1903985 (Refugee)

1903985 (Refugee) [2023] AATA 1022 (24 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1903985
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Bridget Cullen
DATE:24 January 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 24 January 2023 at 4:06pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – member of opposition party – Ginbot 7 – member of particular social group – Amharic woman – country information – credibility – undetailed and inconsistent claims and evidence – incorrect information given as dependant in mother’s partner visa application – husband and child not declared – visa cancelled – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2019 to refuse to grant the Applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicant, who claims to be a citizen of Ethiopia, applied for the visa on 30 March 2015. The delegate refused to grant the visa on the basis that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Act.
The Applicant appeared before the Tribunal on 16 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Mr A] (the Applicant’s friend) and [Ms B] (the Applicant’s niece). The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.
The Applicant first arrived in Australia in 2011 but did not feel confident without the assistance of full interpretation. The Applicant’s witness, [Ms B], asked to give her evidence in English. The Applicant told the Tribunal that at home, she uses both English and Amharic to communicate with her family, including [Ms B]. The Tribunal confirmed that she understood the interpretation, as well as the evidence of her niece [Ms B] (given in English and then translated), as well as the Tribunal’s questions. The Applicant said that she did.
The Applicant confirmed that although [Mr C], her former representative, had been listed as a witness, that this was in error. The Applicant explained that [Mr C] was not able to represent her as he had been suspended from his role as a registered migration agent, and he would not be appearing to give evidence on her behalf.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-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.
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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the Applicant will face persecution by the Ethiopian authorities for reason of her political opinion and therefore is a person against whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The Applicant is a [Age]-year-old female national of Ethiopia who first arrived in Australia on a Subclass 309 Partner (Provisional) visa [in] June 2011 as a dependant applicant on her mother’s visa and has remained onshore since.
Her Subclass 309 visa was cancelled by the Department on 22 July 2014 on account of false information provided with the visa application. The cancellation decision was reviewed, and this decision was affirmed by the Tribunal (differently constituted) on 3 March 2015. The false information was that the Applicant did not tell the Department that she was married with a child. If she had revealed this, she would not have met the criteria to be a dependant applicant on her mother’s visa application.
The Applicant then applied for a Protection visa (Subclass-866) on 30 March 2015.
In her visa application, the Applicant stated that she is a Christian who has been married since [August] 2010 and that her husband and daughter at the time of the visa application were in Ethiopia. In addition to her immediate family her half-brothers also reside in Ethiopia and her late father, mother, half-sister, brother-in-law, nieces and nephew reside in Australia.
Documents before the Tribunal
The Tribunal has before it, the following documents in making its decision:
-Department File [Reference], containing all material before the Department Delegate at the time of their decision
-Letter of Support and a Provisional diagnosis from a Psychologist
-Submissions from the suspended representative dated 14 November 2019
-Letter of Support from Australia Red Cross dated 12 September 2019
-Letter of Support from [D] from the [Church] of Melbourne
-Letter of Support from [Mr E] from [Employer]
-Letter of Support from [Ms F], the President of the [Organisation] in Victoria)
-Tax Assessments
Claims
The Applicant’s claims are summarised in her visa application, the delegate’s decision and the submissions made by her ex-representative to the Department and the Tribunal. The Applicant claims that:
·Her father fled Ethiopia before she was born because he was an active supporter of Arbengnoch Ginbot-7. She came to Australia with her mother in 2011 to be re-united with her father.
·Along with her father, the Applicant publicly denounced the Ethiopian ruling political party by supporting the Ginbot-7.
·Both herself and her father (until his death in [Year]) were active members of the Ginbot-7 and they both campaigned against the inhumane treatment of Ethiopians by the ruling political party of Ethiopia.
·If she were to return to Ethiopia, she would be isolated, mistreated for the time she has spent overseas.
