1906335 (Refugee)

1906335 (Refugee) [2021] AATA 755 (21 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906335
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:C. Packer
DATE:21 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 21 March 2021 at 7:28pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – opposition party membership and activity in home country and Australia – detention and abuse – family members’ military service, political beliefs, memberships and activities – first husband killed, second husband disappeared after capture by separatist group – other party members, friends and daughter arrested and interrogated after applicant’s departure – ethnicity – member of a particular social group – elderly, widowed woman – physical and mental health – credible evidence – country information – ongoing ethnic, political and military conflict – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 36(2)(a), 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 dependants.
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 (the delegate) on 25 February 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a woman aged [Age], born in Ethiopia and a citizen of Ethiopia.
The applicant last arrived in Australia [in] September 2015, as a holder of a Tourist (FA-600) visa. She travelled on an Ethiopian passport issued [in] 2012 and expired [in] 2017.
On 1 December 2015 the applicant applied for a Protection (Class XA) 866 visa, and on 8 May 2018 she attended an interview with the delegate.
On 25 February 2019 the delegate refused the application.
On 18 March 2019 the applicant applied for review of the delegate’s decision.
The scheduled hearing on 17 February 2021 did not proceed because of a Covid lockdown. On 12 March 2021 the applicant attended an in-person hearing. She was assisted by a representative.
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether the applicant is entitled to complementary protection. A summary of the relevant law is set out in attachments. The applicant’s narrative is centred on her past political activities and profile as a Blue Party member/activist in Ethiopia and her continued political activities in Australia. She also claims to fear to return because of her Tigrayan ethnicity; her actual or imputed political opinion as a Tigrayan, and as a family member of military officers in the Derg; and her membership of particular social groups of single/widowed women in Ethiopia without a male protector, and failed asylum seekers returning to Ethiopia.
After considering her evidence and the material before the Tribunal, I find that her anti-government political profile (that includes departing Ethiopia having been released on bail) together with her Tigrayan ethnicity and background, and status as a single/widowed woman without a male protector, when considered cumulatively, lead her to meet the refugee criterion. My assessment follows.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS
Background
The applicant’s protection visa application provided some basic background information, and the applicant later supplemented this with further details including at the hearing.
In the written application, the applicant stated that she was born in Tigray province, Ethiopia. She was widowed in 1989. Her religion is Orthodox Christian. She speaks Amharic. She has secondary schooling and completed basic training in [subjects/skills].
She obtained her Ethiopian passport from the relevant authorities, issued [in] 2012 and expired [in] 2017, and she departed legally from Bole International airport [in] September 2015. She had previously visited Australia from [September] to [December] 2013.
She gave employment details: 1992- 1994, [Job task 1] in [Employer]; 1994- 2/2000, unemployed; 3/2000- 12/2013, self-employed selling [products] & Blue Party ([Job task 2]); 12/2013- 8/2015, unemployed.
She showed her family comprised four adult children, including a daughter in Australia: Son age [Age] (in [Country 1]); Daughter age [Age] (in Ethiopia); Daughter age [Age] (in Australia); Son (nephew by birth) age [Age] (in Ethiopia). At the hearing the applicant said she had last spoken to her children in Addis Ababa on the phone, and they spoke of ongoing suffering there and how the applicant’s sister had lost her job as a result of ethnic troubles and unrest.
Country information[1] shows that Ethiopia is a multi-ethnic federal republic in East Africa. Its capital city, Addis Ababa, is a major diplomatic hub, as seat of the African Union and the UN Economic Commission for Africa. The DFAT report shows in part:
·In 1974, a Communist military junta known as the Derg (‘Committee’) overthrew the long-serving Emperor, Haile Selassie, and abolished Ethiopia’s monarchy. Rebel forces from the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a multi-ethnic alliance led by the Tigrayan people, ousted the Derg in 1991, ending Ethiopia’s civil war. The EPRDF and its successor, the Ethiopian Prosperity Party (EPP), have ruled Ethiopia since. In 1993, Eritrea broke away from Ethiopia and established its own state, rendering Ethiopia landlocked. A border dispute between the two countries triggered a two-year war (1998-2000), in which 100,000 people were killed. Ethiopia is one of the most drought-prone countries in the world, and drought-induced famines in 1973-74 and 1984-85 resulted in more than one million deaths.
·Ethiopia’s current constitution came into force in August 1995. It established a federal system of regional states delineated according to settlement patterns, language and identity (i.e. ethnicity). This method of delineation essentially makes Ethiopia an ‘ethnic federation’, whereby the largest ethnic groups administer their own states and operate with considerable autonomy from the federal government. Ethiopia has nine states: (1) Afar; (2) Amhara; (3) Benishangul-Gumuz; (4) Gambela; (5) Harari; (6) Oromia; (7) Somali; (8) SNNP; and (9) Tigray, and soon a 10th state for the Sidama people.
·Political parties have existed in Ethiopia since the overthrow of the Derg in 1991, although the ability of parties not belonging to, or affiliated with, the EPRDF to operate freely was circumscribed. The EPRDF and affiliated parties controlled all tiers of government from 1991 to December 2019, when the EPRDF dissolved and reorganised as the Ethiopian Prosperity Party. The EPRDF was a coalition of four parties representing Ethiopia’s most powerful ethnic communities: (1) the Tigrayan People’s Liberation Front (TPLF), which founded the EPRDF and led the ouster of the Derg; (2) the Oromo Democratic Party (ODP), formerly the Oromo People’s Democratic Organisation, or OPDO; (3) the Amhara Democratic Party (ADP), formerly the Amhara National Democratic Movement, or ANDM; and (4) the Southern Ethiopian People’s Democratic Movement (SEPDM).
