1902698 (Refugee) - [2024] AATA 2550

1902698 (Refugee) [2024] AATA 2550 (12 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1902698
MEMBER:Fraser Robertson
DATE:12 February 2024
PLACE OF DECISION: Perth
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 12 February 2024 at 10:48am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity and political opinion – member of Oromo nationalist organisation designated terrorist organisation – participation in anti-government protests – imprisoned, injured and subject of outstanding arrest warrants – country information – political instability and ongoing conflict with civilian deaths and other atrocities, arbitrary arrests and summary executions – organisation now registered political party but military wing designated terrorist organisation – detailed and consistent evidence despite minor embellishments – modification of behaviour not required, relocation not reasonable and state protection not available – delay in determining application – previously constituted member left tribunal without making decision – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (a), (3), 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Calado v MIMA (1997) 81 FCR 450
Chan v MIEA (1989) 169 CLR 379
Fox v Percy [2003] HCA 22; 214 CLR 118
Randhawa v MILGEA (1994) 52 FCR 437
V v MIMA [1999] FCA 428; 92 FCR 355
Wright v Lemon [No 2] [2021] WASC 159

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
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For the following reasons, the decision under review should be set aside and remitted to the Department with a direction that the applicant satisfies s 36(2)(a) of the Act.
BACKGROUND
The applicant is a [Age]-year-old male from Ethiopia who last arrived in Australia [in] November 2016 as the holder of a class TU subclass 500 (Student Higher Education) visa.
The applicant lodged a protection visa application on 27 October 2017. He claimed to be of Oromo ethnicity and identified as Orthodox Christian. The applicant claimed to be a member of the Oromo Liberation Front ('OLF'). He claimed to have participated in anti-government protests and to be opposed to the Tigrayan People's Liberation Front ('TPLF').
The applicant claimed to have been imprisoned on two occasions and to presently be the subject of outstanding arrest warrants issued in 2016 and 2017. The applicant claimed to fear prosecution, imprisonment, and torture if returned to Ethiopia. He claimed that he could not relocate because of difficulties with language.
DELEGATE'S DECISION
The applicant attended an interview with the Department in November 2018. That interview was conducted in English as the applicant had advised he did not require an interpreter.
The delegate refused to grant the applicant a protection visa on 24 January 2019.
The delegate accepted that the applicant was of Oromo ethnicity. The delegate was concerned with aspects of the applicant's evidence about what lead him to apply for protection. However, the delegate ultimately accepted that the applicant had been involved with the OLF and attended protests. The delegate also accepted that the applicant had been imprisoned on two occasions because of his political activity.
The delegate did not accept that there was an arrest warrant issued for the applicant in 2017 or that the applicant had a "political profile" in Ethiopia. The delegate thereafter reasoned that:
(a)"country information does not support the claim that an Oromo person will be subject to harm or discrimination based on ethnicity" and concluded that the applicant did not face a real chance of serious harm because of his ethnicity; and
(b)as the applicant was able to depart Ethiopia without incident, it suggested that he was not of interest to the authorities on account of his political, or ethnic, profile. The delegate considered that had the applicant been of such interest, he would have likely be stopped and questioned.
REVIEW APPLICATION
The applicant applied to the Tribunal for review of the delegate’s decision on 6 February 2019. The applicant provided a copy of the delegate’s decision record and a copy of the notification of the refusal to the Tribunal. The applicant was represented in the review application.
The applicant attended a hearing on 1 November 2022. The Tribunal was constituted by a Senior Member. I have read a transcript and listened to the audio recording of that hearing. At the conclusion of the hearing, the applicant was granted until 7 November 2022 to provide copies of online media reports which had been referred to in submissions.
The oral hearing in this matter was held more than 12 months ago. Regrettably, the Senior Member ceased being a member of the Tribunal on 31 January 2024, without delivering a decision.
