1904450 (Refugee)

1904450 (Refugee) [2023] AATA 1023 (2 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1904450
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Jessica Henderson
DATE:2 February 2023
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 02 February 2023 at 11:18am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity – Oromo – religion – protestant Christian – social group – of south-western Oromo region – family history of detention and torture prior to 2018 – not-guilty finding in association with OLF – claim for protection in Australia prior to October 2018 – periods travelling in and out of Oromia, both within Ethiopia and off-shore – decision under review remitted
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, a citizen of Ethiopia, applied for the visa on 21 May 2018. Although accepting much of the applicant’s evidence, the delegate refused to grant the visa on the basis that the applicant did not, in 2018, have an ongoing risk profile in Ethiopia.
The applicant attended an interview conducted at the Perth Department of Home Affairs office on Monday 19 November 2018. He had the benefit of an interpreter available by telephone but was limited in his reliance on the interpreter, speaking reasonable English for most of the interview.
Given the record of interview available to the Tribunal, and the unequivocal acceptance of the majority of the applicant’s evidence by the delegate, the Tribunal is able to reconsider the application on the papers. The dramatic change in circumstances in Ethiopia, and the international country information about Oromia and the Oromo gives rise to a change in the applicant’s risk profile based on the established facts.
BACKGROUND
The applicant claims to be of Oromo ethnicity. His passport indicates that he was born in Nekemte, Ethiopia, which is part of the Oromo region, and his evidence during the Department interview was clearly that he is Oromo. The delegate accepted that the applicant was Oromo and the Tribunal so finds.
The applicant describes himself as being a protestant Christian and there is no evidence to the contrary. The applicant has not claimed protection on the basis of his Christianity and there is no obvious reason why he would misrepresent his religion. The Tribunal finds that the applicant is a protestant Christian.
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
Recent political background in Ethiopia
The last Department of Foreign Affairs and Trade report for Ethiopia is dated 12 August 2020. It has been clear from the popular media that there have been substantial changes in Ethiopia since that date. Oromia has been described as ‘burdened with multiple crises’ including hostilities uprooting civilians and destroying infrastructure.[1]
[1] >
The Tribunal has had the benefit of country information gathered by the UK Home Office, which makes the following observations.
Ethiopia is home to over 80 ethnic groups and is made up of 11 Federal states organised along ethnic lines. When Abiy Ahmed became Prime Minister in 2018, promising political reform and reconciliation, it was anticipated that this would help to resolve the country’s longstanding political and ethnic divisions.
Prior to Ahmed’s election the dominant party in the ruling Ethiopian People’s Revolutionary Democratic Front Coalition, which governed for almost three decades, was the Tigray People’s Liberation Front. After a year in power Ahmed dissolved the EPRDF Coalition and created a new party, the Prosperity Party, which the TPLF refused to join. Rising tensions between the TPLF and Ahmed’s government contributed to the outbreak of civil war in the Tigray region in November 2020.
The war affected neighbouring regions such as Afar and Amhara, with the loss of thousands of lives and evidence of human rights violations committed by all parties. Reliable coverage of the conflict has been hindered by online misinformation campaigns, the arrest of journalists and limited access for international organisations to the conflict areas.
Some members of the Oromo ethnic group expected Ahmed, who is an Oromo, to bring positive change to their community. While he was quick to make well‑received reforms, such as the release of political prisoners, his attempts to move away from a federal to a unitary system of governance, with a strong central government, met with resistance from Oromo opposition parties and from other ethno‑regional groups, such as the TPLF, with opponents fearing that their autonomy was under threat.
Prior to 2018 the Oromo Liberation Front (OLF) was designated a terrorist organisation. The terrorist designation was lifted in July 2018. Disagreements over disarmament in October 2018 resulted in the OLF splitting into a political wing and an armed wing, referred to now as the OLA. Since the OLF‑OLA split other factions have formed within the OLF with members disagreeing over issues such as cooperation with the Prosperity Party and participation in June 2021 national elections. The main OLF has used statements on its website to distance itself from members of other factions.
The murder in June 2020 of a popular Oromo musician and government critic, Hundessa, was the catalyst for days of violent protest and unrest across Oromia. While estimates vary, more than a hundred people are reported to have been killed in the ensuing mob violence and government crackdown. Thousands were arrested including members of the OLF and other main Oromo opposition party, the Oromo Federalist Congress, both of which the government accused of inciting violence.