·The United Nations Population Fund (UNFPA) estimates Ethiopia’s population at 110 million. Around 70% is under the age of 30 (including nearly 40% under 14): only 4% are aged 65 or older. Ethiopia is ethnically and linguistically diverse, comprising more than 80 different ethnic groups and 100 languages. According to the most recent national census (2007), 10 ethnic groups have a population of one million people or more. The Oromo the single largest, at 34.5% of the population, followed by the Amhara (26.9%), Somali (6.2%), Tigrayan (6.1%), Sidama (4%) and Gurage (2.5%) peoples.
·Of Ethiopia’s states, Oromia is the most populous, with around 37% of Ethiopia’s total population, followed by Amhara (23.3%) and the Southern Nations, Nationalities and Peoples (SNNP - 20.4%), Somali state (6%), Tigray state (5.8%). Addis Ababa is Ethiopia’s largest city of around 4.5 million.
·Amharic is the official national language, although the government flagged in March 2020 its intention to grant similar status to the Oromiffa, Afar, Somali and Tigrinya languages. These languages already enjoy official status in the regional states in which they predominate. English is widely taught and spoken.
·Ethiopia’s economy has averaged double-digit growth over the last decade, making it one of the fastest growing economies in the world and the largest economy in East Africa. While consistently high growth has helped improve living standards and reduce extreme poverty levels, Ethiopia remains one of the poorest countries in the world.
[1] The Department of Foreign Affairs and Trade report, DFAT COUNTRY INFORMATION REPORT ETHIOPIA 12 August 2020, [ of claims
The applicant claims to fear persecution in Ethiopia from the Ethiopian authorities. Her key claims made in the application and at the delegate’s interview on 8 May 2018 were summarised by the delegate:
• The applicant grew up in Asmara, before Eritrea was independent from Ethiopia.
• The applicant’s first marriage was in July 1980, but he died fighting in the military against
Eritrea ‘straight after we married’.
• The applicant was pregnant from this marriage, and her child became a member of the
political party ‘Kinijit’, (The coalition for unity and democracy) after Eritrea’s independence.
• The applicant’s son was arrested and tortured in 2005 during the demonstrations against the government. He had ‘many problems’ with the authorities.
• In 2008 the applicant’s son bribed authorities to obtain a passport and departed. He has
never returned and now lives illegally in [Country 1].
• The applicant married her second husband, an ethnic Oromo, [in] September 1984. They had two daughters. Her whole family share her anti-government political views.
• The applicant’s second husband fought for the Derg regime against the Eritrean People’s
Liberation Front, later being transferred to fight against the TPLF. He was captured during the war in 1989 and has not been seen since.
• In 1991 the applicant was expelled from Asmara with her family when the EPLF took over
Eritrea. They were sent to a refugee camp in Addis Ababa. She was assigned to work in a
[Workplace].
• The applicant was unemployed for six years then started her own retail businesses. She had been harassed about paying taxes.
• The applicant has been discriminated against because of her ethnicity as a Tigrayan.
• The applicant registered as a member of the Blue Party in November 2012 as she believed in the party’s ideology.
• The applicant attended meetings and participated in rallies regarding the 2015 elections.
• In 2015 the applicant was detained, beaten, interrogated and abused by police because of
her political activities. She was held in prison for one month.
• The applicant enlisted the help of the agent who facilitated her son’s departure from Ethiopia. He organised the exit stamp, and she was able to depart the country without issue.
• [In] September 2015 the applicant left Ethiopia and came to visit her sister in Australia.
• ‘On about 26 November 2015’ the applicant’s daughter in Ethiopia called her to say there was a warrant out for her arrest in Ethiopia. She said other members of the Blue Party had also been arrested. Some members told her daughter the authorities wanted the applicant.
• ‘Later in December 2015’ the applicant heard the police searched her house. They found her daughter at work and arrested her. She was interrogated about the applicant’s whereabouts.
• The authorities have also taken items and documents from the applicant’s house, and
interrogated her friend who was her guarantor when she was able to be released from prison.
• The applicant has become involved in political activities in Australia for Ethiopian political
parties, though the Blue Party is not active in Australia. She has attended demonstrations,
including when Ethiopian government officials came to Australia.
In the review, a submission by [Refugee services provider] of 14 December 2020 summarised the applicant’s claims:
5. The applicant’s statement provides significant details in support of her claims. We do not
propose to duplicate the statement, however a brief summary of those claims follows.
6. The applicant is a [Age]-year-old woman who was born in Asmara, Ethiopia. She is of Tigray
ethnicity and an Orthodox Christian.
7. The applicant was born at a time when Ethiopia and Eritrea were one nation. The
applicant’s interest in politics started at a young age as she grew up in a family headed
by her father [who] fought for the Derg regime, and who
believed strongly in a unified Ethiopia.
8. The applicant’s first husband, [H1], died soon after they were married in
1980 fighting in the military against the Eritrean fight for independence. The applicant
was pregnant at the time of his death. Their son, [son1], was
also politically active and was a member of the Kinijit party. He was involved in the
demonstrations against the government in 2005, and as a result of his activities he was
imprisoned and tortured. In 2008, the applicant’s son fled Ethiopia and now lives illegally
in [Country 1].
9. The applicant married her second husband, [H2], in 1984. He was of
Oromo ethnicity. They have two daughters, [D1] who is [Age] years old, and [D2], who is [Age] years old. [D1] lives in Addis Ababa, Ethiopia, and [D2] lives in Australia and is an Australian citizen.
10. The applicant’s second husband was [in] the Ethiopian army, and fought for the
Derg regime against the Eritrean People’s Liberation Front (EPLF) and the Tigray People’s
Liberation Front (TPLF). He disappeared in 1989 after being captured by the TPLF.
11. The applicant made numerous efforts to find her husband without success, and she has
not heard or seen of him since he disappeared in 1989.
12. In 1991, the applicant was expelled from Asmara when the EPLF took control of Eritrea.
She was living in a military camp with her children and her sister at that time, and they
were expelled as a result of being family members of an Ethiopian military officer. The
applicant then went to live in a temporary camp for displaced persons in Tigray on the
Ethiopian side of the border.
13. The applicant’s father, brothers and sisters joined her in the camp after they were also
expelled from Eritrea, and subsequently her father died soon after arriving in the camp.
The applicant believes his death was related to the stress of their situation.
14. The applicant was sent to [a] refugee camp in Addis Ababa in October 1991, and
lived there until she subsequently found members of her second husband’s family in
[Location 1] and then she relocated to a house they provided for her to live in with her
family.
15. The applicant lived in Addis Ababa from 1991 to September 2015, and worked on and off
during this period.
16. The applicant became the guardian of her nephew, [son2], in approximately 2002 when he was [Age] years old, and she considers him a son. He is now [age]years old and lives in Addis Ababa.
17. In 2012, the applicant registered as a member of the Blue Party (also known as the
Semiyawi Party) after being recruited by a friend of her brother. The Blue Party was an
opposition party in Ethiopia which promoted liberal democracy, unity and was against
division along ethnic, religious, regional and linguistic lines. The applicant was actively
involved in promoting and recruiting for the Blue Party, and participated in a rally during
the election campaign in 2015.
18. Following the applicant’s involvement in the rally she was detained, beaten, interrogated
and raped by members of the federal police in a police station in [Location 1], and then
subsequently she was taken to a prison in [Location 2] where she was held with 30-35
other women. The applicant continued to be interrogated and beaten during this period
by federal security officers. She was released after approximately one month.
19. The applicant struggled with mental health in the following period, and she made a
decision to leave Ethiopia to visit her daughter, [D2], in Australia. [In] September
2015, the applicant arrived in Australia on a Tourist (class FA, subclass 600) visa with the
intention of returning to Ethiopia after three months. She had previously visited Australia
for three months in September 2013.
20. In November 2015, the applicant was advised by her oldest daughter, [D1], that she
was wanted by the Ethiopian government in relation to her involvement with the Blue Party. She was also advised that other members of the party had been arrested, including the friend that recruited her.
21. In December 2015, the applicant was advised again by [D1] that the federal police had
searched her house, and they had arrested and interrogated [D1] and a friend of the
applicant, [friend1], about the applicant’s whereabouts. [friend1] had provided the
personal guarantee that secured the applicant’s release from prison in 2015.
22. The applicant, fearing for her safety should she return to Ethiopia, applied for a protection visa on * 2015 with the assistance of her daughter.
23. The applicant has continued to be involved in Ethiopian anti-government political activities during her time in Australia.
In submissions the applicant claims she has a well-founded fear of persecution in Ethiopia arising from:
a. Her Tigrayan ethnicity;
b. Her actual or imputed political opinion as a Tigrayan, and as a family member of
military officers in the Derg;
c. Her actual or imputed political opinion as a result of her own political activities and
her membership of the Blue Party;
d. Her actual or imputed political opinion as a result of her anti-Ethiopian government political activities in Australia;
e. Her membership of a particular social group (PSG) being single/widowed women in Ethiopia without a male protector; and
f. Her membership of a PSG being failed asylum seekers returning to Ethiopia.
Evidence
The evidence before the Tribunal includes the following material:
·the applicant’s Protection visa application form lodged on 1 December 2015, which includes her reasons for seeking protection in Australia
·Ethiopian passport pages
·the Protection visa decision record (‘delegate’s decision’) dated 25 February 2019, which is the subject of this review
·the application for review
·statements and submissions
·photos, a flyer and receipt
·Letters of support from [Organisation] in Victoria, and [a] church in Melbourne
·[Charity] letter of 20 December 2016
·A selection of her [Social media 1] posts from October 2020 to March 2021
·Medical and counsellor reports
The delegate’s interview on 8 May 2018
The Tribunal notes the delegate found the applicant to be a credible witness. The delegate’s decision of 25 February 2019 discussed the evidence given at the interview on 8 May 2018:
The applicant claims she was a member of the Blue Party. The applicant discussed the reasons she chose to join the Blue Party, and the political views her family held in relation to the government of Ethiopia. She discussed attending political events relating to the Blue Party, and how she was detained and tortured by Ethiopian authorities because of these activities. She provided documentation in support of her membership and political activities, and I found her to be detailed and articulate in her responses at interview.
Based on the information before me, I accept she was a member of the Blue Party in Ethiopia. I also accept she was actively involved with Blue Party events, and was detained by the authorities in Ethiopia as a result.
She also stated she visited her daughter in [Country 2] once.
The applicant discussed her political involvement in Ethiopian politics while in Australia. She talked about attending demonstrations, including when Ethiopian government officials came to Australia. She attended a meeting about overthrowing the government in Ethiopia, ‘in about February 2017’, and made a monetary donation towards the ESAT television station in Ethiopia. She claims she has attended meetings and gatherings for Ginbot 7, including events to get financial support for the party. She states she has made financial donations, and strongly supports the ideology of Ginbot 7, but is not a member of Ginbot 7 because she needs a referral and does not know anyone to assist her with this. She provided photographs that included herself and what looks like other Ethiopians in a room with flags and Oromia signs.
The applicant was detailed and consistent in her claims of political activities and level of knowledge of various political parties and events in Australia. She provided documentation in relation to her involvement in meetings and demonstrations in Australia, and I have no reason to doubt she has been attending such events. Based on the information before me, I accept the applicant has been politically active in relation to Ethiopian parties and politics while in Australia.
Medical information

Medical information concerning the applicant includes:
- Representative’s email of 22 February 2018 stated in part: “Our engagements with the client over the last week have been challenging as she presents as very tired and emotional. We note that the client has found discussing her experience of sexual violence extremely difficult and retraumatising.”
- Representative’s letter of 14 September 2018 stated in part: “We also wish to note that the Applicant has had difficulties disclosing some serious concerns about the welfare of her daughter, who remains in Ethiopia.”
- A medical/counselling report of 28/8/2018
- A Physiotherapist letter of 7/11/2018
- Medical report from counsellor of 5/1/2021
- A mental health report of 9 March 2021 provided at hearing
Country information
The DFAT report[2] states in part:
[2] DFAT COUNTRY INFORMATION REPORT ETHIOPIA 12 August 2020
2.36    The EPRDF was overwhelmingly voted into power in 1995, Ethiopia’s first democratic election. It was re-elected in 2000, 2005, 2010 and 2015, although international observers alleged voter irregularities in these elections. Opposition parties made significant gains at the 2005 election, winning 174 of 547 seats in the House of Peoples’ Representatives (the EPRDF took 327 seats) on a record voter turnout of 90 per cent.
Opposition parties, led by the Coalition for Unity and Democracy (CUD, also known as Qinjit), disputed the result and launched large-scale protests in Addis Ababa. These turned violent - clashes with government forces left nearly 200 protesters dead. Around 4,000 people were arrested, including opposition leaders. In response, the EPRDF restricted the space for political opposition. In July 2007, 30 opposition leaders were handed life sentences for their participation in the 2005 protests, but were immediately pardoned. In 2009, parliament adopted the Anti-Terrorism Proclamation (the ATP), under which large numbers of political
opponents, journalists and activists were arrested, effectively hobbling political opposition to the EPRDF (see also Political Opinion (Actual or imputed)). The EPRDF and affiliated parties won 546 of 547 seats in the 2010 national election, and all 547 seats in the 2015 election. The EPRDF and affiliated parties won 1,966 of 1,987 seats in the 2015 regional elections, thus retaining control of all states. National and regional elections were scheduled for 29 August 2020, but have been postponed due to the COVID-19 outbreak.
2.37    Ethiopia has witnessed significant changes in the political operating environment since April 2018. Restrictions on political opposition have eased significantly since April 2018, and political parties are able to operate more freely, particularly in Addis Ababa. To date, over 130 political parties have declared their intention to contest the forthcoming national election. Most are organised along ethnic lines.
2.38    In June 2018, federal parliament removed Ginbot 7 (Amharic for ‘May 15’, the date of the disputed 2005 election), the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The parties, which maintained armed wings and were committed to the overthrow of the EPRDF through militant means from their bases in Eritrea, were designated as terrorist organisations in June 2011. Ginbot 7, the OLF and the ONLF have since returned from exile and now participate in the political process. Other major opposition movements include the Ethiopian Federal Democratic Unity Forum (also known as Medrek) and Ethiopian Citizens for Social Justice (known as Ezema).
Medrek is a coalition of four parties: the Ethiopian Socialist Democratic Party (ESDP), the Arena for Sovereignty and Democracy, the Sidama Liberation Movement (SLM) and the Oromo Federalist Congress (OFC). Ezema was formed in May 2019 through the merger of several opposition parties, including Ginbot 7, the Ethiopian Democratic Party (EDP), the Semayawi Party (known as the Blue Party) and Unity for Democracy and Justice (UDJ, also known as Andinet, the successor party of the CUD/Qinjit). Some political parties promote openly nationalist platforms. Ezema is one of the few political parties that is not ethnicbased.
2.39    The Ethiopian Prosperity Party (EPP), formed in December 2019, merged into a single national party three of the four parties that previously formed the EPRDF (the ODP, ADP and SEPDM). The EPP also includes the former Afar National Democratic Party (ANDP), the Benishangul-Gumuz People’s Democratic Unity Front (BGPDUF), the Ethiopian Somali People’s Democratic Party (ESPDP), the Gambela People’s Democratic
Movement (GPDM) and the Harari National League (HNL). The ANDP, BGPDUF, ESPDP, GPDM and HNL previously governed Afar, Benishangul-Gumuz, Somali, Gambela and Harari states, respectively. They were affiliated to - but not formally part of - the EPRDF. Prime Minister Abiy justified the formation of the Ethiopian Prosperity Party on national unity grounds, claiming it would buttress efforts to move away from ethnic-based identity politics and toward ‘pan-Ethiopianism’. The TPLF, which traditionally dominated decision-making within the EPRDF but felt marginalised under Abiy, opposed the merger and refused to join
the EPP. The TPLF is seeking new alliances ahead of the next elections. These elections were planned for August 2020 but have now been indefinitely postponed due to COVID-19.
I fully considered the country information provided by the representatives including in submissions of 14 December 2020 and 19 March 2021.
The applicant appeared before the Tribunal to give evidence and present arguments, on 12 March 2021. The hearing was conducted with the assistance of an accredited interpreter in the Tigrinya Ethiopia and English languages. The applicant stated she understood the interpreter, and during the hearing she did not tell me she had any difficulties with the interpretation. As I discuss below at the hearing I treated the applicant as a vulnerable witness.
At the start of the hearing I acknowledged her health problems and asked whether she was well and able to talk about her claims, and she stated she was. During the hearing she appeared to fully understand questions and she gave answers and explanations albeit in an unfocused way. I assess that she was competent to give evidence and had a full opportunity to put forward her claims.
Assessment of claims: credibility
The applicant claims to be a national of Ethiopia. I sighted a copy of her passport. All the available evidence, including the applicant’s oral evidence and familiarity with Ethiopia, supports her claim to be an Ethiopian national. Ethiopia is therefore the country of reference for the purpose of assessing the applicant’s protection claims, and the receiving country when assessing her claims against the complementary protection grounds. Having considered the material before the Tribunal, I accept she has the claimed identity.
Her health and mental health
I have given appropriate weight to the expert reports provided. Considering the reports and information, together with the applicant’s evidence and submissions, I accept that the applicant has ongoing medical and mental health problems. I accept she has [medical conditions]. I also accept that her mental health problems concern depression with insomnia, and these have been attributed to her experiences in Ethiopia, and her concern with current conditions in Ethiopia. She is stated to have poor concentration, short memory loss, and lack of motivation. In Australia the applicant has received treatment for her mental health problems that includes medication. The most recent prognosis is that she will require ongoing medical and mental health treatment into the future. At the hearing I treated the applicant as a vulnerable witness.
Her residence in Ethiopia
Having considered the applicant’s evidence at the delegate’s interview, together with her evidence at the hearing, and together with supporting documents and photos, I find the applicant is a credible witness. I accept she is of Tigrinya ethnicity and that she has had a very difficult family life in Ethiopia with two husbands killed. I accept she was displaced from Asmara when the EPLF took control of Eritrea and eventually lived many years in Addis Ababa.
I accept she had been politically active in Ethiopia including as a Blue Party member, and that following her participation in a 2015 election political rally she was detained, interrogated, assaulted and raped. I accept she was released on bail with a condition that she would be re-arrested if she was again involved in political activity. I accept she continued her political activism in Australia since her arrival in September 2015.
I accept that she has few close family in Ethiopia- a daughter age [Age] and a young nephew whom she considers a son age [Age] both in Addis Ababa.
Conclusion
I have assessed whether, on the basis of the foregoing findings of fact, the applicant’s future conduct if she returns to Ethiopia, and relevant country information, the applicant has a well-founded fear of Convention-related persecution, now and in the reasonably foreseeable future.
Having considered the claims and evidence I find that the applicant is an Ethiopian national. She is an elderly and frail woman and a widow, of the Tigrinya ethnic group. She follows the Orthodox Christian religion. She has basic schooling and some basic trade courses but has scant employment experience. While she previously operated her own businesses in Addis Ababa from 2000 to December 2013 selling [products], she had then been unemployed up to her departure in August 2015. She arrived in Australia as a visitor for the purposes of visiting her daughter and grandchildren. At hearing she stated she does not have much to do with her daughter as they do not get along. She currently receives financial support from [Refugee services provider] and [Charity].
Addis Ababa, the capital of Ethiopia, is where she last resided and so I find it is most likely that if she returns to Ethiopia she would return to Addis Ababa.
Her return to Addis Ababa
The applicant is an Ethiopian national who last departed Ethiopia legally with a genuine Ethiopian passport that expired [in] 2017. She has evidence of her Ethiopian nationality and she would be able to seek a fresh passport or travel document from the Ethiopian Embassy in Canberra. I am satisfied the applicant will be able to travel to and enter Ethiopia.
In the DFAT report, DFAT broadly assesses that “under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds”.
However, there has been a significant political, social and security development in Ethiopia since the DFAT report was published. In late 2020 there has been an armed conflict between the Ethiopian armed forces and the Tigray state, with significant loss of life and an ongoing humanitarian crisis. An authoritative February 2021 briefing by International Crisis Group[3] states in part:
[3] International Crisis Group: Crisis Group Africa Briefing N°167 Nairobi/Brussels, 11 February 2021, Finding a Path to Peace in Ethiopia’s Tigray Region
What’s new? After weeks of fighting in Ethiopia’s Tigray region, federal troops removed the regional government and declared victory. Yet thousands have died, hundreds of thousands are at risk of starvation and the conflict continues. Addis Ababa has established an interim administration, but ousted Tigrayan politicians say they will fight back.
Why did it happen? Relations between Addis Ababa and Mekelle tanked after Prime Minister Abiy Ahmed took office in 2018 and Tigray’s leaders lost federal power. Tensions spiked when Tigray defied central authority by holding regional elections in September, culminating when Tigrayan forces captured the national military command in the region, triggering federal intervention.
Why does it matter? The conflict has poisoned relations between Tigrayan and other Ethiopian elites and inflamed public opinion in Tigray against the federal authorities, who may well struggle to administer a restive region. If Addis Ababa’s energies are drained by enforcing its rule on Tigray, other Ethiopian ethno-nationalist forces may be emboldened.
What should be done? To get Tigray’s public on side, Ababa Ababa should ensure that Eritrean and Amhara regional forces that participated in the intervention withdraw. It also should urgently allow aid to reach all Tigrayans who need it. Ultimately, inclusive dialogue is needed to address federal-Tigray disagreements and wider disputes over regional autonomy.
Overview
Following weeks of conflict, Ethiopian federal forces declared victory over the northern Tigray region’s leadership after taking the capital Mekelle on 28 November 2020. The army says it is mopping up, although ousted Tigrayan leaders and the UN say fighting is still widespread. The war has killed thousands and displaced maybe a third of Tigray’s population amid reports of atrocities by all sides. More than 4.5 million people in Tigray reportedly require emergency food aid and hundreds of thousands could starve. Federal troops are backed by Amhara factions claiming areas they say Tigray annexed in the early 1990s. It is now apparent that Eritrean troops intervened to support Ethiopia’s army, though both Asmara and Addis Ababa deny it. …
The war between Addis Ababa and Mekelle was driven by bitter divisions over power sharing. Tigray’s leaders lost much of the disproportionate federal influence they long held, and which incurred the resentment of other political elites and many Ethiopians, after anti-government protests paved the way for Prime Minister Abiy Ahmed to take office in 2018. …
The federal military intervention removed the TPLF administration from the seat of power in the space of a month, with Addis Ababa establishing a provisional replacement in Mekelle from whence the TPLF leadership fled. It has come at great cost, however, and most wanted Tigrayan leaders are still at large despite some of them being killed (including a former foreign minister) and arrested in recent weeks. Still, a large majority of Ethiopians outside Tigray, including non-Tigrayan opposition leaders and some from the region itself, appear to support federal actions in the region. Many endorse Addis Ababa’s view that the TPLF was responsible for abuses when in power and has since sponsored ethnic conflicts in order to undermine reforms. The federal government says it will rebuild infrastructure damaged during the intervention and restore public services that were interrupted. A federal state of emergency is in place until early May in Tigray and, so far, no elections are scheduled for the region though they are set for 5 June everywhere else in the country. …
The war has killed thousands, including civilians at the hands of federal and Eritrean troops or Amhara and Tigrayan militiamen. It may have displaced more than two million people inside Tigray and prompted almost 50,000 mostly Tigrayan refugees to flee into Sudan, according to the interim administration and the UN, which last month reported a “dire” humanitarian situation. In Tigray, 1.6 million people depended on aid even before the war. The conflict has now cut off many of them from that assistance, and interim Tigray rulers appointed by Addis Ababa now say the number in need is more than 4.5 million, around three quarters of the region’s population. …
There is also renewed state intolerance of dissent. [footnote 75 “Arrest of cameraman in Ethiopia signals wider crackdown”, The New York Times, 30 December 2020; “Lidetu bailed after charges of trying to topple state by penning transition plan”, Ethiopia Insight, 14 December 2020.]
The representative provided a number of country information reports concerning the civil war in Ethiopia. These reports also show that Tigrayans are under significant pressure from the authorities and the wider community throughout Ethiopia including Addis Ababa:
a) Freedom House, 3 March 2021: [ August 2020 general elections were postponed due to the COVID-19
pandemic, posing an obstacle to the country’s democratic transition. Moreover, Abiy’s
ruling Prosperity Party—a reconfiguration of the ethnoregional coalition that ruled
Ethiopia since 1991—has partly reverted to authoritarian tactics, jailing opposition
leaders and limiting media freedom in the face of growing regional and intercommunal
violence. Most notably, the Ethiopian military has been engaged in a prolonged conflict
with the security forces of the Tigray Region in a bid to arrest senior members of the
Tigrayan People’s Liberation Front (TPLF).”
“In November, the dispute between the federal government and the TPLF escalated
into violence when Abiy ordered the deployment of federal troops into the Tigray
Region after TPLF forces had attacked the Ethiopian military’s Northern Command.
The ensuing violent conflict involved a number of militia groups, as well as special
police forces, and displaced thousands of refugees to Sudan. While allegation of the
massacre of civilians and of rape by federal and regional security forces have trickled
out, the number of casualties is unknown, as the flow of information in and out of
Tigray was severely disrupted by internet and telecommunications blackouts and
interference with journalists trying to cover the unrest.”
“However, Ethiopia’s political party landscape underwent major changes in 2020,
particularly after the postponement of elections in March and the assassination of
Oromo musician Hachalu Hundessa and its aftermath in June. The deadly attacks on
members of ethnic minority groups in parts of Oromia resulted in a crackdown on
political parties and leaders. Among these are prominent opposition politicians Jawar
Mohammed, Bekele Gerba, Eskinder Nega, and Lidetu Ayele, who were all arrested for
alleged involvement in the violent aftermath of Hachalu’s assassination. Public protests
in support of these individuals have been suppressed violently. Most of the most vocal
opponents of the government were in jail at year’s end.”
“The gains made in 2018, including the release of political prisoners and lifting of bans
against prominent government critics in the media and other sectors, had fostered a
more open atmosphere for free expression among ordinary people. However, following
the assassination of Hachalu Hundessa, arbitrary arrests, extrajudicial activities,
widespread surveillance in parts of Oromia, and nontransparent court proceedings
have once again led individuals to be more reluctant to express political views openly.
This has been further escalated by the violent conflict in the Tigray Region, where a
state of emergency proclamation has led to a greater wariness of surveillance.”
“Most notable, however, is the conflict in Tigray, which at year’s end led to the fleeing
of 50,000 people and an unknown number of deaths, estimated likely to be in the
thousands. Security forces, both regional and federal, have been accused of war crimes, including the massacring of civilians and rape.”
b) Amnesty International, 26 February 2021:
[ troops fighting in Ethiopia’s Tigray state systematically killed hundreds of
unarmed civilians in the northern city of Axum on 28-29 November 2020, opening fire
in the streets and conducting house-to-house raids in a massacre that may amount to
a crime against humanity, Amnesty International said today in a new report.”
“Amnesty International spoke to 41 survivors and witnesses – including in-person
interviews with recently arrived refugees in eastern Sudan and phone interviews with
people in Axum – as well as 20 others with knowledge of the events. They consistently
described extrajudicial executions, indiscriminate shelling and widespread looting after
Ethiopian and Eritrean troops led an offensive to take control of the city amid the
conflict with the Tigray People’s Liberation Front (TPLF) in mid-November.”
“Satellite imagery analysis by the organization’s Crisis Evidence Lab corroborates
reports of indiscriminate shelling and mass looting, as well as identifies signs of new
mass burials near two of the city’s churches.”
“The evidence is compelling and points to a chilling conclusion. Ethiopian and Eritrean
troops carried out multiple war crimes in their offensive to take control of Axum. Above
and beyond that, Eritrean troops went on a rampage and systematically killed
hundreds of civilians in cold blood, which appears to constitute crimes against
humanity,” said Deprose Muchena, Amnesty International's Director for East and
Southern Africa.”
c) UN Office for the Coordination of Humanitarian Affairs, Tigray Region
Humanitarian Update Situation Report, 8 March 2021:
[ humanitarian situation in Tigray remains extremely concerning, while reports of
intensified fighting and lack of assistance in rural areas continue to drive displacements
of people across the Region.”
“People in Tigray and humanitarians on the ground continue to report serious violence
against civilians, including extrajudicial killing, rapes and other forms of gender-based
violence, as well as random house searches, widespread looting of private and public
property and destruction of farming equipment, allegedly by various armed actors. The
UN High Commissioner for Human Rights, Michelle Bachelet, in a statement published
on 4 March, informed that her office has been able to corroborate information about
some of the incidents that occurred in November last year, indicating indiscriminate
shelling in Mekelle, Humera and Adigrat town, and reports of grave human rights
violations and abuses including mass killings in Axum, and in Dengelat in central Tigray
by Eritrean armed forces.”
“According to the UN Human Rights body, a preliminary analysis of the information
received indicates that serious violations of international law, possibly amounting to
war crimes and crimes against humanity, may have been committed by multiple actors
in the conflict, including the Ethiopian National Defence Forces, the Tigray People’s Liberation Front, Eritrean armed forces, and Amhara Regional Forces and affiliated
militia.”
d) International Crisis Group Africa briefing number 167, 11 March 2021:
[ officials have taken several apparently discriminatory measures amid the war
fervour and deepening polarisation. Some ministers have spoken out against ethnic
profiling, which is welcome. Still, authorities have detained numerous Tigrayan military
officers, including those manning peacekeeping missions. Addis likewise has recalled
some Tigrayans working at embassies abroad, and federal police managers have told
some Tigrayans not to come to work. Police in Addis Ababa have raided Tigrayans’
residences, detaining hundreds, while federal authorities have asked Ethiopians to
present their local identity cards before they fly abroad, and then blocked some
Tigrayans from leaving. The central bank suspended accounts opened at branches in
Tigray. The Attorney General’s Office froze assets of 34 Tigrayan companies operating
under a conglomerate with TPLF ties and the finance ministry created a new trustees’
board for them. While federal officials assert that they are targeting only TPLF leaders
and sympathisers, many Tigrayans disagree.”
e) Foreign Policy, 8 March 2021: [ November 2020, as war broke out in Ethiopia’s northern Tigray region, the scale
of the suffering was already apparent to anyone on the Ethiopian-Sudanese border.
As the Ethiopian National Defense Force and allied Amhara militias and Eritrean
soldiers swept through the region in a pincer movement, Tigrayans began to flee en
masse, walking for days without water to get to safety in neighboring Sudan.
Hundreds of refugees made an almost biblical sight as they traversed the Hamdayet
River crossing that separates the two countries. Small boats laden with men, women,
and children pushed against the current, ferrying people to safety every few minutes.”
“At one point, dozens of refugees fresh from the desert march and fearful of disclosing
their identities started to shout out names of people they’d seen killed. One of us,
reporting at the border, wrote down six names before the cacophony became
overwhelming.
The refugees’ testimonies all pointed to indiscriminate artillery fire on civilian areas,
massive looting, machete-wielding ethnic militiamen, and summary executions.
Around 50,000 people from bordering Tigrayan towns made it into Sudan before the
Ethiopian army began stationing men in federal army uniforms at intervals along the
border, sealing it off.
Some refugees said they had been threatened with death if they kept going. “They
threatened to cut our heads off if we kept trying to leave Tigray,” one mother of five
said in late November.
Online trolls and officials in Ethiopia’s capital of Addis Ababa then launched a
systematic campaign to discredit refugees’ accounts, claiming that agents of the Tigray
People’s Liberation Front (TPLF) had infiltrated the Sudanese camps to spread
disinformation about atrocities.”
“Abiy’s ascent and pledge to address long-standing grievances paradoxically reignited
tensions between communities about identities, regional borders, and political
representation. While the prior regime had locked communities into ethnically defined
regions ruled by pliant leaders who only answered to federal authorities, Abiy promised
to free Ethiopians from this rigid and repressive system. He permitted the Sidama zone
to secede from the Southern Nations, Nationalities, and Peoples region, and stood by
as communities formed militias and fought to redraw subnational borders.
His vision for a new Ethiopia, which he couldn’t deliver on fast enough, exposed him
to withering critiques and turned adoring crowds into angry mobs. Abiy gradually
revealed himself to be as intolerant of dissent as his predecessors, and he lashed out
at his former allies-turned-rivals. Government forces surrounded the home of Oromo
leader Jawar Mohammed and later arrested him.”
“The country is rapidly unraveling under the stress of Abiy’s reforms and the strain of
his rule. The current trajectory does not just promise more deaths and dislocations—
it also imperils prospects for a free and fair election now scheduled for June 2021.”
f) The New York Times, 12 December 2020, “As war goes on in Ethiopia, ethnic
harassment is on the rise”:
[ ethnic Tigrayans who live in the capital and other parts of Ethiopia say they
have been treated like criminal suspects and subjected to various forms of
discrimination, harassment and abuse by government officials.”
“They report being detained without charges, put under house arrest, and barred from
traveling outside the country. Tigrayans say they have had their businesses shut down,
homes ransacked and money extorted by security officials.”
“Several Tigrayans who live outside Ethiopia said they hadn’t heard for weeks from
family members who were taken away suddenly to police stations and prisons. Some
Tigrayan members of the Ethiopian military forces are being held in detention centers
around the country, their families said.”
“The reports of ethnic profiling of Tigrayans, who represent about 6 percent of
Ethiopia’s population of 110 million, are alarming to the delicate mix of people and
power that makes up Ethiopia.”

I find there is a real chance that at the airport she will be identified as a Tigrayan who had departed Ethiopia in 2015 soon after her release from prison on bail. The 2020 DFAT report[4] discusses security checks at the airport and states in part:
Ethiopians travelling internationally by air are subject to security and identification checks at the airport, and immigration stations at airports have photograph and fingerprinting facilities.
[4] DFAT report Ethiopia, at 5.39 to 5.41
The 2020 DFAT report[5] also discusses DFAT’s assessment that since April 2018 voluntary returnees have been welcomed:
The authorities have typically welcomed voluntary returnees to Ethiopia, including, since April 2018, government critics and opponents. DFAT assesses that returnees, including failed asylum seekers and/or government critics and opponents, face a low risk of monitoring, harassment, detention and official discrimination. While the authorities have significant intelligence-gathering capabilities and are likely to be aware of major anti-government protest activity undertaken in other countries and online, DFAT assesses that people who openly criticise the ruling party while they are outside of Ethiopia face a low risk of official harm on their return to Ethiopia.
However, it is reasonable to consider that the attitude of the authorities to returning Tigrayans with an anti-government profile and history of arrest and imprisonment for political activism has significantly changed in recent months. This is supported by the International Crisis Group February 2021 briefing that stated “There is also renewed state intolerance of dissent.”, and DFAT assesses “There is a growing sense among Tigrayans that their community is under threat. Anti-Tigrayan sentiment has become more overt since 2018, and hate speech against ordinary Tigrayans has increased in this time.” The New York Times article of 12 December 2020, “As war goes on in Ethiopia, ethnic harassment is on the rise”, states in part: “…many ethnic Tigrayans who live in the capital and other parts of Ethiopia say they have been treated like criminal suspects and subjected to various forms of
[5] DFAT report Ethiopia, at 5.39 to 5.41
discrimination, harassment and abuse by government officials.”…“They report being detained without charges, put under house arrest, and barred from traveling outside the country. Tigrayans say they have had their businesses shut down, homes ransacked and money extorted by security officials.”…“Several Tigrayans who live outside Ethiopia said they hadn’t heard for weeks from family members who were taken away suddenly to police stations and prisons”.
I find that the applicant’s Tigrayan ethnicity, her record of political activism against the government in Ethiopia, together with her detention and release on bail followed by her prompt departure from Ethiopia and her ostensible breach of bail conditions, will attract the adverse attention of security agents, at the airport or soon after her arrival. If she is returned involuntarily, the authorities would likely also become aware she was a failed asylum seeker and I cannot discount the possibility that in light of DFAT’s advice that 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”- the authorities would also investigate her online activities and so become aware of her anti-government profile in Australia. At hearing she stated that she was no longer active with the Ginbot-7 group because of growing ethnic tensions in the activists in Australia, but she had lately taken up the cause of Tigrayans in Ethiopia because of the civil war. She stated she often posted, liked and shared political information, including anti-government information and opinions, on [Social media 1] and [Social media 2]. At hearing the applicant showed her phone and the interpreter assisted the applicant in a brief translation of the stories in the posts. The submission of 19 March 2021 then produced a selection those posts made between October 2020 and March 2021, together with a description of the content.
I find because of her particular ethnic profile and past and ongoing political profile, there is a real chance that the applicant would be detained, interrogated and harmed in prison. As well, she is an elderly woman. DFAT broadly assesses[6] that women in Ethiopia face a high risk of domestic violence and sexual harassment, and states in part: “Typically, gender-based violence is intimate-partner based and occurs in domestic settings.” The applicant claims, and I accept that she has faced sexual violence in detention in the past and I find she remains particularly vulnerable, either in prison or in the community, in light of her gender, age and medical and mental health problems.
[6] DFAT report Ethiopia, at 3.62 to 3.67
Having considered her personal circumstances and in light of country information I find there is a real chance she will face serious harm from Ethiopian authorities and their agents when she enters Ethiopia at Addis Ababa’s Bole International Airport, or after she leaves the airport and enters the community. I find this is because of her past and ongoing anti-government political profile together with her Tigrayan ethnicity, her breach of bail conditions, and status as a single/widowed woman without a male protector.
For the purposes of s.5J(1), I find the applicant fears being persecuted for reasons of race, membership of a particular social group and political opinion. I find there is a real chance that if she returns to Ethiopia she would be persecuted for one or more of the reasons. I find the real chance of persecution relates to all areas of Ethiopia including Addis Ababa, and there are no effective protection measures available to her as the persecution would be perpetrated by the Ethiopian authorities, as well as other anti-Tigrayan non-state actors (s.5J(2)). The real chance of harm to the applicant amounts to serious harm in that she faces a threat to her life or liberty, significant physical harassment and/or ill-treatment, and a threat to her capacity to subsist, denial of basic services and/or denial of capacity to earn a livelihood (s.5J(5)). The s.5(1)(a) reasons I have outlined are the essential and significant reasons for the persecution that would involve systematic and discriminatory conduct.
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.
C. Packer
Member

ATTACHMENT A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in attachment B.
Complementary protection
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in attachment B.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. 33

[2021] AATA 755

21 March 2021

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