The review application was constituted to me on 5 February 2024. I have attempted to determine this application as a priority, whilst ensuring that I have sufficient time to properly understand the material and claims relied on by the applicant and the extensive country information available in relation to Ethiopia.
I apologise to the applicant for the unacceptable delay in determining this application.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the DFAT Country Information Report[1] as directed.[2]
[1] 'DFAT Country Information Report Ethiopia', Department of Foreign Affairs and Trade, 12 August 2020, 20200812101229 (2020 DFAT Report).
[2] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
ANALYSIS, FINDINGS AND REASONS
The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act.
COUNTRY INFORMATION
Ethiopia held its first multi-party elections in May 1995.[3] The Ethiopian People’s Revolutionary Democratic Front ('EPRDF') won this and all other subsequent elections, bringing stability and economic growth but restricting political dissent and media and civic freedoms.[4] The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities, including the TPLF and the Oromo Democratic Party ('ODP'), formerly the Oromo People’s Democratic Organisation.[5]
[3]     2020 DFAT Report, [2.2].
[4]     2020 DFAT Report, [2.2].
[5]     2020 DFAT Report, [2.35].
The OLF was formed in 1973[6] as an ethnic separatist guerrilla group with the goal of establishing a separate state within the current borders of Ethiopia as a homeland for the Oromo people.[7] The OLF was designated as a terrorist organisation in June 2011 by the EPRDF.[8]
[6]     'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[7]    'Oromo Liberation Front (OLF)', 28 May 2006, CX156562.
[8]     2020 DFAT Report, [2.38].
Between 2014 to 2018, protests occurred in both Oromia and Amhara, which resulted in a state of emergency being declared during which approximately 20,000 people were arrested and 1,000 people killed.[9] It is reported that the Oromo were the most vocal of the opponents to the ruling party during this period, resulting in them bearing the brunt of the associated arrests and detentions.[10]
[9] 2020 DFAT Report, [2.3].
[10] 2020 DFAT Report, [3.6].
In early 2018, Abiy Ahmed became the first Oromo leader of the EPRDF and was sworn in as Prime Minister.[11] In June 2018, federal parliament removed the OLF and the Ogaden National Liberation Front (ONLF) from the list of terrorist organisations.[12] Following this, the OLF agreed to disarm and started to operate as a registered political party.[13]
[11]    'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1]
[12]    2020 DFAT Report, [2.38].
[13]    2020 DFAT Report, [3.7].
It is reported that the OLF as an opposition political party experiences considerable government harassment.[14] Around October 2018[15], part of the military wing of OLF, the Oromo Liberation Army ('OLA') officially separated from OLF leadership.[16]
[14]    Ethiopian Insight, ‘Guji Oromo need freedom from liberators’ 3 August 2020 by Nagessa Dube; [    'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007.
[16]    Oromo Legacy Leadership Advocacy Association, ‘The Security Situation in Oromia’, by Beresa Abera Jebena [>
The on-going conflict between the OLA and the government has resulted in a significant number of deaths, including civilian deaths, and other atrocities against civilians, including torture and rape.[17] It is reported that arrests and summary executions have become commonplace in parts of Oromia as the Ethiopian security forces engage in armed conflict with the OLA. [18]
[17]    Ethiopian Insight, ‘Guji Oromo need freedom from liberators’ 3 August 2020 by Nagessa Dube; [    The Economist,’ A hidden war threatens Ethiopia’s transition to democracy’ 21 May 2020; [>
The EPRDF was disbanded in December 2019.[19] Three of the four parties that previously made up the EPRDF, including ODP, then formed the Ethiopian Prosperity Party ('EPP').[20] The TPLF refused to join the EPP.[21]
[19]    2020 DFAT Report, [2.2].
[20]    2020 DFAT Report, [2.39].
[21]    2020 DFAT Report, [2.39].