While the OLF was recognised as a political party in November 2019, its ability to participate in the political sphere has been limited by various factors, including the widespread closure of offices and the arrest of its leaders, members and supporters in the run‑up to the postponed national elections. Elections eventually took place in June 2021. The party withdrew from the elections, alleging that the arrests had left it unable to effectively organise. The election campaign was dominated by the ruling Prosperity Party which ran in 103 out of 170 constituencies in Oromia uncontested.
Since the return of the OLF to Ethiopia in 2018, the OLA has continued its armed opposition to the government. The OLA was designated as a terrorist organisation in May 2021, and in August 2021 the group formed an alliance with the TPLF against the government. The OLA is the most active in the west and south of Oromia state. There was an increase in OLA activity in 2021 and while the majority of the group’s activity has involved clashes with the state, the group has also been linked to attacks on civilians, including Oromia‑based civilians of Amharan ethnicity.
The exact nature of the relationship and/or separation between the OLF and the OLA is uncertain, with some sources suggesting that the OLF and OLA continue to be closely linked. The difficulty of distinguishing between the OLF, the OLA and civilians who have no connection to either, is also apparent in the actions of the state. While the Ethiopian government has publicly attempted to separate the OLF, which is a registered political party, from the OLA, which is a designated terrorist organisation, there have been reports of arrests and extrajudicial killings of people who have been accused of having links to the OLA, but who deny any involvement.
Nekemte, the applicant’s hometown and the place where his family still resides, is at the centre of the road network for south-western Ethiopia. It appears that this area has been the location of considerable civil unrest and an active antigovernment insurgency since mid-2020 due to OLA connections in the region. In November 2022 protests were held in high schools and universities across Nekemte. In December 2022 the UN’s aid coordination agency, OCHA, warned that the security situation in Ethiopia was ‘fast deteriorating’ due to the OLA’s expansion during the Tigray war. An increase in ethnically based massacres was also reported, with the OLA targeting Amharas in Oromia and ethnic militias from Amhara killing Oromo citizens.
Human Rights Watch has noted that government counter insurgency operations in the region have resulted in gross abuse of human rights in relation to the civilian Oromo population.[2] In this region “[r]eports of extrajudicial killings mass arrests and detentions and violence against ethnic Oromo civilians, including medical professionals, accused of supporting or being sympathetic to the armed rebel group the Oromo liberation Army (OLA), were widespread.”[3]
[2] See Human Rights Watch, World Report, Ethiopia: Events of 2020, 14 December 2020, p 1
[3] Human Rights Watch, World Report, Ethiopia: Events of 2020, 14 December 2020, p 2
A state of emergency was declared in November 2021 when the alliance between the OLA and the Tigrayan Defence Forces made gains in Oromia. The state of emergency permitted the arrest of any person suspected of collaborating with a terrorist group, and resulted in the detention of an estimated minimum 1000 people, mostly of Tigrayan origin. The government called on citizens to prepare to defend the capital, with Prime Minister Ahmed “issu[ing] a terrifying call for citizens to take up arms to defend his government — demanding that loyalists double efforts to defend the seat of power using "any type of weapon" available to them. "Dying for Ethiopia is a duty for all of us," declared the prime minister.[4]
[4] Debra Patta, ‘Ethiopian leader calls on citizens to defend his government as Tigray rebels make gains’, Reuters (2 November 2021) >
In January 2022 the United Kingdom’s Independent Chief Inspector of Borders and Immigration (ICIBI) published a report in review of the July 2020 Home Office Country Policy and Information Note on Ethiopia: Opposition to the Government. The report observed that since 2018 there have been large numbers of arrests in Tigray, Amhara, and Oromia regions in particular (even before the start of the hostilities in the North), constraints on freedom of expression, and curtailment of the activities of newly-registered political opposition parties and concluded that the generalisation that there is evidence that torture is no longer routine or widespread has so many exceptions and has been so soundly reversed in respect of those engaged in protests and armed protests against the state, that it is unhelpful and/or misleading.
The balance of the country information suggests that the situation in Ethiopia remains volatile and constantly changing. Human rights abuses are committed by the government and by armed groups unrestricted by government intervention or state protection. Conflict and violence, particularly ‘along ethnic or communal lines’, occurs across the country.[5]
[5] Human Rights Watch, World Report 2022: Ethiopia (2022) >
It is against that backdrop that the applicant’s claims must be considered. The political situation in Ethiopia is extremely complex and imputed political affiliation with the OLA can quite clearly lead to torture and death on what appears from the country information to be very little evidence and no judicial review.
Applicant’s history
The applicant says that his father was an active supporter of the OLF, and that his father was sent to prison on multiple occasions for periods of 5 to 6 months. The applicant’s evidence is that he is unsure how his father died but he believes it was related to the beatings and torture that he received in prison. That is consistent with country information from the US State Department and the UK Home Office, both of which report that prison conditions in Ethiopia are harsh and often life threatening. The 2020 DFAT Report for Ethiopia indicates that there is no reliable public information on deaths in custody in the Ethiopian prison system because access by independent monitors is severely limited.
The applicant’s evidence about his father during his Department interview was persuasive, and the delegate accepted it. The Tribunal finds that the applicant’s father was an active supporter of the OLF, who died in or as a result of being in prison in Ethiopia.
The applicant says that he was arrested in March 2011 and accused of collecting and passing information from the OLF to the Oromo community, as well as from government offices to the OLF. He denies that this was actually the case. He says that he was held in prison for four months, during which time he was beaten regularly and pressured to make a false confession against his work colleagues. He says that he was released in July 2011 after a trial where he was found not-guilty. He says that he was not provided with any paperwork or documents in relation to this experience.
The applicant presents on the interview recording as a credible historian, who was able to provide a fluent and internally consistent account of his experience. It is consistent with the available country information prior to 2018, which indicated that ethnic Oromos were often arbitrarily arrested and accused of belonging to the OLF, banned at that time. Movement in and out of the Oromo region as a driver does appear on the country information to have been taken as a potential indication of political dissent. The delegate accepted the applicant’s evidence and was satisfied that he was telling the truth.
The Tribunal finds that the applicant was arrested in March 2011 on a charge of OLF involvement and that he was released in July 2011 after he was found not-guilty.
In 2012 the applicant studied [at] [University] and received his [licence] in January 2013. He was subsequently employed in shipping, spending long periods off-shore. On his return to Ethiopia in 2017 he was arrested and questioned about his long periods of time abroad. He was held in prison for a month, until his mother arranged bail for him. The delegate accepted the applicant’s account of the 2017 imprisonment, and the Tribunal accepts that it occurred.
The applicant was granted a ZM-988 crew-member visa for Australia on 20 April 2018. [In] April 2018 the applicant arrived in Australia on board the vessel that he was employed to work on. His visa expired on 8 May 2018 and he applied for a protection visa on 21 May 2018.
The applicant has two brothers and two half-brothers. He says that at the time of his protection visa application one of his brothers was imprisoned. His brother was targeted by Ethiopian authorities in 2016 after he participated in demonstrations and had been held in prison until late in 2018. The delegate accepted the applicant’s evidence about his brother’s experience, which is consistent with the country information available to the Tribunal. The Tribunal finds that the applicant’s brother was imprisoned for a period of two years after participating in protests in 2016 and had not been released at the date of the applicant’s application for a protection visa.
Ethnicity
Although the current Prime Minister is Oromo, it is clear from the country information that the state is unable to protect the Oromo from inter-ethnic violence in Ethiopia at present, should they have a risk profile for any reason.
Further, being Oromo increases the chance of being suspected by the government of OLA involvement.
The Tribunal does not consider that merely being Oromo gives rise to a real chance of serious harm in Ethiopia, but it is a relevant factor in conjunction with the applicant’s other characteristics.
Religion
The Tribunal has accepted that the applicant is a protestant Christian. The applicant has not made a claim for protection on that basis.
Violence towards Christians in Ethiopia is an emerging problem in Ethiopia. It has arisen recently, and would not have been an issue for the applicant prior to his last departure from his home.

Ethiopia has a long and extensive Christian history. The second country in the world to officially adopt Christianity, for 15 centuries the Ethiopian Orthodox Tewahedo Church has survived estrangement from Rome, the spread of Islam, and repeated colonialization attempts. The current prime minister is Christian, as are millions of other citizens.
The current regime has seen the elevation of extremist orthodox church voices. Evangelicalism is described as ‘exploding’ in Oromia and the southern regions of Ethiopia by Andrew DeCort, who holds a doctorate in religious and political ethics from the University of Chicago. Professor DeCort described the situation in Ethiopia as at 18 June 2022 in the following terms:
A devastating civil war has raged in the north for 18 months. Tens of thousands of people have been killed, nearly a million Ethiopians face famine, and millions more are displaced. The seeds of future wars have already been planted.
War-like violence is ravaging various regions of the country, including Oromia, Benishangul-Gumuz, and elsewhere. Massacres, mass rapes, and other atrocities are becoming heartbreakingly normal headlines.
We’ve recently seen Muslims slaughtered and mosques burned down purportedly by “Christian extremists” in the historic imperial Orthodox capital of Gondar. State media has recently released an Islamophobic documentary blaming Muslims for Ethiopia’s extremist violence while churches also burn in other places. As an Ethiopian researcher told FP, “Everyone is a perpetrator somewhere and a victim somewhere else.”
With their new access to privilege and power at the Palace, few Christian leaders have publicly acknowledged this terrible violence is even happening. Some have scapegoated Islam, fueled Christian nationalist conspiracy theories, defended the civil war in the north—which incidentally pits mostly Orthodox Tigrayans against mostly Orthodox Amharas and others—and depicted the conflict as God’s will. Theologian friends have called me a “supporter of terrorists” for publicly saying what cannot be denied: The civil war is mass-producing poverty and devastating suffering for millions of ordinary Ethiopians.
In my nearly two decades studying and working in Ethiopia, I have never seen such bitter hatred and raw hopelessness. Media is saturated with polarizing “enemy” language, demonization, and hate. Genocide Watch places Ethiopia concurrently at Stages 5 “Organization,” 9 “Elimination,” and 10 “Denial” of genocide. The EPRDF was brutally totalitarian, and atrocities were common. But the radioactive enmity in Ethiopia today is on a new order of magnitude. African civil society organizations warn that violence on the scale of the Rwandan genocide could still erupt. [citations omitted]
There is nothing before the Tribunal to indicate that the situation has since improved.
In light of that analysis, it appears reasonably clear that there is a real chance that the first applicant will suffer serious harm for reasons of religion, should he return to Ethiopia.
Social group
The Tribunal is satisfied that the applicant is a member of a particular social group comprising the following combination of immutable characteristics:
a.Being of Oromo ethnicity from the south-western Oromo region;
b.Having a family history of detention and torture prior to 2018;
c.Having a finding of not-guilty in relation to association with the OLF prior to 2018;
d.Having made a claim for protection in Australia prior to October 2018, and not returned to Ethiopia after 25 October 2018 notwithstanding the change in government; and
e.Having spent periods travelling in and out of Oromia, both within Ethiopia and off-shore.
There is a real chance that the applicant’s history of family and suspected involvement with the OLF will bring him to the attention of the incumbent government on his return to Ethiopia. His record will reflect the multiple entries and exits from Ethiopia, and long periods abroad.
It is not clear whether his exoneration in 2011 will obviate or increase any suspicion that he is presently involved with either the OLF or OLA, because of the subsequent changes in the OLF and the creation of the OLA. It is possible that he would have been looked on more favourably if he had not been exonerated of OLF assistance, because of the early affiliation between the OLF and the incumbent prime minister.
The applicant’s failure to return to Ethiopia when an Oromo prime minister took office in 2018 may compound anti-government suspicions.
The Tribunal is satisfied that there is a real chance that the applicant will be suspected of OLA involvement or support.
Chance of harm to the applicant
A mere suspicion of OLA involvement gives rise to a real chance of serious harm for the applicant because, on the available country information, if he is suspected of pro-OLA political sympathies there is a real chance that he will be detained and tortured, without redress to judicial review.
There is also a real chance that the applicant will be exposed to sectarian violence if he returns to his home in Oromia; the only available option to him in the current political environment.
The Tribunal finds that the applicant has a well-founded fear of persecution for reasons of race, religion and his social group.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Jessica Henderson
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 1023

2 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction