basic instructions and other times she will completely forget what I told her the previous day. Some days my mother will say something and the next moment she will deny she said anything.
    22. My mother gets confused and overwhelmed very easily. Even when we drive home it takes her a little while to realise she is back at home. One time she wandered out of the house and I had to call her to find out where she had gone. She told me she was really far from the house, but I ended up finding her very close by.
    23. I have been taking her to her psychologist appointments for more than a year now. Despite the coronavirus pandemic we continue to attend appointments. The appointments have helped her, but she still needs a lot of help from me.
    24. I cannot ask her about her past anymore because she becomes anxious and angry. She also reacts this way when I remind her of any upcoming appointments too. In the past when I tell her we have an appointment she becomes so anxious she cannot sleep. To avoid this problem, I no longer give her reminders and I drive her straight to her appointment without notice so I will not stress her out.
    25. My mother takes medication for sleep, anxiety and stress. From the best of my memory she started the medication sometime in 2017 – but I am not sure of the exact date. I believe that my mother’s mental health made it impossible for her to explain the reasons why she was seeking protection in Australia at her Department interview. When she was asked the simple question of why she applied late for protection visa she could not explain herself - even though she has been so upset about how poorly the lawyer managed her protection visa application and she knew he did not do a good job.
    26. I do not think my mother could explain why she is afraid to return home to Ethiopia because of her mental health and it is not possible for her to give a statement. As such, I would like to provide a summary of my mother’s life to the best of my knowledge.

14. A medical report by [a clinic] ([name deleted], Counsellor) dated 16 October 2020 has key points:

    • The applicant attended three appointments, all in 2019. The writer had been unable to complete a comprehensive psychosocial assessment given the applicant’s limited speech and deficits in memory. In February 2020 a referral was made to [named clinic], and the writer accompanied the applicant on 11 and 25 March 2020. The writer had telephone consultations with [Dr C] on 22 April and 3 June 2020. The report listed the sources of information reviewed.
    • The report discussed the applicant’s psychosocial functioning. Her daughter reports that her mother requires prompting with daily tasks of showering, taking her medication, and eating. She reports the applicant is unable to care for herself independently.
    • The applicant described difficulties with her episodic memory which the writer observed, for example she could not recall when she got married, the number of siblings she has or the year her husband died. She also reported difficulty with short term memory, for example she shared that she forgets the content of conversations shortly after they occur. She expressed concerns about her capacity to purposefully participate in an interview regarding her protection claim given her deficits in memory and distress she experiences when speaking about pre arrival traumatic events.
    • The writer summarised that the applicant’s presentation is consistent with Major Depressive Disorder, as outlined in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, 2013). While a diagnosis of Post Traumatic Stress Disorder has been provided by other treating professional these symptoms could not be elicited in detail during the brief treatment period with the writer.
    • The writer stated the applicant requires further medical investigation to assess the decline in her functioning and memory. Currently she does not have access to Medicare which will hinder access to appropriate care. Based on observations during sessions at [a clinic], and consultation with Dr. [C], the deficiencies in her memory, recall and comprehension are likely to significantly impair her capacity to provide evidence regarding her Refugee Status Determination. Contact with the applicant has ceased as she is not able to appropriately engage in trauma focused counselling. She continues to engage with a clinical psychologist for ongoing psychological treatment.

15. A report by [a clinic] ([Dr C], Psychiatry Registrar) dated 14 July 2020 has key points:

    • The applicant had four consultations between March and June 2020. The writer discussed the applicant’s current presentation and treatment.
    • The applicant completed a short cognitive screening instrument the Rowland Universal Dementia Assessment Scale (RUDAS) and scored 17/30 indicating possible cognitive impairment with deficits across multiple domains including recall and judgement. Evidence of potential cognitive impairment was further supported by collateral reporting from her daughter who described fluctuating but progressive decline in memory and function requiring prompting and supervision for activities of daily living such dressing and showering.
    • The report outlined prognosis and opinion. The applicant previously presented with symptoms of MDD and PTSD relating to her experiences in Ethiopia, but these symptoms have not been prominent in recent psychiatric assessments. She previously reported symptoms consistent with PTSD such as fearfulness and nightmares and symptoms of depression including low mood and guilty ruminations. However, with current medication and adequate support at home from her family, she now reports resolution of these symptoms.
    • The writer recommends, first, continuation of current antidepressant therapy with monitoring by her general practitioner with consideration of rereferral to psychiatry or aged psychiatry services as required in future. Second, that her general practitioner also pursue further investigation, including neuroimaging, and further assessment including consideration of referral to geriatrician or memory clinic; she remains at risk of further decline in her cognition warranting ongoing primary health monitoring and consideration of referral to appropriate services as outlined above.
    • Third, with regards to the impact of her “mental state on her ability to participate in the refugee status determination process, her level of cognitive impairment requires further investigation and assessment as detailed above. However, it is my opinion that, based on her initial cognitive screening including deficits recall and judgement and her history of progressive cognitive and functional decline, her current impairment would have significant impact on her ability and capacity to engage in future hearings or to provide evidence.”

    Conclusion - Her health and mental health conditions

1. In sum, I have given appropriate weight to the expert reports provided. Considering the reports and information, together with the applicant’s evidence and submissions, I accept that the applicant has ongoing significant medical and mental health problems and declining mental health.

   Assessment of claims: credibility

2. The applicant claims to be a national of Ethiopia. She produced her Ethiopia passport to the delegate and the Tribunal sighted a copy. All the available evidence, including the applicant’s oral evidence at the delegate’s interview and familiarity with Ethiopia, supports her claim to be an Ethiopian national. Ethiopia is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing her claims against the complementary protection grounds. Having considered the material before the Tribunal, I accept she has the claimed identity.

   Her health and mental health

3. I accept that the applicant has a history of progressive cognitive and functional decline, that she is now not able to appropriately engage in trauma focused counselling, and crucially that her condition would significantly impair her capacity to provide evidence at a hearing.

4. A submission of 21 April 2021 discussed the progress of the applicant’s daughter’s application with VCAT in which the daughter has applied for guardianship. Nonetheless, I decided not to await the outcome of the guardianship application and so further delay this review, as the medical information already before the Tribunal satisfies me that the applicant now has scant ability to participate in a Tribunal hearing and that her condition will not improve in the reasonably foreseeable future. Based on the information before the Tribunal that includes the applicant’s evidence at the delegate’s interview, and the evidence of the daughter, there is a large volume of information and evidence that enables me to proceed to an assessment of the applicant’s claims.

   Her residence in Ethiopia

5. Having considered the applicant’s evidence at the delegate’s interview, together with the evidence of the daughter in Australia, I find the applicant had in the past been a credible witness. I accept she is of Tigrinya ethnicity having been born [near] the Eritrean border. She married an Eritrean and the family lived in Eritrea in the border region. In 1988 her husband was killed by Eritrean forces and she fled with two children to Tigray in Ethiopia where she lived until moving to Addis Ababa in 2008.

6. I accept that in Addis Ababa she and the two children were considered to be connected with Eritrea- she had lived in Eritrea, married an Eritrean man and had mixed race children, spoke the same language as Eritreans and had Eritrean friends who had visited- and this led to her facing significant and ongoing problems with the Ethiopian government. I accept that the applicant had been detained and imprisoned on two occasions and would not discuss with her family what occurred in prison. I accept that after she departed Ethiopia the authorities detained and imprisoned the two children in Addis Ababa for a significant period, and the daughter moved to Tigray and the son disappeared. I accept she has few close family in Ethiopia, and she has lost contact with all bar a daughter in Tigray.

   Conclusion

7. I have assessed whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if she returns to Ethiopia, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future.

8. Having considered the claims and evidence I find that the applicant is an Ethiopian national. She is an elderly and infirm woman and a widow, of the Tigrinya ethnic group and she speaks Tigrinya. She is also considered to have a close connection with Eritrea. She follows the Orthodox Christian religion. She has no education and while she previously worked in Addis [Ababa], her old age and significant ongoing health and mental health problems mean that she would be unable to care for herself, let alone work, if she returns to Ethiopia.

9. She arrived in Australia as a visitor for the purposes of visiting her daughter and grandchildren. She has mainly lived with the daughter since arrival and she has mainly relied on the daughter for financial support and support in her day-to-day living.

10. Addis Ababa, the capital of Ethiopia, is where she last resided and so I find it is most likely that if she returns to Ethiopia she would return to Addis Ababa.  

    Her return to Addis Ababa

11. The applicant is an Ethiopian national who last departed Ethiopia legally with a genuine Ethiopian passport that expired [in] 2021. She has evidence of her Ethiopian nationality and she would be able to seek a fresh passport or travel document from the Ethiopian Embassy in Canberra. I am satisfied the applicant will be able to travel to and enter Ethiopia.

12. In the DFAT report, DFAT broadly assesses that “under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds”.

13. However, there has been a significant political, social and security development in Ethiopia since the DFAT report was published. In late 2020 there has been an armed conflict between the Ethiopian armed forces and the Tigray state, with significant loss of life and an ongoing humanitarian crisis. An authoritative February 2021 briefing by International Crisis Group[2] states in part:

    [2] International Crisis Group: Crisis Group Africa Briefing N°167 Nairobi/Brussels, 11 February 2021, Finding a Path to Peace in Ethiopia’s Tigray Region

    What’s new? After weeks of fighting in Ethiopia’s Tigray region, federal troops removed the regional government and declared victory. Yet thousands have died, hundreds of thousands are at risk of starvation and the conflict continues. Addis Ababa has established an interim administration, but ousted Tigrayan politicians say they will fight back.

    Why did it happen? Relations between Addis Ababa and Mekelle tanked after Prime Minister Abiy Ahmed took office in 2018 and Tigray’s leaders lost federal power. Tensions spiked when Tigray defied central authority by holding regional elections in September, culminating when Tigrayan forces captured the national military command in the region, triggering federal intervention.

    Why does it matter? The conflict has poisoned relations between Tigrayan and other Ethiopian elites and inflamed public opinion in Tigray against the federal authorities, who may well struggle to administer a restive region. If Addis Ababa’s energies are drained by enforcing its rule on Tigray, other Ethiopian ethno-nationalist forces may be emboldened.

    What should be done? To get Tigray’s public on side, Ababa Ababa should ensure that Eritrean and Amhara regional forces that participated in the intervention withdraw. It also should urgently allow aid to reach all Tigrayans who need it. Ultimately, inclusive dialogue is needed to address federal-Tigray disagreements and wider disputes over regional autonomy.

    Overview

    Following weeks of conflict, Ethiopian federal forces declared victory over the northern Tigray region’s leadership after taking the capital Mekelle on 28 November 2020. The army says it is mopping up, although ousted Tigrayan leaders and the UN say fighting is still widespread. The war has killed thousands and displaced maybe a third of Tigray’s population amid reports of atrocities by all sides. More than 4.5 million people in Tigray reportedly require emergency food aid and hundreds of thousands could starve. Federal troops are backed by Amhara factions claiming areas they say Tigray annexed in the early 1990s. It is now apparent that Eritrean troops intervened to support Ethiopia’s army, though both Asmara and Addis Ababa deny it.  …

    The war between Addis Ababa and Mekelle was driven by bitter divisions over power sharing. Tigray’s leaders lost much of the disproportionate federal influence they long held, and which incurred the resentment of other political elites and many Ethiopians, after anti-government protests paved the way for Prime Minister Abiy Ahmed to take office in 2018.  …

    The federal military intervention removed the TPLF administration from the seat of power in the space of a month, with Addis Ababa establishing a provisional replacement in Mekelle from whence the TPLF leadership fled. It has come at great cost, however, and most wanted Tigrayan leaders are still at large despite some of them being killed (including a former foreign minister) and arrested in recent weeks. Still, a large majority of Ethiopians outside Tigray, including non-Tigrayan opposition leaders and some from the region itself, appear to support federal actions in the region. Many endorse Addis Ababa’s view that the TPLF was responsible for abuses when in power and has since sponsored ethnic conflicts in order to undermine reforms. The federal government says it will rebuild infrastructure damaged during the intervention and restore public services that were interrupted. A federal state of emergency is in place until early May in Tigray and, so far, no elections are scheduled for the region though they are set for 5 June everywhere else in the country.  …

    The war has killed thousands, including civilians at the hands of federal and Eritrean troops or Amhara and Tigrayan militiamen. It may have displaced more than two million people inside Tigray and prompted almost 50,000 mostly Tigrayan refugees to flee into Sudan, according to the interim administration and the UN, which last month reported a “dire” humanitarian situation. In Tigray, 1.6 million people depended on aid even before the war. The conflict has now cut off many of them from that assistance, and interim Tigray rulers appointed by Addis Ababa now say the number in need is more than 4.5 million, around three quarters of the region’s population.  …

    There is also renewed state intolerance of dissent. [footnote 75 “Arrest of cameraman in Ethiopia signals wider crackdown”, The New York Times, 30 December 2020; “Lidetu bailed after charges of trying to topple state by penning transition plan”, Ethiopia Insight, 14 December 2020.]

14. Other reports show that Tigrayans are under significant pressure from the authorities and the wider community throughout Ethiopia including Addis Ababa:

    a) Freedom House, 3 March 2021: [ August 2020 general elections were postponed due to the COVID-19
    pandemic, posing an obstacle to the country’s democratic transition. Moreover, Abiy’s
    ruling Prosperity Party—a reconfiguration of the ethnoregional coalition that ruled
    Ethiopia since 1991—has partly reverted to authoritarian tactics, jailing opposition
    leaders and limiting media freedom in the face of growing regional and intercommunal
    violence. Most notably, the Ethiopian military has been engaged in a prolonged conflict
    with the security forces of the Tigray Region in a bid to arrest senior members of the
    Tigrayan People’s Liberation Front (TPLF).”
    “In November, the dispute between the federal government and the TPLF escalated
    into violence when Abiy ordered the deployment of federal troops into the Tigray
    Region after TPLF forces had attacked the Ethiopian military’s Northern Command.
    The ensuing violent conflict involved a number of militia groups, as well as special
    police forces, and displaced thousands of refugees to Sudan. While allegation of the
    massacre of civilians and of rape by federal and regional security forces have trickled
    out, the number of casualties is unknown, as the flow of information in and out of
    Tigray was severely disrupted by internet and telecommunications blackouts and
    interference with journalists trying to cover the unrest.”
    “However, Ethiopia’s political party landscape underwent major changes in 2020,
    particularly after the postponement of elections in March and the assassination of
    Oromo musician Hachalu Hundessa and its aftermath in June. The deadly attacks on
    members of ethnic minority groups in parts of Oromia resulted in a crackdown on
    political parties and leaders. Among these are prominent opposition politicians Jawar
    Mohammed, Bekele Gerba, Eskinder Nega, and Lidetu Ayele, who were all arrested for
    alleged involvement in the violent aftermath of Hachalu’s assassination. Public protests
    in support of these individuals have been suppressed violently. Most of the most vocal
    opponents of the government were in jail at year’s end.”
    “The gains made in 2018, including the release of political prisoners and lifting of bans
    against prominent government critics in the media and other sectors, had fostered a
    more open atmosphere for free expression among ordinary people. However, following
    the assassination of Hachalu Hundessa, arbitrary arrests, extrajudicial activities,
    widespread surveillance in parts of Oromia, and nontransparent court proceedings
    have once again led individuals to be more reluctant to express political views openly.
    This has been further escalated by the violent conflict in the Tigray Region, where a
    state of emergency proclamation has led to a greater wariness of surveillance.”
    “Most notable, however, is the conflict in Tigray, which at year’s end led to the fleeing
    of 50,000 people and an unknown number of deaths, estimated likely to be in the
    thousands. Security forces, both regional and federal, have been accused of war crimes, including the massacring of civilians and rape.”

    b) Amnesty International, 26 February 2021:
    [ troops fighting in Ethiopia’s Tigray state systematically killed hundreds of
    unarmed civilians in the northern city of Axum on 28-29 November 2020, opening fire
    in the streets and conducting house-to-house raids in a massacre that may amount to
    a crime against humanity, Amnesty International said today in a new report.”
    “Amnesty International spoke to 41 survivors and witnesses – including in-person
    interviews with recently arrived refugees in eastern Sudan and phone interviews with
    people in Axum – as well as 20 others with knowledge of the events. They consistently
    described extrajudicial executions, indiscriminate shelling and widespread looting after
    Ethiopian and Eritrean troops led an offensive to take control of the city amid the
    conflict with the Tigray People’s Liberation Front (TPLF) in mid-November.”
    “Satellite imagery analysis by the organization’s Crisis Evidence Lab corroborates
    reports of indiscriminate shelling and mass looting, as well as identifies signs of new
    mass burials near two of the city’s churches.”
    “The evidence is compelling and points to a chilling conclusion. Ethiopian and Eritrean
    troops carried out multiple war crimes in their offensive to take control of Axum. Above
    and beyond that, Eritrean troops went on a rampage and systematically killed
    hundreds of civilians in cold blood, which appears to constitute crimes against
    humanity,” said Deprose Muchena, Amnesty International's Director for East and
    Southern Africa.”

    c) UN Office for the Coordination of Humanitarian Affairs, Tigray Region
    Humanitarian Update Situation Report, 8 March 2021:
    [ humanitarian situation in Tigray remains extremely concerning, while reports of
    intensified fighting and lack of assistance in rural areas continue to drive displacements
    of people across the Region.”
    “People in Tigray and humanitarians on the ground continue to report serious violence
    against civilians, including extrajudicial killing, rapes and other forms of gender-based
    violence, as well as random house searches, widespread looting of private and public
    property and destruction of farming equipment, allegedly by various armed actors. The
    UN High Commissioner for Human Rights, Michelle Bachelet, in a statement published
    on 4 March, informed that her office has been able to corroborate information about
    some of the incidents that occurred in November last year, indicating indiscriminate
    shelling in Mekelle, Humera and Adigrat town, and reports of grave human rights
    violations and abuses including mass killings in Axum, and in Dengelat in central Tigray
    by Eritrean armed forces.”
    “According to the UN Human Rights body, a preliminary analysis of the information
    received indicates that serious violations of international law, possibly amounting to
    war crimes and crimes against humanity, may have been committed by multiple actors
    in the conflict, including the Ethiopian National Defence Forces, the Tigray People’s Liberation Front, Eritrean armed forces, and Amhara Regional Forces and affiliated
    militia.”

    d) International Crisis Group Africa briefing number 167, 11 March 2021:
    [ officials have taken several apparently discriminatory measures amid the war
    fervour and deepening polarisation. Some ministers have spoken out against ethnic
    profiling, which is welcome. Still, authorities have detained numerous Tigrayan military
    officers, including those manning peacekeeping missions. Addis likewise has recalled
    some Tigrayans working at embassies abroad, and federal police managers have told
    some Tigrayans not to come to work. Police in Addis Ababa have raided Tigrayans’
    residences, detaining hundreds, while federal authorities have asked Ethiopians to
    present their local identity cards before they fly abroad, and then blocked some
    Tigrayans from leaving. The central bank suspended accounts opened at branches in
    Tigray. The Attorney General’s Office froze assets of 34 Tigrayan companies operating
    under a conglomerate with TPLF ties and the finance ministry created a new trustees’
    board for them. While federal officials assert that they are targeting only TPLF leaders
    and sympathisers, many Tigrayans disagree.”

    e) Foreign Policy, 8 March 2021: [ November 2020, as war broke out in Ethiopia’s northern Tigray region, the scale
    of the suffering was already apparent to anyone on the Ethiopian-Sudanese border.
    As the Ethiopian National Defense Force and allied Amhara militias and Eritrean
    soldiers swept through the region in a pincer movement, Tigrayans began to flee en
    masse, walking for days without water to get to safety in neighboring Sudan.
    Hundreds of refugees made an almost biblical sight as they traversed the Hamdayet
    River crossing that separates the two countries. Small boats laden with men, women,
    and children pushed against the current, ferrying people to safety every few minutes.”
    “At one point, dozens of refugees fresh from the desert march and fearful of disclosing
    their identities started to shout out names of people they’d seen killed. One of us,
    reporting at the border, wrote down six names before the cacophony became
    overwhelming.
    The refugees’ testimonies all pointed to indiscriminate artillery fire on civilian areas,
    massive looting, machete-wielding ethnic militiamen, and summary executions.
    Around 50,000 people from bordering Tigrayan towns made it into Sudan before the
    Ethiopian army began stationing men in federal army uniforms at intervals along the
    border, sealing it off.
    Some refugees said they had been threatened with death if they kept going. “They
    threatened to cut our heads off if we kept trying to leave Tigray,” one mother of five
    said in late November.
    Online trolls and officials in Ethiopia’s capital of Addis Ababa then launched a
    systematic campaign to discredit refugees’ accounts, claiming that agents of the Tigray
    People’s Liberation Front (TPLF) had infiltrated the Sudanese camps to spread
    disinformation about atrocities.”
    “Abiy’s ascent and pledge to address long-standing grievances paradoxically reignited
    tensions between communities about identities, regional borders, and political
    representation. While the prior regime had locked communities into ethnically defined
    regions ruled by pliant leaders who only answered to federal authorities, Abiy promised
    to free Ethiopians from this rigid and repressive system. He permitted the Sidama zone
    to secede from the Southern Nations, Nationalities, and Peoples region, and stood by
    as communities formed militias and fought to redraw subnational borders.
    His vision for a new Ethiopia, which he couldn’t deliver on fast enough, exposed him
    to withering critiques and turned adoring crowds into angry mobs. Abiy gradually
    revealed himself to be as intolerant of dissent as his predecessors, and he lashed out
    at his former allies-turned-rivals. Government forces surrounded the home of Oromo
    leader Jawar Mohammed and later arrested him.”
    “The country is rapidly unraveling under the stress of Abiy’s reforms and the strain of
    his rule. The current trajectory does not just promise more deaths and dislocations—
    it also imperils prospects for a free and fair election now scheduled for June 2021.”

    f) The New York Times, 12 December 2020, “As war goes on in Ethiopia, ethnic
    harassment is on the rise”:

    [ ethnic Tigrayans who live in the capital and other parts of Ethiopia say they
    have been treated like criminal suspects and subjected to various forms of
    discrimination, harassment and abuse by government officials.”
    “They report being detained without charges, put under house arrest, and barred from
    traveling outside the country. Tigrayans say they have had their businesses shut down,
    homes ransacked and money extorted by security officials.”
    “Several Tigrayans who live outside Ethiopia said they hadn’t heard for weeks from
    family members who were taken away suddenly to police stations and prisons. Some
    Tigrayan members of the Ethiopian military forces are being held in detention centers
    around the country, their families said.”
    “The reports of ethnic profiling of Tigrayans, who represent about 6 percent of
    Ethiopia’s population of 110 million, are alarming to the delicate mix of people and
    power that makes up Ethiopia.”

1. The 2020 DFAT report[3] discusses security checks at the airport and states in part:

   Ethiopians travelling internationally by air are subject to security and identification checks at the airport, and immigration stations at airports have photograph and fingerprinting facilities.

   [3] DFAT report Ethiopia, at 5.39 to 5.41

2. I find there is a real chance that at the airport she will be identified as a Tigrayan who had a record of coming to the adverse attention of the authorities and having been imprisoned and interrogated at times because of her Eritrean connections.

3. The 2020 DFAT report[4] also discusses DFAT’s assessment that since April 2018 voluntary returnees have been welcomed:

   The authorities have typically welcomed voluntary returnees to Ethiopia, including, since April 2018, government critics and opponents. DFAT assesses that returnees, including failed asylum seekers and/or government critics and opponents, face a low risk of monitoring, harassment, detention and official discrimination. While the authorities have significant intelligence-gathering capabilities and are likely to be aware of major anti-government protest activity undertaken in other countries and online, DFAT assesses that people who openly criticise the ruling party while they are outside of Ethiopia face a low risk of official harm on their return to Ethiopia.

   However, it is reasonable to consider that the attitude of the authorities to returning Tigrayans with an anti-government profile and history of arrest and imprisonment for political activism has significantly changed in recent months. This is supported by the International Crisis Group February 2021 briefing that stated “There is also renewed state intolerance of dissent.”, and DFAT assesses “There is a growing sense among Tigrayans that their community is under threat. Anti-Tigrayan sentiment has become more overt since 2018, and hate speech against ordinary Tigrayans has increased in this time.” The New York Times article of 12 December 2020, “As war goes on in Ethiopia, ethnic harassment is on the rise”, states in part: “…many ethnic Tigrayans who live in the capital and other parts of Ethiopia say they have been treated like criminal suspects and subjected to various forms of discrimination, harassment and abuse by government officials.”…“They report being detained without charges, put under house arrest, and barred from traveling outside the country. Tigrayans say they have had their businesses shut down, homes ransacked and money extorted by security officials.”…“Several Tigrayans who live outside Ethiopia said they hadn’t heard for weeks from family members who were taken away suddenly to police stations and prisons”.

   [4] DFAT report Ethiopia, at 5.39 to 5.41

4. I find that the applicant’s Tigrayan ethnicity, her record of having an adverse political profile in Ethiopia as a result of her strong Eritrean connections, together with her previous imprisonment, will attract the adverse attention of security agents at the airport or soon after her arrival. If she is returned involuntarily, the authorities would likely also become aware she was a failed asylum seeker.

5. I find because of her particular ethnic and past adverse profile, and her imputed political profile of having Eritrean connections, there is a real chance that despite her old age, health problems and infirmity, the applicant would be detained, interrogated and harmed in prison. DFAT broadly assesses[5] that women in Ethiopia face a high risk of domestic violence and sexual harassment, and states in part: “Typically, gender-based violence is intimate-partner based and occurs in domestic settings.” I find she remains particularly vulnerable, either in prison or in the community, in light of her gender, age, medical and mental health problems and infirmity.

   [5] DFAT report Ethiopia, at 3.62 to 3.67

6. Having considered her personal circumstances and in light of country information I find there is a real chance she will face serious harm from Ethiopian authorities and their agents when she enters Ethiopia at Addis Ababa’s Bole International Airport, or after she leaves the airport and enters the community. I find this is because of her past adverse profile, and her imputed political profile of having Eritrean connections together with her Tigrayan ethnicity, and status as a single/widowed woman without a male protector.

7. For the purposes of s.5J(1), I find the applicant fears being persecuted for reasons of race, membership of a particular social group and political opinion. I find there is a real chance that if she returns to Ethiopia she would be persecuted for one or more of the reasons. I find the real chance of persecution relates to all areas of Ethiopia including Addis Ababa, and there are no effective protection measures available to her as the persecution would be perpetrated by the Ethiopian authorities, as well as other anti-Tigrayan non-state actors (s.5J(2)). The real chance of harm to the applicant amounts to serious harm in that she faces a threat to her life or liberty, significant physical harassment and/or ill-treatment, and a threat to her capacity to subsist, denial of basic services and/or denial of capacity to earn a livelihood (s.5J(5)). The s.5(1)(a) reasons I have outlined are the essential and significant reasons for the persecution that would involve systematic and discriminatory conduct.

8. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

   DECISION

9. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   C. Packer
   Member

   ATTACHMENT A – RELEVANT LAW

   The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

   Refugee

   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-LA, which are extracted in attachment B.  

   Complementary protection

   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 attachment B.

   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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   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.

   …