In May 2021, the OLA was designated a terrorist organisation, alongside the TPLF.[22] In August 2021, despite their historical grievances and conflict, the OLA and the TPLF formed an alliance opposed to the government. It is reported that the crackdown on the OLA intensified after the OLA forged its alliance with the TPLF.[23]
[22] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [6.1.1].
[23] 'Ethiopian government accused of deadly air strikes on Oromiya region', Reuters, 27 October 2023, 20231031162439.
It is reported that since the OLA had been designated a terrorist group, incidents of political violence have increased.[24] It has been reported that there has been widespread impunity for ongoing rights abuses in Oromia, including in areas already suffering from conflict.[25] Security forces have targeted young Oromos, accusing them of support for, or affiliation with, the OLA.[26] It has been reported that a culture of impunity for abuse has emboldened unaccountable security forces and done nothing to prevent further harm.[27]
[24]    'Ethiopia: 20231025121315 – Security situation – Oromos/Oromia – Oromo Liberation Front – Oromo Liberation Army – Returnees', Country of Origin Information Services Section (COISS), 24 November 2023, 20231124144217, pg 2.
[25]    'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
[26]    'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
[27]    'Ethiopia's Other Conflict', Human Rights Watch, 04 July 2022, 20231102150033.
In July 2023 it was reported that members of the OLF had been detained without charge and the government had ignored judicial orders for their release.[28]
[28] 'Ethiopia: Oromo Opposition Figures Held Despite Court Orders', Human Rights Watch (HRW), 24 July 2023, 20230728103900.
As noted above, the OLF and OLA separated in 2018. However, it has been reported that "the extent to which OLF controls the OLA or more precisely the fighters who used to be connected to OLF/OLA is open to debate”,[29] with it being suggested that covert contact between the two factions is continuing.[30]
[29] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.1].
[30] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.2] and the information there cited.
There is also credible country information which contends that the distinction between OLF/OLA members and the general population in Oromia region is non-existent.[31] It suggests that accusations of OLA affiliation have been deployed by authorities to combat all forms of political opposition, regardless of whether actual ties to the OLA exist as a matter of fact or reality.[32]
[31] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
[32] 'Country Policy and Information Note - Ethiopia: Oromos, the Oromo Liberation Front and the Oromo Liberation Army', UK Home Office, March 2022, 20220317153007, [8.1.4] and the material there cited.
Human Rights Watch has commented on the treatment of politically active Oromos, who are perceived to be part of the OLF by the government, as follows:[33]
In the vast majority of interrogations involving Oromos, there are accusations that they are either members of OLF, or are involved in the Oromo opposition, which many take to mean OLF. There is very rarely any evidence that there is a connection to the OLF, rather anyone who expresses dissent, mobilizes for mainstream politics, or is involved in Oromo cultural associations, are at risk of being associated to the OLF. If you have a family connection from the past to OLF, you are at particular risk. Torture and mistreatment in detention is common among the Oromo, particularly those who have been accused of having connections to the OLF.
[33] Human Rights Watch 27 Apr. 2015 Immigration and Refugee Board of Canada, Ethiopia: The Oromo Liberation Front (OLF), including origin, mandate, leadership, structure, legal status, and membership; treatment of members and supporters by authorities (2014-2015), 7 May 2015, ETH105146.E, available at: >
The conflict within Ethiopia remains rife and hostilities are at a national scale.[34] Following the execution of a Cessation of Hostilities Agreement between the government and the TPLF, hostilities in Oromia between the OLA and the Ethiopian National Defense Force (ENDF) re-escalated.[35] Negotiations between the Federal Government and the OLA collapsed in April 2023 and the government responded by engaging in military operations against the OLA in May 2023.[36] It has been reported that in Oromia:[37]
The Commission investigated several emblematic incidents of extrajudicial killing, including the detention and killing of leaders of the Karrayyu community at the hands of government security forces in Fentalle District, East Shewa Zone on 1 December 2021. Security forces detained 39 men, including the senior leadership of the Karrayyu community, who were participating in a Waaq Kadhaa prayer ceremony, summarily executing 14 and holding 23 others in a military detention camp for over one month. In another incident, a 17- year-old boy was publicly executed by government security forces in Dembi Dollo, Kellem Wollega Zone, on 11 May 2021. He had been accused of being a member of a local armed group. Despite widespread outrage in both cases, as far as the Commission is aware, no one has been held accountable. Oromos living in Kellem Wollega and West Wollega also described killings of family members, often accused of being members of armed groups, with total impunity.
The Commission further uncovered a pattern of arrest and detention of Oromo civilians, in particular men, accused of having links with the OLA. Detentions documented between November 2020 and February 2023 were perpetrated primarily by the federal or regional police, Oromia Special Forces and at times the ENDF and were accompanied by torture and ill-treatment. Violations are ongoing. Family members of suspected OLA fighters were also targeted for arrest and detention – including women who experienced sexual violence. Arrests, detentions and killings often took place against a backdrop of curfews and restrictions on movement, contributing to an overarching climate of fear. Large areas of Oromia appear to have been administered throughout the mandate periods under militarized Command Posts, whether or not State of Emergency legislation was in force.
[34]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340.
[35]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 4.
[36]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 5.
[37]    'Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 25 September 2023, 20230925135340, pg 8-9.

The UN Commission concluded that in the Oromia region, there were:
reasonable grounds to believe that the ENDF and Oromia regional authorities committed serious violations of human rights, in particular of the right to life; prohibition of torture and ill-treatment, including rape and other forms of sexual violence; and arbitrary arrest and detention.
The UN Commission reported that it "found a pattern of arrest and detention of Oromo civilians, in particular men, accused of having links with OLA or of supporting or sharing information with the group.[38] The UN Commission further reported that whilst:
the majority of the cases were of individuals accused of links with OLA, the Commission found two instances where women and men were arrested and accused of other anti-government activities, including protests. According to human rights defenders and civil society activists working on Oromia, such detentions are common.
[38] See 'Comprehensive investigative findings and legal determinations for Report of the International Commission of Human Rights Experts on Ethiopia', Office of the High Commissioner for Human Rights (OHCHR), 13 October 2023 [accessible: [369], pg 63.
As recently as October 2023, both the OLF and the OLA accused the government of conducting air strikes in Oromo which killed hundreds of civilians.[39]
[39] 'Ethiopian government accused of deadly air strikes on Oromiya region', Reuters, 27 October 2023, 20231031162439.
COUNTRY OF NATIONALITY
The applicant claims an Ethiopian national. He travelled to Australia on an Ethiopian passport, which appears to have been regularly issued. I am satisfied that Ethiopia is the applicant’s country of nationality and the receiving country.
There is no evidence to suggest the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
DOES THE APPLICANT HAVE A WELL-FOUNDED FEAR OF PERSECUTION?
I have not had the benefit of having seen the applicant give evidence.[40] However, I have had the opportunity of listening to the applicant articulate his experiences and claims on two separate occasions which were four years apart. I have also been able to consider that oral evidence against the documentary evidence provided by the applicant, including his protection application, together with the country information.
[40] See generally, Fox v Percy [2003] HCA 22; 214 CLR 118.
I have listened to the applicant discuss his past experiences of harm and feared future harm at some length. Those discussions have occurred at two very different times, with years between them. His evidence was free flowing, consistent and detailed. On occasions where he was asked questions which appeared designed to elicit more specificity or detail, the applicant was able to provide that further information directly and without undue delay or pause. Moreover, the applicant's experiences and feared future harm are consistent with credible country information.
I consider that the applicant's evidence has been consistent between his protection visa application, his interview and when appearing before the Tribunal. He was able to articulate matters about how the OLF operated on a day-to-day basis whilst he was involved and also displayed an impressive understanding of the political situation in Ethiopia both historically and around the time of the Tribunal hearing.
I further observe that the applicant has been able to provide documentary evidence in support of this claims and evidence from witnesses as to the position in Ethiopia. I consider that additional evidence is both credible and persuasive in the circumstances.
Whilst I had some very minor reservations that the applicant may have, on occasion, embellished some aspects of his evidence I am not satisfied that the applicant did so deliberately, or that was suggestive of his claims being fabricated or non-genuine. I do not consider that the applicant knowingly or deliberately embellished his evidence. Rather, any embellishment that may have occurred, I consider was likely a result of a combination of the reconstructive process of memory[41] and the strength of the underlying fear of returning to Ethiopia.[42] Moreover, as a witness who I regarded as generally credible, he is entitled to the benefit of the doubt in this regard.[43]
[41] As to which see, for example, Wright v David John Neale Lemon as executor of the estate of Michael John Maynard Wright [No 2] [2021] WASC 159 at [205] – [206] (Le Miere J); see also United Nations High Commissioner for Refugees (UNHCR) 'Beyond Proof: Credibility Assessment in EU Asylum Systems' (May 2013), pg 56-61.
[42] As to which see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] (Gummow and Hayne JJ).
[43] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
Overall, I found the applicant's evidence to be credible and sufficiently reliable to consider that it ought to be accepted.
Is there a real chance of serious harm?
I am satisfied that the applicant is of Oromo ethnicity. I approach the claims related to the applicant's ethnicity in the ‘widest sense.’[44] I also approach the claims related to the applicant's political opinion in accordance with the principles set out in V v Minister for Immigration and Multicultural Affairs.[45]
[44] Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450 at 455.
[45] V v Minister for Immigration and Multicultural Affairs [1999] FCA 428; 92 FCR 355. Whilst those observations were made in relation to convention claims, I consider they are nevertheless applicable to a statutory claim. See also, Rajanayake v Minister for Immigration and Multicultural Affairs [2002] FCAFC 24 at [39]-[40] (Spender & Branson JJ with whom Gray J agreed).
Like the delegate, I am satisfied that he has previously been involved with the OLF and has participated in protests critical of the government. I accept that the applicant has been imprisoned on two occasions in late 2015 and again in mid-2016 because of his political activity. I am satisfied that he was injured during Irreecha. I am also satisfied that the applicant is passionate about Oromo issues and would, if returned to Ethiopia, engage in political activity in that regard. That would, in turn, increase his profile. I further observe that, to require him not to do so would, in my view, be to require the applicant to engage in the type of behavior modification that is impermissible under s 5J(3) of the Act.
I have referred above to country information which suggests that people of Oromo ethnicity are readily accused of involvement with the OLF/OLA, regardless of the truth of that allegation. Moreover, the risk is higher for persons who have a familial attachment to those organisations. Additionally, as the applicant has been arrested for his involvement in the past, I consider that the risk to him personally is greatly heightened.
The situation for Oromo people, particularly Oromo people who are in fact, or perceived to be, against the government in Ethiopia is dangerous and volatile. It is punctuated by considerable inter-ethnic tensions which, in turn, play a fundamental part in the political environment.[46] Ethnicity and politics cannot be easily separated from each other in Ethiopia. The strong impression that I have form the country information is that politics and ethnicity are inextricably and undeniably linked.
[46] See 'Two steps forward, one step back. How the rising tide of ethno-nationalism is hindering Ethiopia's democratic transition', Nydia Ponnan, HORN International Institute for Strategic Studies, 01 December 2020, 20210722151116.
To be satisfied that the applicant faces a real chance of serious harm, I do not need to be satisfied that the harm is more likely than not. A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.[47]
[47] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
I accept that there is a real chance the applicant will be seriously harmed because of either his Oromo ethnicity, or his political opinion (or a combination of both) if he is returned to Ethiopia. I accept that those matters would be the essential or significant reason for the harm that he would face.
I am satisfied that the applicant faces a real chance of serious harm now, or in the reasonably foreseeable future, if he was to return to Ethiopia. The applicant's prior involvement with the OLF is a matter which will, in my view, significantly increase the risk of the applicant continuing that involvement or, at a minimum, being imputed as supporting that organisation and the OLA. That is assuming that the state even attempted to identify a reason for suspected OLF or OLA involvement beyond the applicant's Oromo ethnicity as the country information suggests commonly occurs.
Is the harm feared for the essential and significant reason of a ground referred to in s 5J(1)(a) of the Act?
I am satisfied that the essential and significant reason for the applicant's persecution would be a combination of his race and political opinion, both actual or imputed.
Does the harm involve systematic and discriminatory conduct?
In the case of people of Oromo ethnicity, the country information supports a conclusion that the authorities have continued to act against the OLF and OLA. Whilst those actions are politically motivated, the inextricable links between politics and ethnicity in Ethiopia, in light of the above country information, is such that I am satisfied that the government is engaged in systematic and discriminatory persecution of persons who are opposed to them, including who are involved in, or perceived to be involved in, the OLF/OLA or are of Oromo ethnicity.
I am satisfied that the persecution involves systematic and discriminatory conduct by the government.
Does the harm relate to all areas of the receiving country?
The country information discloses credible reports of harm and abuse committed by federal and regional police forces, ranging from beatings and arbitrary arrest and detention to rape, torture and extrajudicial killings. That includes abuses committed in the context of the 2014–18 protests in the Oromia (and Amhara) states, counterinsurgency operations against political opponents (ONLF) in Somali State, and credible reports of abuses by state actors in the context of the ongoing conflict in Tigray.
The applicant is an Omoro male with a history of political involvement against the government in support of Omoro self-determination movements. The ethnic tension in Ethiopia is such that I do not consider that the applicant could reasonably relocate to any area in Ethiopia where he would not face a real chance of serious harm.
The disparate language groups that are regionally based limit the possibility of the applicant being able to relocate. Whilst the applicant does speak Amharic, requiring him to relocate to, for example, Tigray would not be reasonable in light the applicant's expressed opposition to that ethnic group and, more generally, the historical ethnic fighting between Tigray and Omoria. I am not satisfied that any present existing 'alliance' between those two organisations will continue in the reasonably foreseeable future.
Moreover, as an Omoro with a historical of political activism against the government, I am not satisfied that there is anywhere in Ethiopia that he could relocate to that would reduce his chance of serious harm from 'real' to 'remote'. Indeed, I am not at all satisfied that the applicant would be able to lawfully enter Ethiopia without exposing himself to a real chance of detention at the airport with consequential serious harm.
I am satisfied that the real chance of harm relates to all areas of Ethiopia and that the applicant could not reasonably relocate to avoid such harm.
In the circumstances, I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act.
THE APPLICANT MEETS THE REFUGEE CRITERION
As the putative persecutor is the state, I am not satisfied that effective protection measures, as defined by s 5LA of the Act, are available to the applicant.
I am satisfied that there are not any permissible reasonable steps that the applicant could take to modify his behaviour to avoid a real chance of persecution. The only steps that would be permissible would, in my view, involve a contravention of s 5J(3) of the Act. Even then, I am not satisfied that those actions would necessarily reduce the applicant's profile to a level which would involve him not facing a real chance of serious harm, however I do not have to determine that in the circumstances.
I am satisfied that the risk faced by the applicant is not one which is faced by the population generally.
For the reasons set out above, I am satisfied that the applicant is a refugee within the meaning of s 5H(1) the Act. It follows that the applicant meets the criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
Having determined that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary for me to consider whether the applicant meets the complementary protection criterion.
DECISION
The decision not to grant the applicant a protection visa is set aside and remitted for reconsideration with a direction that the applicant satisfies s 36(2)(a) of the Act.
Fraser Robertson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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