·As a woman in Ethiopia, she did not have the freedom to make her own choices. Her daughter who is in Ethiopia was born out of wedlock and this is not culturally acceptable in Ethiopia. To save herself and her immediate family from societal discrimination she married the father of her daughter, to whom she claims to be married still.
·If she is forcibly removed to Ethiopia, she will face persecution by the Ethiopian authorities for being an active supporter of Ginbot-7 and she will suffer negative consequences of being inhumanely treated, imprisonment and rape.
·She claims that internal relocation within Ethiopia is not possible because the political party against whom Ginbot-7 and herself have been dissenting, will use law enforcement authorities to capture and persecute her.
Country Information
The most recent Report by the Department of Foreign Affairs and Trade (DFAT) on Ethiopia, dated 12 August 2020, provides the following information in relation to matters relevant to this case:
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. Antigovernment protests were often dispersed through force, and participants arrested.
Freedom of political expression has expanded since 2018. More than 10,000 political prisoners have been released since 2018 (a process initiated by the Desalegn Government), including senior opposition leaders Andargachew Tsege of Ginbot 7 and Merera Gudina and Bekele Gerba of the OFC. In June 2018, parliament lifted its terrorist designations of Ginbot 7, the OLF and the ONLF. These groups subsequently renounced armed struggle and returned to Ethiopia, where they operate as registered political parties. In July 2018, federal parliament amnestied thousands of individuals charged with treason and other crimes against the state. This has enabled high-profile opposition figures, including Berhanu Nega of Ginbot 7, to return from exile and resume their political activities. According to the federal government, over 13,000 people have been released under the amnesty law. Political opposition parties now operate with greater freedom, although some report intimidation and obstacles to holding rallies due to a lack of protection in regional states. In January and February 2020, over 100 OLF supporters were reportedly arrested across Oromia State, while some members of the National Movement of Amhara (NaMA) – an opposition party formed in 2018 that espouses Amhara nationalism – were detained in connection to the alleged coup attempt in June 2019. DFAT is unable to verify if these arrests were politically motivated. A local source involved in politics told DFAT they were able to express their political views freely without fear of arrest and prosecution. Anti-government protests are common — in January 2020, largescale anti-government protests took place in Amhara State in relation to the abduction of 27 ethnic Amhara university students in Oromia State. Protesters accused Prime Minister Abiy of not doing enough to secure the students’ release.
In June 2018, the government established an Advisory Council for Legal and Justice Affairs comprising independent legal professionals to review and recommend reforms to laws that had been used to restrict political, civic and press freedoms (namely, the ATP, the Charities and Societies Proclamation, and the Freedom of Information and Mass Media Proclamation). The Advisory Council has a three-year mandate.
The Charities and Societies Proclamation was repealed and replaced by the Organization of Civil Society Proclamation in February 2019. The new law is in operation and has been well received by civil society organisations. A revision of the ATP was adopted on 2 January 2020. It is a significant improvement on the previous ATP but has still drawn criticism from civil society groups, including Amnesty International, who fear it could still be used against those critical of government. Replacement legislation for the Freedom of Information and Mass Media Proclamation was before federal parliament at time of publication. While these laws remain in force, they have been used only sporadically since April 2018.
Human rights organisations have particularly welcomed the government’s commitment to review and revise the ATP, which was widely considered to fall short of international human rights standards. The old ATP contained a broad definition of ‘terrorist acts’ and was used extensively to arrest and prosecute critics of government policy before April 2018. Under the ATP, detainees could be held without charge for 28-day periods up to a maximum period of four months. In practice, many were held for considerably longer. Bail was not available for persons charged with terrorism offences. Those charged under the ATP can face up to 20 years’ imprisonment.
Under the new ATP, a person must incite terrorist acts to be prosecuted (rather than simply ‘encouraging terrorism’) and workers’ rights to strike have been strengthened (illegal strikes that affected public services used to be classed as terrorist acts). However, Amnesty International believes opportunities to abuse power still remain. For example, the proclamation criminalises ‘intimidation to commit a terrorist act’.
According to the federal government, about 300 people were arrested in connection to the alleged coup attempt in June 2018. DFAT understands a significantly higher number of people were arrested, including activists, journalists, government officials and members of the NaMA. The majority of arrests occurred in Amhara State; over 40 were detained in Addis Ababa. Most were subsequently released, including 22 in October 2019. A total of 58 people (45 in Amhara State and 13 in Addis Ababa) were charged under the ATP. In February 2020, the federal government said it had dropped charges ‘for the national good’ against some individuals – including NaMA members – suspected of involvement in the alleged attempt, as part of a broader pardon of high-profile detainees.
Local sources told DFAT that, traditionally, being a member of the EPRDF increased one’s chances of gaining employment in the public sector and earning subsequent promotions, including in the judiciary, police, and public schools and universities. DFAT heard anecdotally that, while the practice of ruling party members being advantaged in public sector employment and promotions persisted, it was not as pronounced under the current federal government.
DFAT assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.
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.
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. 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 125th out of 153 countries for economic participation and 140th for educational attainment in the 2020 Global Gender Gap Index.
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 (see Judiciary). 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. According to reports, men widely consider hitting or beating their wife to be justified in certain circumstances, including where a wife has burned her husband’s food, argued with him, left the house without telling him, neglected the children or refused to have sexual intercourse with him. A local source told DFAT there was an acceptance among many women to tolerate domestic violence and submit to the sexual desires of their husbands.
The authorities have taken measures to combat gender-based violence. In 2010, the federal government developed a Strategic Plan for an Integrated and Multi-Sectoral Response to Violence against Women and Children and Child Justice in Ethiopia. Protection units for women and children operate in some police stations and prosecution offices, and there are special benches dealing specifically with violence against women in federal and regional courts. The government has committed to establishing a free hotline service for victims of gender-based violence. According to local sources, there are 11 shelters countrywide for women escaping domestic violence. Shelters typically accommodate between 20 and 50 women. A woman can stay in a shelter for a maximum of 1.5 years. Shelters include counselling services and childcare centres, allowing women to bring their children and to pursue employment. Some shelters are government-run, while some are administered by NGOs with UN support. Some local charities provide financial assistance to victims of physical and sexual abuse. One such charity, Agar, operates in Addis Ababa and Oromia and Amhara states.
Local sources told DFAT that, while services for victims of gender-based violence exist, including shelters, they are insufficient. Demand for shelters is reportedly increasing, particularly among younger women, but they remain scarce — space constraints mean women are often turned away. Of the 11 shelters currently in operation, three are located in Addis Ababa, and only one in Oromia State (covering a population of over 30 million). There are no shelters in Afar, Gambela and Somali states. 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.
State Protection
Ethiopia has an extensive security and intelligence apparatus, a legacy of its previous political systems. The state exercises control over most of the country, and it has largely been effective in maintaining law and order and protecting the population from major crimes, including terrorism. The security and intelligence apparatus was used in the past to monitor and suppress dissent, and had a history of using force to quell instances of unrest, including large-scale anti-government protests. Prime Minister Abiy has sought to impose greater discipline and accountability on the security forces, including by punishing past wrongdoings, as part of broader efforts to strengthen the professionalism and civilian oversight of the security forces (local sources claim this has had a deterrent effect on government forces). According to the national report it submitted ahead of its most recent UPR (May 2019), the federal government is developing legislation on police use of force and accountability, and plans to establish an independent mechanism to which complaints of ill-treatment by security and law enforcement authorities can be submitted, but this is not yet legislated. Regional state governments are making parallel efforts to reform law enforcement at the state level. A proliferation of ethnic-based militias since 2018 has challenged state authority and eroded the rule of law in some parts of the country, particularly in western Oromia State.
Government forces have shown greater restraint toward protesters since April 2018. Local sources told DFAT that non-state actors now posed a greater threat to safety than did government forces. In a report presented to federal parliament in January 2020, the EHRC claimed that human rights violations committed by government forces had declined, with most violations now perpetrated by non-state actors.
DFAT assesses that, overall, federal and regional security forces are largely effective at maintaining law and order and in providing protection from threats by non-state actors, particularly in major urban centres. However, DFAT assesses that the emergence of armed, invariably ethnic-based non-state actors has increasingly challenged the state’s monopoly on the use of force and its concomitant ability to provide protection in remote areas and along borders separating Ethiopia’s regional states.
Treatment of Returnees
The authorities have typically welcomed voluntary returnees to Ethiopia, including, since April 2018, government critics and opponents. DFAT assesses that returnees, including failed asylum seekers and/or government critics and opponents, face a low risk of monitoring, harassment, detention and official discrimination. While the authorities have significant intelligence-gathering capabilities and are likely to be aware of major anti-government protest activity undertaken in other countries and online, DFAT assesses that people who openly criticise the ruling party while they are outside of Ethiopia face a low risk of official harm on their return to Ethiopia.
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.
Amharas
The Amhara people are the second-largest ethnic group in Ethiopia, at 26.9 per cent of the population. While they reside predominantly in Amhara State, ethnic Amharas are present throughout Ethiopia, with significant populations in Oromia and SNNP states (2 million and 420,000, respectively). Nearly 1.3 million Amharas were residing in Addis Ababa at the time of the 2007 census, making them the single-largest ethnic group in the capital. Most Amharas are Orthodox Christian. Their language, Amharic, is the official national language. The Amhara governed Ethiopia for the longest period before the EPRDF came to power in 1991, including during military rule and the era of the monarchy. Like the Oromo, the Amhara felt marginalised by the Tigray under the EPRDF, and protests in Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018. Similarly to the Oromo, Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression.
The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military (until recently Amharic was the sole working language of the federal bureaucracy). Roughly a quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers at the time of publication. Political parties representing Amhara interests are active. DFAT assesses the arrest of Amharas during the 2014-18 anti-government protests was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. The Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are a minority.

Additionally, the Tribunal has considered the country information provided by the Applicant, including an Amnesty International Report entitled “Beyond Law Enforcement – Human Rights Violations by Ethiopian Security Forces in Amhara and Oromia”, and an extract of a speech made by Mr Shimeles Abdisa in Addis Ababa. The speech by Mr Shimeles Abdisa broadly discusses languages in Ethiopia. The Applicant has not explained what portions of the country information are relevant.
The Amnesty International Report, from May of 2020, is not as recent as the DFAT Report. The Report indicates, consistently with the DFAT Report that gender-based violence, including rape and sexual assault, is a widespread concern, but that it has been criminalised.
Credibility
The Tribunal asked the Applicant why she had provided incorrect information in conjunction with her Subclass 309 visa, which was subsequently cancelled. The Applicant claimed that she had an unplanned pregnancy, and that this is frowned upon in Ethiopia. However, the Applicant got married in Ethiopia to the father of her child, after the birth of her daughter. She said she “had to get married” in order for her daughter to have a father. The Applicant did not explain why this meant that she needed to be untruthful to the Australian authorities in her visa application.
The Tribunal does not accept the Applicant’s explanation as a reasonable basis for her lack of honesty and considers that the Applicant deliberately misrepresented her marital and parental status as she knew that she otherwise would not have been eligible for a dependant visa, as she could not be a dependant of her mother as a married woman with her own child.
In other words, the Applicant is prepared to be untruthful in circumstances relating to her visa application such that the Tribunal considers this is a factor to be considered when attributing weight to her evidence.
Evidence from the Applicant’s witnesses
The Applicant’s witness, her niece [Ms B], provided a Statutory Declaration dated 14 August 2022. [Ms B] was born in [Country 1] and has lived in Australia since 2004. She has not lived in Ethiopia, and confirmed that she does not have any first-hand knowledge of the Applicant’s claims. [Ms B] conveys concern for the Applicant, as could be expected of any caring family member.
[Mr A] gave evidence that he become the Applicant’s friend through church. As with [Ms B], [Mr A] has no direct evidence in relation to the Applicant’s concerns but expressed general agreement with the Applicant that it would be difficult for her to return to Ethiopia.
The Applicant did not call her mother to give evidence to the Tribunal, but she told the Tribunal that she is concerned about her mother’s welfare (she resides in Australia), if she returns to Ethiopia. She says that her mother has health care issues that require support, and that she will be unable to provide this if she returns to Ethiopia. While the Tribunal appreciates that the Applicant would like to care for her mother, this is not relevant to the consideration of whether the Applicant meets the criteria for a protection visa.
The Applicant’s Husband and Daughter remain in Ethiopia
The 12 September 2019 letter from the Australian Red Cross confirms that in April of 2019, the Applicant sought assistance to search for her husband and daughter as she had heard “from contacts that they had left Ethiopia and went to [Country 1]”. The letter confirms that:
In August 2019, you advised us of the good news that you managed to locate [your husband and daughter], via contacts in [Country 1]. You also confirmed that you are able to maintain this contact.
At the time of hearing, the Applicant’s teenaged daughter was currently living with her father’s family (the Applicant’s husband) in Ethiopia, in Addis Ababa.
The Applicant claims that her husband’s whereabouts are unknown, and that he was last living in Addis Ababa, with their daughter.
The Applicant said that her husband was taken last year by the government militia and police. She says that she knew he had been kidnapped through family in Ethiopia, but that they do not have any information about where he was taken. She says they don’t know if he is prison, taken somewhere else, or killed.
The Tribunal asked if the kidnapping had been reported to the police, and the Applicant said that it had been reported by the family “over there” who “went to every police station asking about him” but nobody knows where he is. The Tribunal queried whether a report had been filed, and the Applicant said she did not know, but that her relatives went to different police stations and asked. The Tribunal has some difficulty accepting that the Applicant would not have made efforts to determine whether a formal report had been filed with police, if she genuinely believed that her husband had been kidnapped. When asked about this, the Applicant told the Tribunal that people are scared of going to the police station, and there is risk they will be arrested if they go to ask after someone. Yet, the Applicant also told the Tribunal that her relatives went to “every station” – she told the Tribunal that it is “repeat” visits to the police station that cause difficulty.
The Tribunal considers the Applicant’s evidence on the point about whether the Applicant’s husband was kidnapped to be inconsistent, and unpersuasive in that if her Ethiopian relatives were genuinely fearful, they would not have visited the police stations as claimed. It does not, in the Tribunal’s view, make sense that the Applicant’s relatives would be willing to search for him by visiting each station just once, yet be unwilling to file a formal police report indicating they believed he was missing.
The Applicant has demonstrated that she understands the mechanism to make a “Restoring Family Links (Tracing)” program report, having done so with the Australian Red Cross in 2019. However, she has not done so in relation to the more recent allegation of kidnapping of her husband.
The Tribunal does not accept, on the basis of the evidence before it, that the Applicant’s husband’s whereabouts are unknown to her, or that he is in fact missing.
The Applicant’s involvement in the Ginbot-7
The Tribunal asked the Applicant about her claims to have been involved in the Ginbot-7, flagging that it has now been 11-years since the Applicant lived in Ethiopia and Ginbot-7 is no longer listed as a terrorist organisation, as flagged in the delegate’s decision record, which the Applicant provided to the Tribunal in conjunction with the review. The Applicant responded that it was true that Ginbot-7 was “working with the government” in Ethiopia and is no longer a terrorist organisation, but that she was concerned about her Amhara ethnicity.
On this basis, although the Tribunal accepts that the Applicant has been a Member of the Ginbot-7, the Tribunal finds that the Applicant does not have a well-founded fear of persecution in Ethiopia on the basis of her political opinion or membership of the Ginbot-7 at the present time.
The Applicant’s status as an Amharic woman
As a woman, the Applicant fears that she would be raped and exposed to violence were she return to Ethiopia. She says that this is commonplace and that pregnant women are being exposed to forced abortions. She describes Ethiopia at present as being “lawless” and claims that she would be vulnerable given her status as an Amhara woman.
The Applicant says that she would be discriminated against as she has had a child out of wedlock, and further claims that her free will was supressed in that she had to marry her husband. In her protection visa application, the Applicant says that she was married in August of 2010, and that the relationship with her now husband began in January of 2007. The Applicant’s daughter was born in [Year], and is now [Age]-years old. The Tribunal thinks it unlikely that the Applicant, now married, with a teenaged daughter, faces any real risk of being identified as a woman who had a child out of wedlock.
The Applicant has raised concerns that she would be returning to Ethiopia as a single woman. However, the Tribunal does not accept that the Applicant is unaware of the whereabouts of her husband, and on this basis finds that the Applicant would be returning to Ethiopia as a married woman. In her protection visa application (in February 2019) the Applicant indicated that she contacts her daughter and husband everyday over the phone, and that they live in Ethiopia.
There is limited information before the Tribunal supporting the Applicant’s claims to be Amharic. In her Application for a protection visa, the Applicant lists her preferred language as Amharic, and refers to the ethnic group she belongs to as being “Ethiopian”. She indicates that she is Christian. The Applicant has otherwise not particularised her concerns about returning to Ethiopia as an Amhara.
The Applicant claims to have been born in the Wolkait Gondar region of Ethiopia. Between January of [Year] through March of 2006, the Applicant claimed to live in [District], Ethiopia; and between January of 2006 and June of 2011, claimed to reside at [School] (a Catholic school).
The Tribunal finds that the Applicant is a Christian Amharic married woman, on the basis of the information available to it. However, the Tribunal is not satisfied that the Applicant is a single woman without male protection, or a single female household head, or a single Amharic. As addressed above, the Tribunal is not satisfied that the Applicant's husband has disappeared.
The Applicant has not provided any detail in relation to her concerns about being an Amhara, such that the Tribunal has no information before it of any past difficulties that the Applicant has had, nor of any future risks she believes she faces as an Amhara woman. The DFAT Report assessed Amharas as facing low risks of discrimination based on ethnicity. Although the Tribunal accepts that the Applicant is an Amhara woman, the Tribunal is not satisfied that Amhara women face a real chance of serious harm any more than Amhara persons do in general, in view of the country information outlined above, and in the absence of any particulars provided in response to the country information and Tribunal’s questions on this issue.
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. The DFAT report outlined above assesses that under the current federal government in Ethiopia, failed asylum seekers face a low risk of harm on their return to Ethiopia, including in circumstances where they sought asylum on political grounds. Again, as addressed above, the Tribunal has rejected the Applicant’s claim that she faces a real chance of serious harm on the basis of actual or imputed political belief, or her membership of the Ginbot-7.
Insofar as the Applicant raises 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, as this is not supported by the DFAT country information. There is nothing in the Applicant's background or personal circumstances that points to a risk to the Applicant herself. The Applicant has made very broad, undetailed claims only.
For the reasons given above, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection– s 36(2)(aa)
Having concluded that the Applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the Applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the Applicant's claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the Applicant meets the refugee criterion, that it is also not satisfied that the Applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Ethiopia, that there is a real risk that she will suffer significant harm as defined in s 36(2A) of the Act.
Having concluded that the Applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the Applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the Applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the Applicant does not meet the refugee criterion or the complementary criterion and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the Applicant has a right to enter and reside in a country other than Ethiopia.
DECISION
The Tribunal affirms the decision not to grant the Applicant a protection visa.
Bridget Cullen
Senior Member

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

[2023] AATA 1022

24 January 2023

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