1901601 (Refugee)

1901601 (Refugee) [2022] AATA 5029 (7 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1901601
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Genevieve Hamilton
DATE:7 November 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 November 2022 at 3:33pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity – Oromo – political opinion – member of Oromo Federalist Congress – arrest and rape – left Ethiopia while on bail – husband’s missing status – social group – single women without male protection – victims of violence committed by the authorities – sufferer of mental illness and trauma – failed asylum seeker – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 15 June 2017. The delegate refused to grant the visas on 9 January 2019.
The first-named applicant is known as the applicant. The second-named applicant is the applicant’s daughter born [date].
The applicant appeared before the Tribunal on 29 July 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter. The applicants were represented in relation to the review.
Criteria for a protection visa
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) 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).
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.
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
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.
Claims and evidence
In her protection visa application the applicant said she was born in on [date]. She stated she had been charged with an offence currently waiting legal action. She stated the whereabouts of her husband born [date] ([name deleted]) was unknown. She has another daughter born [date], and a son born [date]. Her visitor visa was granted on 15 December 2015, she left Ethiopia on [date] May 2016, arriving on [date].
The applicant said she was born in Oromia Special Zone and is an Ethiopian citizen as are/were her parents. She speaks Oromo, speaks reads and writes Amharic, is an Ethiopian Orthodox Christian. She married in April 2000. She lived in Addis Ababa until April 2000 then in [variation of Town 1 spelling] (corr. [Town 1]), Oromio State. She worked at a [company] from 2008-2012.
She came to Australia as a visitor on an Ethiopian passport. She is the subject of a criminal investigation/has criminal charges pending against her. Between applying for her visa and coming to Australia she was arrested for instigating an anti-government protest. She was in prison for 29 days with her daughter. She was not involved in the protest but she was arrested because she is Oromo. She is a member of the Oromo Federal (corr. Federalist) Congress (OFC) which is opposed to the Government.
She left Ethiopia while out on bail. She speaks to her children by phone. Her husband is now in prison in her place. The police know she is a member of the OFC. When she came to Australia she told her brother-in-law what happened to her and he took her passport off her, and later told her it was lost and gave her a form to fill out. She thought he was helping her but no longer thinks so (he supports the government). When her visa expired he said she had to go home even though he knows what will happen to her (she will be returned to prison because she didn’t attend her court date). He went to Ethiopia before her visa expired, called her from there and told her she had to buy her ticket to go home.
The included applicant’s application states on her behalf that she was in jail with her mother because she was still breastfeeding. She will be returned to jail with her mother. She is also at risk because of being Oromo and because both her parents are members of the OFC.
The applicant submitted an OFC Membership card issued (according to its translation) [in] 2016.
The applicants submitted copies of replacement Ethiopian passports issued [in] 2017.
In a statutory declaration made on 29 January 2018 the applicant stated that she fears being physically and psychologically harmed, sexually assaulted, raped detained, falsely convicted of a crime, and/or killed, because of her Oromo ethnicity, membership of OFC, political opinion (opposition to the government), and not going to court. Her parents worked for the Ethiopian government (mother as [an occupation]). Her father is deceased. Her mother left Ethiopia when the applicant was about [age range] and now lives in [Country 1] with one of the applicant’s sisters. The applicant was mainly raised by her maternal grandmother. She told the applicant about the discrimination against the Oromo. The applicant married at [age]. She joined the OFC in 2010 when general elections were approaching. She went to meetings regularly and paid her monthly fees. In 2014 her sister applied for her to come to Australia, even though the applicant was unsure whether she wanted this. In 2015 in the lead up to elections she went to two anti-government demonstrations in Addis Ababa, on the subject of land confiscations, a number of people were beaten and killed but the applicant was unharmed.
[In] November she was called to her daughter’s school because the police had arrived and were beating students for handing out anti-government pamphlets. Some students were killed, others were seriously injured. While the applicant was looking for her daughter the police arrested a bunch of people including the applicant and took them to the police station. The police would grab the women one at a time and take them to another room. When it was the applicant’s turn they would take her into a dark room where she was interrogated, beaten and sexually assaulted. She was raped numerous times by different policemen. After 4 days she was released on bail paid by her husband’s boss. She was told to appear in court [in] March 2016. The applicant was under surveillance and the authorities’ treatment of Oromo was very bad at the time. The applicant went to stay with friends in Addis. She did not tell anyone, even her husband, about being raped.
[In] January 2016 the police came to the house and said she was wanted for interrogation. She and her daughter were taken to the police station for one night, the next morning they said they were going to take her to prison in order to torture her and that she should confess as her friends had done. She was beaten and interrogated and on day 25 returned back to the police station from where she was released. Her daughter had begun to be very scared of police. She went to court [in] March and was charged with being a member of the OFC, instigating anti-government sentiments, and distributing anti-government materials. She was told to come back to Court in June.
When she didn’t go to court (she was in Australia by that time) the police delivered a new summons to her home and asked her husband where she was; he told them she was out of the country. In September he told her the police were looking for her. In October another relative called her to say that her husband had been detained by the authorities when she did not attend court. He had been missing for a month and another relative was looking after her children. He is missing to this day. The applicant said she fears being arrested on arrival.
Protection interview
In her interview with the Delegate on 1 February 2018 the applicant said she obtained a travel document to replace her passport because her brother told her she had to go back to Ethiopia, and that her passport was lost. She had given it to him sometime about six months after her arrival. Her brother took her to the police to report the passport stolen. She did not know how he got the travel document.
The applicant said she has two children in Ethiopia and she does not know where her husband is. Her children are living with her uncle in [Town 1]. Asked if she had a house in Addis Ababa the applicant said there was a family of relatives there she used to live with sometimes. To get a passport you need an address in Addis. The house in [Town 1] is her husband’s house, no one is there now. Her husband had worked as [an occupation], they lived together in [Town 1].
When her visa expired she left her sister’s house. Her brother in law was in Ethiopia, he had told her he was going to make an application for her and would hire a lawyer. Then on a Saturday he told her she had to go back home the following Monday. She went to Church and was crying, a lady told her about making an asylum seeker application and took her to see someone. The brother in law had told her he was going to take her to Immigration. She called her friend who said don’t go to Immigration, go to the asylum seeker organisation. She took her there. She speaks to her children occasionally, the line isn’t good.
The applicant joined the OFC because Oromo people are treated unequally. Their land was taken with little compensation. According to the Master Plan for Addis, land was taken from everyone, including her uncles. The government committed abuses. Her husband did not join, he is not Oromo. All her family are members, including her uncles. Her uncle that is looking after her children is a supporter, not a member. She grew up with the political issue, went to a meeting and then decided to join. Asked when she last attended Oromo meetings the applicant said after she had a child she lost her card and didn’t pay her membership. Then she paid her outstanding fees and got a new card. Asked who she paid the money to, the applicant did not answer. Asked why she decided to pay her membership right before coming to Australia, the applicant said the Committee asked her to. They knew she had been detained. She also encouraged others to attend meetings, and to join. She didn’t do much though, because she had small children.
Her daughter was at [Town 1] High School. The police came and told [her grade] to leave. The children challenged this and the police started beating them. Some were killed, some were seriously injured and some ran away in fear. Asked why she was taken into custody, the applicant said they told her “you will advise your children about the situation”, because she is a member of the OFC. She said the police will make accusations like this to put people in custody. It’s a small city and everyone knows each other. A lot of people were arrested. Her family brought things to her while she was in detention. On release she was given a document telling her what time to go to the Court. Asked what she was charged with, the applicant said “supporting Oromo and advising children badly about the government and making children distribute people and telling Oromo people to make trouble at school”. The applicant appeared in Court. She was asked if she supported OFC and told she needed a witness, and a bailer. If she didn’t give the money she was told she would be gaoled. Asked what the witness was needed for she said it was to say that she was not a member of the OFC and did not go to meetings.
She got her new Membership card in May, the Delegate noted it was issued two days before she came to Australia. The applicant said she had paid for the card 4 months earlier but it wasn’t ready. She confirmed she had no copies of her court documents.
Asked why her husband was arrested the applicant said he was interrogated about his political associations. The applicant said her case Manager had taken her to the Red Cross where she signed a form in relation to tracing her husband.
Her sister paid for her trip. Asked if she had any problems leaving Ethiopia she said she did not, as no one knew she was leaving.
The applicant said she had been raped and her husband has disappeared and people were following her and they are still looking for her. She will be gaoled or killed, because she had missed court the gaol term will be longer. Asked who would do this the applicant sadh the government and the chief of her area.
Asked why she did not apply for protection sooner the applicant said her brother in law said he would make an application for her. She signed a form. She thinks he did not actually get a lawyer.
Prehearing submission
The Tribunal received a submission from the applicants’ representative dated 26 July 2022. It states that the applicant arrived in May 2016, her visa ceased May 2017, and she applied for protection on 15 June 2017. She fears harm due to Oromo ethnicity, being a member of OFC, anti government profile, and having left Ethiopia while on bail and missing court. She joined the OFC in 2010. She did not work for the OFC because she had young children but attended meetings when she could. In 2015 she went to Addis Ababa demonstrations regarding land disputes.
She was detained 26 November, raped repeatedly by the most senior police officer and a number of his comrades. She was accused of being involved in the school unrest and being an active member of the OFC. She was ordered to return to court [in] March 2016. Visas were granted in December 2015 but she hesitated to leave. In January she was detained again for 25 days, experiencing further interrogations and physical assaults. She went to court [in] March, was charged with being a member of the OFC, instigating anti-government sentiments and distributing anti-government materials. She was to return to court in June. Her husband was detained around September 2016 and remains missing.
[Mr B] was the main officer who raped her and he threatened to kill her and her family, including her children, if she disclosed what he had done. She has not told anyone outside of the counselling space. She has injuries to her teeth and her vagina. She has sought medical treatment for these. She suffers from extreme psychological damage, [Organisation 1] believes she suffers from PTSD anxiety and depression. The agent referred to the report of the counsellor and applicant’s statement. They were waiting for a report from her doctor.
The representative cited guidelines on applications involving sexual violence, and credibility guidance. It was submitted that the applicant faced persecution due to membership of particular social groups (addressed below), political opinion, and race. The agent made submissions concerning the risk profile of both applicants and cited relevant country information.
[The] Counsellor at [Organisation 1] supplied a report stating that the applicant presented symptoms consistent with PTSD and anxiety, throughout her engagement with them but fluctuating in severity and impact. The report details the symptoms she has reported, her reminders of the past traumatic events including detention and sexual assault, sleeplessness and nightmares, flashbacks, intrusive memories and hypervigilance especially regarding the police, fears for her family. She presents as depressed and distressed.

In her attached statement the applicant said she wanted to provide details she had not been able to discuss until now. She proceeded to describe her experience of being raped and beaten during her initial four days of detention. Among her claims was that her teeth were broken by being punched, and that the officer tore her vagina with his hand and she had to clean up her own blood. She stated that [Mr B] was rumoured to now be [a senior level] of police. He had been at her court case in March 2016. She described her feelings of ongoing fear and distraction due to these traumatic experiences. It had taken her a long time to discuss them with her counsellor.
The applicant said if she had only renewed her OFC card in order to support a protection application, she wouldn’t have delayed lodging a protection visa application. She also says she did not delay lodging a protection application, she thought her brother in law had applied for an extension of her visa or a protection visa. She went to Refugee Legal as soon as she knew her visa had expired. She renewed her OFC card before coming to Australia because it was practical to have renewed identity documents as well as a passport.
The applicant claimed that in September 2021 she argued with her husband’s sister who accused her of not doing enough to find her husband. The sister blames the applicant for the applicant’s husband’s disappearance.
The applicant claimed her son had recently been asked by the authorities to show an ID card, he was too young to have one but they hit him anyway. Now he is too scared to leave home or attend school. This could be linked to the applicant’s activities. She is afraid he will be abducted and forced to join the army.
The hearing
The applicant said she was born in [Town 1]. She lived in Addis before her children were born, with her grandmother who is now deceased. Her husband is also from [Town 1]. Her uncle (Mother’s brother) lives in Addis. In [Town 1] she lived in her husband’s house. She also has an uncle on her mother’s side there, her son lives with her uncle but her daughter is now moved out on her own and is [working]. Her husband was [an occupation]. Her father lived in Addis, he passed away about 10 years ago. Her mother left during the Derg regime. One sister is in [Country 1], one has passed away. She has no contact with her Melbourne sister but she heard she has gone back to Ethiopia.
Asked why she lost contact with her sister the applicant said she had problems with her brother in law. He took her passport and said he was going to make an application for her but he went to Ethiopia. As far as she knows he has not returned. A week after she arrived in Australia she told her sister what had happened to her because she had continence problems. She did not go to the doctor and her sister did not suggest staying here.
The applicant said she joined OFC in 2010 when she was [age] years old. They were in her area, said she joined. Asked how many members there were in [Town 1] the applicant said “some”. Asked how often they met she said once a month or once a fortnight at a community house. The local leader would announce the meeting over the phone and then the information would be disseminated to other members. Asked why the telephone was used, the applicant said it was because they had to meet in secret. The Tribunal queried this, the OFC itself was not illegal. The applicant said they would not be permitted to have meetings.
The applicant said there was conflict over the master plan which came in 2015. She had an activist role. The Tribunal asked the applicant to be more specific about her tasks. The applicant said if the leader wanted administrative help she would do things for them. The Tribunal asked why the applicant was doing administrative tasks when she had no formal position. The applicant said she was regarded as a local liaison.
The Tribunal noted that the applicant’s OFC card was only issued just before she came to Australia. The applicant said the fee had accumulated and she finally manage to pay it off. She had not even intended to bring the card with her.
Asked why she did not leave Ethiopia as soon as visa was granted, the applicant said it was difficult to separate from her children and she was anxious about the change. The Tribunal said it would have thought in her claimed situation she would want to leave straight away. The applicant said it was dependent on her sister and brother in law organising her travel.
Regarding the events at the school, the applicant said a student was distributing a pamphlet and the police came. One student was killed and there was lots of screaming. She and a lot of other parents went to the school. Up to 40 people were arrested. The OFC members (7 of them) were kept in detention. The students were taken somewhere else. She was kept at [Town 1] police station on the first occasion she was detained.
The Tribunal asked the applicant what she was charged with. The applicant said she was accused of being the instigator. The Tribunal asked the applicant what provision of the criminal code she was charged against. The applicant said she did not know the legislation but it was something about terror. The Tribunal asked what had happened to the charge and trial documents. The applicant said she left then at home. The Tribunal asked the applicant why she did not bring them with her. The applicant said she just left them. The Tribunal said it might doubt that the applicant was actually prosecuted without any documents at all. The applicant said she could not get a copy of the court file until the case was closed.
The Tribunal asked the applicant where her husband was. The applicant said he was arrested and released and then he left the children. Everyone was looking for him including his sister. The Tribunal asked the applicant why her husband was detained. The applicant said “that’s what they do”.
The Tribunal put to the applicant that she was able to leave Ethiopia without any difficulties which suggested she was not of adverse interest to the authorities, nor therefore should her husband be. The applicant said she was able to leave because she was out on bail. The Tribunal observed that the authorities would be aware she had left through Immigration records. The applicant said the authorities in Addis and those in [Town 1] do not communicate.
The Tribunal put to the applicant that there was minimal evidence of any effort to trace her husband. The applicant said she does not have contact with his family in Ethiopia. She relied on them to look for him. She did approach the Red Cross. The Tribunal put to the applicant that this appeared to be a late effort.
The Tribunal said it was aware of reports of protests at education institutions in Oromia over the Master Plan in which people had been killed. There was no reporting of the incident the applicant claimed to have been involved in. The applicant said there were no media present. The Tribunal said that people involved in such events would report them to human rights organisations, this is how the information gets out into the international community. The applicant asked who would report such events, and denied that there were such reports.
The Tribunal put to the applicant that it may give the psychological reports little weight as they were based on her own self-reporting. The applicant said that significant harm had been inflicted on her because she is a woman, resulting in incontinence and damage to her ovaries. If she returns to Ethiopia she will be killed. The Tribunal put to the applicant that damage to her reproductive organs did not necessarily constitute evidence as to how the damage occurred. The applicant said she was raped by four men including one who threatened her with a gun.
Post hearing submission
The applicant appointed a new representative. Their submission referred to the medical and psychological reports and submitted they had immense corroborative value as they are based on a long standing therapeutic relationship. The representative submitted that unless the Tribunal was able to make a confident finding that the applicant’s account was not credible it must make its assessment on the basis that it is possible that her account of events was true.
The representative outlined the applicant’s history of political involvement as per previous claims. OFC letter supporting her involvement and detention. Her activities including telling people about meetings and facilitating them including preparing refreshments do not require a formal position. [Town 1] has less than [number] people so her membership would have been well known. The structure of the OFC and issuing of membership cards is inconsistent over time and place. In any case an anti-government opinion has been attributed to her.
The representative submitted that the targeting of Oromo people in Oromia continued, referring to the assassination of a popular advocate leading to widespread violence leaving hundreds of people dead, and thousands arbitrarily arrested. OFC members and supporters were at risk of being treated as though they were in the OLF and could be arbitrarily detained without charge for years. Or they were charged with crimes against the Constitutional Order and the Internal Security of the State. Therefore it was likely that meetings of the OFC would be held in secret.
The representative cited reports about Oromo protests through 2014 regarding the Master Plan, leading to thousands of arrests, human rights violations in the lead up to the May 2015 elections, and the suppression of further protests against the master plan that began in November 2014, leading to further killings, beatings and arrests. They quoted a Human Rights Watch report that anyone seen as opposing the government, even by historical family association with opposition groups, as well as OFC members, could be targeted, and anyone identified at the protests, as well as influential Oromos (teachers, artists etc).
Regarding the delay in her departure from Ethiopia, it was submitted that the applicant was on bail and expected in Court. Her sister was in Ethiopia for two months at the end of 2015, beginning 2016. So the applicant waited for her sister to return to Australia.
The representative outlined the sequence and places of the applicant’s detentions, and discussed various aspects of the Ethiopian justice system, submitting that the applicant’s claims were consistent with the process. Her husband could have been detained as a guarantor (his employer had provided the funds).
Regarding the applicant’s husband’s disappearance, it was submitted that efforts were made by family members to find him and that his disappearance causes the applicant a very high degree of distress. She was not initially aware that there were overseas tracing services.
The representative submitted a letter from Australian Oromo Community Association in Victoria, dated August 2022, stating that the applicant has volunteered for their events including rallies organised to voice against the atrocities committed by the Ethiopian government.
The representative submitted a letter from the OFC in Addis Ababa dated [date]/8/2014 ([April] 2022), stating that “several of the applicant’s close friends continued to be detained and interrogated by the Ethiopian Government Security Forces searching for her”. “Our Party has a report of her enduring multiple detention and interrogation instances in 2015 and 2016…. Her family and her close friends reported her detention in [Town 1]”.
The representative submitted a Red Cross letter dated February] 2018 recording that the applicant had enquired about her husband. The date of the inquiry is said to be [January] 2018, the outcome was [February] 2018, the outcome was that the inquiry was outside Australian Red Cross tracing criteria, the action was that the case was sent to the ICRC in Addis Ababa and the family could approach the ICRC in Addis Ababa directly.
The applicant’s GP [Dr C] submitted a report which described her qualifications and experience in refugee help, stated that the applicant had been seen regularly since 2017 by a number of GPs at the clinic, and summarised notes from her clinical file and from face to face assessments with [Dr C] over three visits. In addition to various mental health symptoms consistent with those previously described, [Dr C] refers to the applicant having been sexually and physically assaulted and reports that the applicant has the following conditions: [deleted]. [Dr C] then states a “complete list of diagnoses “likely” from the described assault: [deleted].
The current DFAT report contains the following information. The Tribunal is aware that since this report the human rights situation for government critics has deteriorated again.
Race/Nationality
Article 25 of the constitution stipulates all persons are equal before the law and are entitled to equal protection regardless of race, nationality, colour, sex, language, religion, political or other opinion, property, birth or other status. Article 46 of the constitution provides the basis for Ethiopia’s states to be delimited ‘on the basis of the settlement patterns, language, identity and consent of the people concerned’. In effect, this involves the creation of states that are broadly consistent with the geographic locations of major ethnic groups. Traditionally, ethnically-motivated societal violence has been rare, although ethnic-based clashes have increased since 2018, fuelled largely by competition for resources and enabled, in part, by the lifting of restrictions on freedom of expression and an associated rise in hate speech and misinformation. With the exception of the ethnic Anuak people of Gambela State, most ethnic groups in Ethiopia are indistinguishable by their physical appearance, partly as a result of inter-marriage.
Ethiopia is a multi-ethnic society, and ethnic groups enjoy extensive rights. Under the Ethiopian Constitution every ‘nation, nationality and people’ (a reference to all ethnic groupings which constitute Ethiopia) has the right to speak their language and promote their culture. Every nation, nationality and people also has the constitutional right to self-determination, including the right to regional statehood within Ethiopia’s federal system …
All major ethnic groups are represented in the federal government and bureaucracy, and political parties represent the interests of Ethiopia’s various ethnic groups. DFAT assesses official discrimination – including systematic state-sanctioned discrimination, denial of public services and higher detention rates – based on race and/or ethnicity is rare. This assessment is consistent with the constitutional prohibitions on discrimination, and reflects the need for governments to maintain their legitimacy through inclusiveness, given Ethiopia’s ethnic diversity. Different ethnic groups have a history of co-existence in Addis Ababa, and discrimination on ethnic grounds is not common there. One source described ethnicity as a ‘non-factor’ in Addis Ababa — most people consider themselves from Addis Ababa as opposed to a particular ethnic group. Violence based on ethnicity is not common in Addis Ababa, but is a growing concern in regional states. Inter-ethnic relations have deteriorated since 2018, and DFAT assesses the situation for ethnic minorities at the regional state-level is increasingly challenging, and they face a growing risk of violence at the hands of the majority community.
Societal discrimination based on ethnicity can occur, but is predominantly in the form of positive discrimination in favour of a particular ethnic group rather than active discrimination against people of a different race or ethnicity. Official policies can limit opportunities for some groups; for example, the use of Oromiffa as the language of instruction in schools in Oromia State can limit opportunities for ethnic Oromos in the public sector if they do not also speak Amharic and English. Similarly, ethnic groups that constitute a minority within regional states are at a disadvantage from a linguistic perspective, insofar as their languages do not enjoy official status in those states.
Oromos
The Oromo people are the single largest ethnic group in Ethiopia, at nearly 35 per cent of the population. They live mostly in Oromia State, which surrounds the federally-administered Addis Ababa. According to the 2007 national census (the most recent), there are significant Oromo communities in Addis Ababa (534,000), Amhara State (450,000) and SNNP State (236,000). While recent data is hard to come by, roughly similar numbers of Oromos practise Islam and Christianity (both Orthodox and Protestant). Oromos speak Oromiffa (also known as Afaan Oromo), which is the language of administration and schooling in Oromia State. By virtue of its location surrounding Addis Ababa, Oromia State is one of the more developed parts of the country.
Ethnic Oromos’ level of political and economic influence has traditionally been incommensurate to their size. Oromos argue they have long been subservient to smaller ethnic groups — a major source of historical frustration. While Oromos were represented in federal government and held positions of influence during the EPRDF’s rule, ethnic Tigrayans predominated politically and economically. Likewise, ethnic Amharas dominated during the periods of military and monarchic rule. The displacement of Oromos from traditional land on which Addis Ababa is built is another historical grievance for the Oromo community. Oromos were the most vocal of Ethiopia’s ethnic communities during anti-government protests from 2014 to 2018, and bore the brunt of associated arrests and detentions.
Oromo influence at the federal level has expanded significantly since the April 2018 election of Abiy as prime minister — the first time in Ethiopia’s modern history an Oromo has led the country. The Oromo were the single largest ethnic group in the federal cabinet (the Council of Ministers) at the time of publication, and were represented in the senior ranks of the public service and the military. Oromo political prisoners, including those arrested for their involvement in the 2014-18 protests, have been released. The OLF, an opposition party dedicated to Oromo self-determination, was delisted as a terrorist organisation in June 2018 and returned from exile in Eritrea in September 2018. The OLF signed a peace agreement with the federal government in August 2018 and agreed to disarm. It now operates as a registered political party and plans to contest forthcoming national and regional elections. Despite these gains, historical grievances remain. The resignation of Prime Minister Desalegn, his subsequent replacement by Abiy and Ethiopia’s democratic opening has triggered a resurgence of Oromo nationalism. Ethnic Oromos have been involved in many of the inter-ethnic clashes and associated displacement that has occurred since 2018, both as instigators and victims (Oromos have been targeted in Benishangul-Gumuz and Somali states). The killing of prominent Oromo singer and activist, Hachalu Hundessa, in June 2020 – who had been increasingly outspoken on the economic and political marginalisation of the Oromo people – sparked renewed Oromo protests.
While there was widespread violence against, and detention of, protesters across Oromia State between 2014 and 2018, DFAT assesses this was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. The situation for government critics, including ethnic Oromos, has improved significantly since April 2018. DFAT assesses that individuals who are part of, or have links to, armed OLF factions engaged in criminal activities and clashes with government forces are likely to be of interest to the authorities, and face a moderate risk of arrest and detention. The risk of arrest and detention faced by OLF members who participate peacefully in the political process is low. DFAT assesses, overall, Oromos face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. DFAT assesses that, excluding in Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority.
Political Opinion (Actual or imputed)
The constitution enshrines extensive protections in relation to political opinion. Article 25 provides for equality under the law, without discrimination on the grounds of political or other opinion; Article 29 provides for freedom of expression; Article 30 provides for freedom of assembly, peaceful demonstration and petition; Article 31 provides for freedom of association; and Article 38 provides for the right to vote, be elected and be a member of a political organisation regardless of colour, race, nation, nationality, sex, language, religion, political or other opinion. Organisations formed in violation of appropriate laws and/or with the intent to subvert the constitutional order are prohibited. Organisers of large public gatherings must notify the authorities 48 hours in advance and obtain a permit.
In practice, political freedoms were significantly curtailed before April 2018. Members of opposition groups, human rights activists, and independent commentators such as journalists and bloggers who opposed the government’s policies were regularly harassed and detained. The ATP was used extensively to restrict political freedoms and arrest and prosecute government critics, particularly individuals with suspected affiliations to proscribed groups Ginbot 7, the OLF and the ONLF. Against this background, many opposition leaders and dissidents left Ethiopia. Individuals who were not members of the EPRDF reportedly faced discrimination in public sector employment, including impediments to career progression. Anti-government protests were often dispersed through force, and participants arrested.
…
2014-18 Protests and State of Emergency
Ethiopia witnessed large-scale anti-government protests from 2014 to 2018 in Oromia and Amhara states (which, collectively, account for 60 per cent of Ethiopia’s population). The protests began in Oromia State (Ethiopia’s most populous) in April 2014, triggered by the federal government’s plan to expand the municipal boundaries of Addis Ababa into Oromia State, which it abuts. The federal government justified the Addis Ababa Integrated Development Master Plan on the grounds it was necessary to cater for the rapid growth of the capital; critics claimed the encroachment would displace Oromo farmers and result in land seizures. The protests were put down through force, but re-emerged in November 2015.
Women
Article 35 of the constitution enshrines a range of rights for women, including: equality with men in the enjoyment of constitutional rights and protections; equal rights in marriage; the entitlement to affirmative measures to remedy the historical legacy of inequality and discrimination against women and to enable women to participate in society equally with men; the right to maternity leave at full pay; equal rights with the respect to the use, transfer, administration and control of land and the inheritance of property; equal rights in employment, including in relation to pay and promotion; and the right of access to family planning education, information and capacity. Article 34 stipulates that marriage can be entered into only with the free and full consent of the intending spouses. Gender equality is a priority for the current federal government.
Ethiopia scores highly in international rankings for gender equality in political participation. In October 2018, Ethiopia elected a female president (the only African female head of state at the time of publication). In parallel, Prime Minister Abiy appointed women to half of all positions in the Council of Ministers, including the ministers of defence, trade and industry, and peace (with the latter responsible for overseeing the federal police and all civilian intelligence agencies). Abiy has also appointed women to head the Supreme Court and the NEBE. Women hold 37.3 per cent of seats in the current federal parliament. Some state legislatures have an even higher representation of women. The World Economic Forum ranks Ethiopia 82^nd out of 153 countries in its 2020 Global Gender Gap Index, including 16^th for political participation (ahead of the likes of Austria, Belgium, Canada, Denmark, Switzerland and the UK).
Local sources told DFAT that, while women’s political participation has increased, the situation for the average Ethiopian woman remains challenging. Women aged 15-24 have higher literacy rates than men, but girls are more likely to be out of school than boys, particularly in rural areas (see Education). Women typically have fewer employment opportunities than men, in both urban and rural areas, and their participation in the labour force (at 74.2 per cent) is significantly lower than that of men (86.5 per cent). This is influenced by a number of factors, including societal discrimination, traditional norms and attitudes regarding gender roles, and women’s generally lower levels of educational attainment. Early marriage is widespread, and negatively impacts the ability of girls to attain an education and participate in the labour force. DFAT heard that it is common in rural areas for young girls to be married off in order to ease the financial burden on the girl’s family, particularly during times of drought. Women often lack financial independence, particularly in rural areas. Ethiopia ranks 125^th out of 153 countries for economic participation and 140^th for educational attainment in the 2020 Global Gender Gap Index.
According to local sources, access to sexual reproductive health services is limited. The fertility rate is 3.9 children per woman, but regional variations exist (the fertility rate in Somali State is 7.1). Abortion is allowed in some circumstances, including: where the life and physical health of the woman is at risk; in instances of rape, incest and foetal impairment; if a woman has physical or mental disabilities; or if she is younger than 18 years of age. Most abortions now occur in health facilities. Local sources told DFAT that, while professional abortion services exist, women often do not know where to find them. Abortion carries significant social stigma.
DFAT heard anecdotally that divorce is not uncommon in urban areas and divorce rates are increasing overall. Women’s growing economic independence in urban areas and the availability of legal aid services and courts were cited as contributory factors. Being a single woman or seeking divorce from one’s husband is widely accepted in major urban areas and carries less social stigma compared to rural areas. According to local sources, single or divorced women may face greater economic challenges but not societal discrimination in urban areas.
Gender-Based Violence
Gender-based violence is a criminal offence punishable by up to 20 years’ imprisonment. In practice, the law is rarely enforced. Marital rape is not explicitly prohibited. A local source told DFAT the authorities largely consider events behind closed doors to be private matters.
Gender-based violence is widespread in Ethiopia. Typically, gender-based violence is intimate-partner based and occurs in domestic settings. Local sources told DFAT gender-based violence is a countrywide phenomenon that occurs across all ethnic groups and religions. An Ethiopian Demographic Health Survey from 2016 found that 23 per cent of women aged 15-49 had experienced physical violence, and 10 per cent had experienced sexual violence. A 2018 academic study found almost half of women had experienced gender-based violence in their lifetimes. According to the UNDP, 28 per cent of women aged 15 and older have experienced intimate partner violence. DFAT heard anecdotally violence against women is most prevalent in Afar and Somali states, where the vast majority of the population is Muslim and the family legislative framework is based on traditional practices and sharia law. Local sources told DFAT refugee and IDP women and girls are particularly vulnerable to gender-based violence, including, in the case of Gambela State, rape perpetrated by men making cross-border incursions from South Sudan.
Societal norms and a lack of financial independence mean violence against women is under-reported, and victims generally do not seek legal remedies, particularly in rural areas. …
Local sources told DFAT that, while services for victims of gender-based violence exist, including shelters, they are insufficient. … DFAT heard anecdotally that reporting of gender-based violence is increasing, but remains low overall, largely due to women’s economic dependence on men.
DFAT assesses women in Ethiopia face a high risk of domestic violence and sexual harassment. Sexual assault, including spousal rape, is common. DFAT assesses support services for women escaping from domestic violence have improved but are insufficient overall.
Mental Health
The Ethiopian Psychiatric Association estimates that 25 million Ethiopians were suffering some form of mental disorder in 2018. Local sources told DFAT that poverty and substance abuse – particularly of khat, a mild narcotic leaf (Catha edulis) – are major drivers of mental illness. One local source described khat, use of which is widespread among Ethiopian youth, as a ‘generation-killer’.
The federal government has devoted greater resources to mental health and psychosocial support since 2010. In 2012, Ethiopia adopted a National Mental Health Strategy to promote accessible and affordable mental health care. The Strategy mandates that mental health be integrated into Ethiopia’s primary health care system. Psychiatric services are offered in most public hospitals, and non-governmental organisations (NGOs) are also active in this field.
Despite these efforts, mental illness carries significant social stigma. Those suffering from mental illness face discrimination in employment, education and housing. Traditional attitudes about mental illness discourage victims from seeking professional treatment and discussing their illness openly. Mental health services are available, particularly in Addis Ababa and other major urban areas, but local sources told DFAT the average person is often unaware of their existence. Mental health services are scarce in rural areas, where most of the population lives but where health infrastructure is limited. Private mental health clinics operate in Addis Ababa (including the Sitota Center for Mental Health Care), although these are financially prohibitive for the average person. There is one dedicated psychiatric hospital in Addis Ababa (St. Amanuel Mental Specialized Hospital).
Sources told DFAT that most Ethiopians eschew the notion of seeking professional services to treat mental illness, preferring traditional treatment methods (e.g. use of holy water) instead. Those seeking professional help are usually educated and progressive. According to the Ethiopian Psychiatric Association, of the 25 million people it estimated were suffering from some form of mental disorder in 2018, less than 10 per cent had received any form of treatment and less than 1 per cent had received specialist care...
FINDINGS AND REASONS

Based on the information in her application the Tribunal finds that the applicants are Ethiopian nationals.
The applicant claimed to fear persecution due to her race, membership of various particular social groups, and political opinion.
The Tribunal first addresses her claims regarding political opinion. The Tribunal is not satisfied that the applicant was a member of the OFC. Her contention that it was somehow illegal to be a member of the OFC was incorrect, although its leaders and activists have been detained for reasons due to their particular profile or activities, not for membership of the OFC per se. Her contention that meeting announcements could not be broadcast because they were not permitted was therefore not persuasive. The OFC is a legally registered political party as stated in the letter submitted on her behalf. In other respects the Tribunal gives little weight to that letter as it has been submitted very late in the process of her application and refers to claims she has not even made (the detention of her close friends following her departure – which the Tribunal does not accept occurred).
The applicant’s OFC membership card was issued two days before her departure from Ethiopia which strongly suggests it was contrived in order to make a protection case. The applicant’s explanation for this (that she coincidentally paid her membership up after her visa was granted without intending to bring the card) was not persuasive. Her alternate claim that she felt it was needed to establish her identity in Australia, was also not compelling. A Party membership card is not a form of identity for her in Australia.
The applicant’s evidence as to the extent of her OFC activities was generally inconsistent. On one hand she said she was not really active after having children, and even stopped going to meetings, on the other hand it is claimed that she facilitated meetings and did other administrative duties. Claims made regarding her husband’s membership were inconsistent (it was stated in the included applicant’s application that he was a member, but the applicant said he was not, and is not even Oromo).
The Tribunal does not accept that the applicant was detained and charged in relation to the claimed event at her daughter’s school in [Town 1]. First, the Tribunal is not satisfied that this incident occurred. Protests at Oromo educational institutions in which students were killed have been reported and such reports were referenced in her representatives’ submissions. The applicant’s contention that this was not true cast doubt on her credibility. Secondly, the applicant’s description of the accusations and charges against her was vague and lacked verisimilitude. She could not cite the actual crime of which she was accused, and despite being charged and summonsed to court and told to returned to court she had not one document about this matter.
It follows that the Tribunal does not accept that the applicant was beaten and raped in detention. In making this finding the Tribunal has given careful consideration to the medical and counsellor reports. In order to overcome the credibility problems in other aspects of her evidence these reports needed to be highly probative.
With regard to the counsellor’s report, they state that the applicant has symptoms ”consistent with PTSD and depression”, based on what the applicant herself reported to them. She “presents as” depressed and distressed. But this, with respect, is not a psychiatric diagnosis, nor can it be safely treated as confirmation of the truth of her claims.
[Dr C]’s report similarly identifies a number of gynaecological matters and concludes that they likely or possibly related to her being raped and beaten as claimed. The conclusion is expressed diffidently and fails to address other possible causes. The contention that there are abnormalities [that] result from scarring appears to be speculative, and speculates as to the cause of such scarring. Her loose dentition could have happened in any number of ways. The contention that she is [deleted] appears to be only based on her own reports. [Deleted] could have resulted result from pregnancy and childbirth. The Tribunal is not satisfied that the medical report confirms the applicant’s claims.
The Tribunal does not accept that the applicant’s husband has disappeared. It was stated that he was detained in her place, but the Tribunal has not accepted that the applicant was the subject of court proceedings, and the applicant herself said he is not a member of the OFC and did not detail any other political activities that may have brought him to the attention of the authorities. Further, it was well after she lodged a protection application that she approached the Red Cross to see if tracing was possible. Her explanation for this (that she did not know of the existence of such services), was not persuasive. It was claimed that family members in Ethiopia went looking for him, but there is no evidence they have followed up on the referral of the case to the Red Cross in Addis Ababa. If the applicant’s husband disappeared in late 2016 the Tribunal would have expected the applicant to at least make enquiries about whether there was any action she could take from Australia to locate him. The applicant showed unhappiness at the hearing when discussing her husband, but the Tribunal is unable to draw a clear inference as to her the reason for her feelings.
The Tribunal’s findings are reinforced by the fact that the applicant did not make a protection application until more than a year after her arrival in Australia and after her visa expired. Her explanation for this (that she relied on her brother in law to make some kind of application and simply signed a form the nature of which she did not specify), was not the behaviour one would expect of someone who had been beaten, repeatedly raped and was at risk of being gaoled for failing to attend court if they returned to Ethiopia. The applicant did not withhold her claim to have been raped and beaten, it was in her statement of claims. Her evidence implied that she did not know about protection visas until her brother in law told her to go back to Ethiopia. This was implausible, the existence of this visa category is a matter of wide public knowledge in Australia and she would have heard about it in the Ethiopian community.
Moreover, the applicant was able to leave Ethiopia undisturbed. The Tribunal gives this factor some weight notwithstanding that security lapses can occur.
The Tribunal does not accept that the applicant has been involved in Oromo protest activities in Australia. This was not even in her own written claims nor mentioned in any of her oral evidence or submissions by her representatives.
The Tribunal does not accept that the applicant has an anti-government profile. It accepts that she supports the OFC as a political party but the country information indicates that rank and file supporters are not at risk of serious harm by virtue of that fact alone. As the applicant was not a credible witness in general, the Tribunal does not accept that her son had a confrontation with the authorities.
In conclusion, the Tribunal is not satisfied that the applicants face a real chance of serious harm due to the applicant’s actual or imputed political opinion.
The Tribunal is not satisfied that the applicants face a real chance of serious harm due to being of Oromo ethnicity. Inter-ethnic clashes do occur in contested territory but the applicant lived in Addis Ababa and in Oromo region for 30 years without being harmed for her ethnicity.
With regard to the claimed particular social groups, s 5L provides that a person is to be a treated as a member of a particular social group if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. The characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it (protected characteristics), or must distinguish the group from society (social perception).
It was claimed that the applicant was a member of the following particular social groups:
Single women without male protection, single female household head.

Oromo women/single Oromo women

Victims of violence committed by the authorities

A sufferer of mental illness and trauma

Returnee/failed asylum seeker.
The Tribunal is not satisfied that the applicant is a single woman without male protection or a single female household head, or a single Oromo woman. As stated above, the Tribunal is not satisfied that the applicant’s husband has disappeared. She did not give any other reason why she would be single.
The applicant is an Oromo woman, but the Tribunal is not satisfied that Oromo women face a real chance of serious harm any more than Oromo do in general and refers to paragraph 83 above.
The Tribunal is not satisfied that the applicant suffers from mental illness or trauma. It has not accepted that the claimed causes of this occurred. The applicant has not put forward any other reasons why she would be mentally ill or other traumas she might have experienced.
The Tribunal has not accepted that the applicant is a victim of violence committed by the authorities.
The Tribunal is not satisfied that returnees or failed asylum seekers constitute a particular social group in Ethiopia. Being a returnee or a failed asylum seeker is not a protected characteristic and does not distinguish returnees and failed asylum seekers from other Ethiopians, nor do returnees or failed asylum seekers per se face a real chance of serious harm. DFAT states “About 5 million Ethiopians live outside of the country, with large concentrations in the US and the Middle East. Members of the diaspora return to Ethiopia regularly and contribute to the economy, including through remittances. … Ethiopia is a source, transit and destination country for international migration. Large numbers of people attempt to move from Ethiopia to other countries in search of better economic opportunities. … DFAT 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.”
Insofar as there is an implied claim that women in Ethiopia are a persecuted particular social group, the Tribunal notes that the country information exposes a number of concerning issues for women including domestic and sexual violence. However, the Tribunal does not accept that all Ethiopian women face a real chance of such harm. There is nothing clear in the applicant’s background or personal circumstances that points to a risk to the applicant herself.
As the Tribunal does not accept that the applicant faces a real chance of serious harm for the reasons set out the Act, it also does not accept that the included applicant faces a real chance of serious harm by association with her.
The Tribunal is not satisfied that the applicants are refugees within the meaning of the Act.
Having concluded that the refugee criterion is not met, the Tribunal considered the application of the complementary protection provisions. As the Tribunal has already found that the applicants do not have a real chance of serious harm in relation to the claims discussed above, similarly it finds that there is not a real risk of significant harm to them, as defined, in relation to those claims. No other basis for the application of the complementary protection provisions was claimed.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
decision

100. The Tribunal affirms the decision not to grant the applicants protection visas.
Genevieve Hamilton
Member

[2022] AATA 5029

7 November 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction