1911531 (Refugee)
[2022] AATA 5114
•6 December 2022
1911531 (Refugee) [2022] AATA 5114 (6 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1911531
HOME AFFAIRS REFERENCE(S): CLF2018/8040
COUNTRY OF REFERENCE: Ethiopia
MEMBER:David James
DATE:6 December 2022
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 06 December 2022 at 4:14pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – imputed anti-government profile – 2016 demonstrations by Oromo farmers – land acquisition for the expansion of Addis Ababa – interest in and/or support of Ethiopian Satellite Television and Radio (ESAT) – particular social group – Oromo ethnicity but not speaking the Oromo language – well-educated with perceived wealth – social and psychological impact on the children – exceptional economic and scientific benefit – Ministerial intervention requested – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155Any 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 18 April 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Ethiopia, applied for the visas on 11 January 2018. The delegate refused to grant the visas on the basis that the primary applicant was not found to be a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the primary applicant: s 36(2)(b) and s 36(2)(c) of the Act. As the delegate refused to grant a protection visa to the primary applicant, the second, third and fourth applicants did not satisfy s 36(2)(b) or s 36(2)(c) of the Act as they are not members of the same family unit as a non-citizen who holds a protection visa of the same class applied for in the application and who engages Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal), on 8 May 2019. The applicants provided a copy of the delegate’s decision with the application for review.
As noted above, the applicants provided a copy of the delegate’s decision with the application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicants protection visas having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The primary applicant appeared before the Tribunal on 29 November 2022 to give evidence and present arguments.
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–5LA, 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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review are whether the primary applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the primary applicant was returned to Ethiopia he would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Ethiopia, there is a real risk that the primary applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The primary applicant when applying for the visas explained that he was born in [Town 1], Oromia, Ethiopia and belongs to the Oromo ethnic group.
He stated that he attended the [University 1] from 2000 to 2003 where he obtained a Bachelor [degree]. He then worked as a [Occupation 1] at [a workplace] from December 2003 until December 2013. Whilst so employed he completed a Master [degree] at [University 2] during 2008 to 2011. From 2011 to 2013 he was involved in various regional and international [conferences] related to his research work and in this capacity, he travelled to a number of different countries.
Prior to 2013 he was the co-ordinator for [a] project funded by the Australian government through [Organisation 1] in Ethiopia. Whilst involved in this project he attended a series of training courses in Australia and then applied for an Australian Aid Scholarship. In February 2013 he travelled to Australia to undertake research training at [University 3].
On 5 January 2014 he commenced working as a PhD [research student] with [University 3].
The primary applicant made the following claims (in summary) in the visa application and his declarations of 6 January 2019 and 7 January 2019 for protection:
·He claims that in 2015 when he was completing field work there was a lot of unrest due to the Ethiopian government taking farmland from Oromo farmers to enable the expansion of Addis Ababa. He was involved in discussions with these farmers about the government’s land policy and many of these same people later participated in the December 2015 demonstrations against the government in Shashamane, Oromo State.
·At the time of widespread demonstrations against the government in 2016, he was in Australia, but he protested through [social media].
·[In] August 2016 he participated in the Ethiopian Satellite Television and Radio (ESAT) briefing. The ESAT was at that time considered a terrorist media outlet by the Ethiopian government.
·He has been informed by his father that he is under investigation by the Oromo local government as his father told him that the farmers he had worked with had been interrogated by the local security forces about his engagement with them (Oromo farmers).
·He fears that the current Oromo Prime Minister who may not prosecute him will not be in his position for long and that he will be imputed as an Oromo anti-government activist and be targeted by the government.
·He also fears he will be perceived as a person with a lot of money as he will be returning from overseas if he returns to Ethiopia and so he and his family will be targeted for robbery and extortion.
In a submission to the Department of 8 January 2019 which attached relevant country information (in accordance with the information outlined at paragraphs 26 to 33: see below) and printed copies of [social media] entries in the name of the applicant, the applicants’ then representatives, Refugee and Immigration Legal Service (RAILS), outlined the primary applicant’s fears under the heading of ‘Summary of Protection Claims’ at [14] to [17] as being:
The applicant’s fears of persecution stem from his cumulative profile as someone who:
a. is a well-educated, politically active opponent of the ethnic divisions in Ethiopia (seen as a threat by the Tigray People’s Liberation Front (TPLF) dominated federal government, as well as local authorities);
b. is of Oromo ethnicity; and
c. as a returnee from the West, is perceived to be wealthy, and is a target for theft and kidnapping.
The applicant fears serious and significant harm, not only because of his Oromo ethnicity, but also because his employment and education raise his profile within the community. Specifically, the applicant fears the local authorities who see his close involvement and political discussions with local farmers as detrimental to public order. Further, his fieldwork and need to travel between regions and over dangerous borders for work (and source of livelihood), place him at an increased risk of suffering ethnically motivated violence.
The applicant and his family’s safety within Oromo, is threatened by the fact that he and his family would be seen as outsiders within Oromo by virtue of their limited language skills and upbringing outside of Oromia. The applicant fears that their status as ‘outsiders’, and profile as returnees from the West, with perceived wealth and status, places them at a heightened risk of targeted violence for kidnappings and robbery.
With the recent change in leadership (with an Oromo Prime Minister being elected in 2018), the applicant no longer fears that he is a current target for a false prosecution by the Federal government in relation to his support of the 2016 uprisings. However, the rising ethnic conflict throughout Ethiopia, centring on the Oromo region and the hostility towards the new Prime Minister means that the applicant doubts the stability of the present government, as well as the Prime Minister’s ability to control a government, which has remained dominated by the TPL F for 27 years.
Later in this submission RAILS at [61] state that:
It is submitted that the applicant has a well-founded fear of persecution arising on the basis of multiple reasons contained in section 5J Migration Act 1958, specifically:
a. his political opinion;
b. his membership of particular social groups (set out below);
c. his race.
At [68]:
We submit that the applicant fears serious and or significant harm on the basis of his membership of a particular social group. This group may be identified as any of the following:
d. people who engage in political protests and demonstrations;
e. people who engage in anti-government political protests and demonstrations;
f. people who have a demonstrated capacity to encourage and facilitate participation in anti-government political protests and demonstration;
g. Oromo people who engage in political protests and demonstrations;
h. Oromo people who engage in anti-government political protests and demonstrations;
i. Oromo people who have a demonstrated capacity to encourage and facilitate participation in anti-government political protests and demonstration;
j. well educated people with perceived wealth.
At [96] to [98] in this submission’s conclusion the primary applicant’s then representatives, RAILS, submit:
In conclusion, it is submitted that the applicant has a well-founded fear of persecution on the Refugee Convention grounds of his political opinion, membership of a particular social group and race. The applicant is unable or, owing to such fears, unwilling to avail himself of the protection of the state.
The applicant’s fears of persecution are well-founded and there is a real chance that he will suffer serious harm by reason of the government’s inability to provide protection. Furthermore, there is no area within Ethiopia to which the applicant could relocate.
It is therefore submitted that the applicant meets the criteria for the grant of a Protection Visa under the Migration Act 1958 (Cth) (s36(2) and Migration Regulations 1994 (Cth) (Schedule 2, cl. 866.21(a)).
Department interview
The primary applicant was interviewed by the Department on 10 January 2019.
Delegate’s decision
The delegate’s decision of 18 April 2019 to refuse the protection visas was made on the information before the delegate. The delegate found that the primary applicant’s main argument had been that the current government and reforms will not last. The delegate did not accept that the primary applicant had an anti-government profile and that his life will be in danger. The delegate recognised that there had been mass arrests and mistreatment of ethnic Oromos in recent years and that those Oromos who expressed dissent were often arrested and/or otherwise mistreated. However, the delegate was not satisfied that the applicant had a profile that placed him at risk. The delegate when considering the primary applicant’s claims individually and cumulatively was not satisfied that there was a real chance of the primary applicant facing serious harm in Ethiopia because of his actual and/or imputed political opinion and Oromo ethnicity from the Ethiopian authorities. The delegate was not satisfied that the applicants were refugees as defined by s 5H(1) of the Act. The delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Further, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ethiopia there was a real risk that the primary applicant would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the delegate found that the applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.
Invitation to attend hearing
On 11 November 2022 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 29 November 2022. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Pre-hearing submission/material of 17 November 2022
The primary applicant on 17 November 2022 forwarded to the Tribunal their Hearing Response form indicating that all of the applicants would be participating in the hearing and provided the following ‘supporting documents’:
·a series of photographs depicting the applicant with farmers on farmland and the burnt remains of a building;
·2018 Human Rights Watch ‘World Report on Ethiopia’;
·a Washington Post article dated 8 July 2020: ‘Ethiopia’s week of unrest sees 239 dead, 3,500 arrested’;
·copies of E-ticket receipts for the applicants’ travel to Ethiopia [in] January 2018;
·a Human Rights Watch Report of 2016: ‘Such a Brutal Crackdown – Killings and Arrests in response to Ethiopia’s Oromo Protests’;
·Article dated 1 October 2022, by Eurasia Review: ‘The “New Auschwitz”: Wollega, Oromia Region, Ethiopia’;
·an article of 2 October 2018 by The Conversation: ‘How ethnic violence is destabilising Ethiopia’s reform gains’;
·The Commonwealth of Australia House of Representatives Federation Chamber statement on ‘Ethiopia: Oromo People’ speech by Adam Bandt, MP on 28 March 2018;
·a series of Internet articles from 2020 to 2022 as to violence in Ethiopia; and
·2003: ‘Ethnic Federalism: Its Promise and Pitfalls for Africa’ Alemante G Selassie, William & Mary Law School.
Also included with this material was the primary applicant’s written response to the delegate’s refusal to grant the visas in which the primary applicant responded to the delegate’s findings and repeated his claims for protection.
The Tribunal has carefully considered this material and has considered same in reaching its decision.
Country information
The Tribunal has taken into account the DFAT Country Information Report Ethiopia, 12 August 2020, as relevant, including the information under the heading of ‘Political System’ at 2.31 to 2.41 in which it states at 2.37 and 2.38 that:
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.
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 ethnic-based.
Under the heading of ‘Security Situation’ at 2.50 to 2.59, at 2.50 to 2.52 it is reported that:
The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018. Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date.
Inter-ethnic clashes along the border between Oromia and Somali states have displaced more than 1 million people since 2017. Clashes have subsided, but continue to flare up sporadically. In August 2018, the federal government deployed forces to quell riots in Jijiga, the capital of Somali State, and surrounding areas. The riots were triggered by the arrest of the state president, and involved the targeting of non-Somalis and Christians at least 30 people died and 140,000 were displaced. Youths loyal to the former state president, belonging to a group called the Heego, were behind the riots. The security situation in Somali State has improved significantly since. In February 2019, federal parliament adopted a proclamation establishing a national reconciliation commission to promote dialogue and encourage resolution of inter-ethnic disputes.
The return from exile of previously-banned groups and individuals has catalysed unrest in Oromia State. In September 2018, the return of the OLF provoked intra-Oromo clashes and the targeting of homes and businesses belonging to non-Oromos. At least 70 people were killed and 15,000 displaced. The OLF has yet to disarm completely, and some OLF factions engage in armed clashes with government forces, particularly in western areas of Oromia State. Armed OLF factions have reportedly engaged in criminal activities, including extorting businesses and conducting bank robberies in western Oromia. In October 2019, at least 86 people died during riots triggered by claims – made via Facebook – that the federal government was endangering the personal security of Jawar Mohammed, a prominent Oromo activist and founder of the Oromo Media Network (OMN). Jawar, an advocate for greater rights for the Oromo people who was previously allied to Prime Minister Abiy (but who is now a prominent critic), helped organise from his US base the 2014-18 protests that precipitated the resignation of the previous government. Jawar returned to Ethiopia in August 2018.
And under the heading of ‘Oromos’ at 3.5 to 3.8 where at 3.8 it states that:
While there was widespread violence against, and detention of, protesters across Oromia State between 2014 and 2018, DFAT assesses this was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. The situation for government critics, including ethnic Oromos, has improved significantly since April 2018. DFAT assesses that individuals who are part of, or have links to, armed OLF factions engaged in criminal activities and clashes with government forces are likely to be of interest to the authorities, and face a moderate risk of arrest and detention. The risk of arrest and detention faced by OLF members who participate peacefully in the political process is low. DFAT assesses, overall, Oromos face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. DFAT assesses that, excluding in Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority.
‘Religion’ at 3.25 to 3.32, reports at 3.30 and 3.31 that:
While there has been a recent uptick, attacks on places of worship are rare overall. The two largest religious groups, Orthodox Christians and Muslims, generally respect each other’s right to practise their faith, despite some low-level mutual mistrust. Local sources told DFAT that inter-faith marriage in Addis Ababa is common. DFAT has observed people of different faiths openly attending their respective religious services without facing discrimination or harassment. In many parts of the country, particularly Oromia State and major cities such as Addis Ababa where there are large numbers of Orthodox Christians and Muslims, mosques and Orthodox Churches are located within close proximity of one another, with no evidence of hostility or tension. There are an estimated 40,000 mosques in the country. Major Islamic festivals are observed as public holidays and DFAT observed men and women in Islamic dress walking the streets freely in Addis Ababa.
DFAT assesses there is a low risk of official and societal discrimination or violence on the basis of religion, including in the case of religions with small followings. DFAT assesses that people can practise their religious beliefs freely and openly.
‘Political Opinion (Actual or Imputed)’ at 3.33 to 3.41, reports at 3.34 and 3.41 that:
In practice, political freedoms were significantly curtailed before April 2018. Members of opposition groups, human rights activists, and independent commentators such as journalists and bloggers who opposed the government’s policies were regularly harassed and detained. The ATP was used extensively to restrict political freedoms and arrest and prosecute government critics, particularly individuals with suspected affiliations to proscribed groups Ginbot 7, the OLF and the ONLF. Against this background, many opposition leaders and dissidents left Ethiopia. Individuals who were not members of the EPRDF reportedly faced discrimination in public sector employment, including impediments to career progression. Anti-government protests were often dispersed through force, and participants arrested.
DFAT assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.
‘State Protection’ at 5.1 to 5.3, notes at 5.3 that:
DFAT assesses that, overall, federal and regional security forces are largely effective at maintaining law and order and in providing protection from threats by non-state actors, particularly in major urban centres. However, DFAT assesses that the emergence of armed, invariably ethnic-based non-state actors has increasingly challenged the state’s monopoly on the use of force and its concomitant ability to provide protection in remote areas and along borders separating Ethiopia’s regional states.
‘Treatment of Returnees’ at 5.33 to 5.38, reports at 5.38 that:
DFAT assesses that, under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds.
Notwithstanding the DFAT country information above the Tribunal is mindful of recent changes in Ethiopia and notes that Human Rights Watch has reported that the human rights position in Ethiopia has recently deteriorated amid growing unrest and political tensions.[1]
[1] Human Rights Watch, World Report 2022 – ‘Ethiopia Events of 2021’, >
In their ‘Ethiopia Events of 2021’ report Human Rights Watch state that:
The human rights and humanitarian situation in Ethiopia deteriorated further in 2021, with civilians impacted by a devastating conflict in Tigray, security force abuses, attacks by armed groups, and deadly ethnic violence in other regions. The government’s actions in Tigray contributed to growing international pressure to address accountability for rights abuses…
…Extrajudicial killings, mass arrests, arbitrary detentions, and violence against civilians occurred in other regions facing unrest and insecurity.
In Oromia, reports of arrests, detention, and summary executions of Oromo civilians accused of supporting the armed rebel group, the Oromo Liberation Army (OLA), continued. In May, security forces in Dembi Dollo, western Oromia, violently apprehended a 17-year-old boy and then summarily executing him in public…
…Ethiopian authorities passed a nationwide state of emergency November 4, granting the government far-reaching powers that heighten the risks of arbitrary arrest and detention against at-risk communities, but could have a chilling effect on humanitarian activities, induce self-censorship by the media, activist groups, and human rights organisations, and risk emboldening abusive elements within the security forces.[2]
[2] Human Rights Watch, World Report 2022: ‘Ethiopia Events of 2021’, >
The Conversation in their 2 October 2018 article, ‘How ethnic violence is destabilising Ethiopia’s reform gains’ which was submitted by the primary applicant to the Tribunal on 17 November 2022, provides under the heading ‘Causes of the violence’ that:
…Soon after the coalition came together, it introduced an ethnic federal system of governance to try and address historic ethnic grievances by giving Ethiopia’s different regions the chance to administer themselves. This federal system allowed regions to organise along tribal lines. It also led to the rise of ethno-nationalist movements, which eventually weakened Ethiopia’s national unity.
Ethnic intolerance grew and gained momentum and ethnic violence became a permanent fixture of Ethiopian politics…
…So, the issues of federal governance, negative ethnicity, and debates over land ownership have been a longstanding thorn in the Ethiopian leadership’s flesh. What remains to be seen is how Abiy’s administration will deal with it. Can the new premier resolve these issues and keep his reforms agenda on course?[3]
[3] >
The United Nations in their UN News, ‘Global perspective Human stories’ reported on 2 November 2022 that:
A peace deal between the Ethiopian Government and the Tigray People’s Liberation Front (TPLF) signed on Wednesday in South Africa, represents “a critical first step” towards ending the brutal two year war, said the UN chief…
…“The Secretary General urges all Ethiopians and the international community to support the bold step taken today by the Federal Government of Ethiopia and the Tigrayan leadership”, the statement said…
…The Secretary-General pledged his support to the parties in the implementation of the agreement and urged both sides “to continue with negotiations on the outstanding issues in a spirit of reconciliation in order to reach a lasting political settlement, silence the guns and put the country back on the path to peace and stability.”
He appealed to all stakeholders to seize the opportunity provided by the ceasefire, “to scale up humanitarian assistance to all civilians in need and to restore the desperately needed public services.”[4]
[4] >
The New York Times in a report by Abdi Latif Dahir on 3 November 2022, titled ‘Details in Ethiopia’s Peace Deal Reveal Clear Winners and Losers’ noted that:
NAIROBI, Kenya — Ethiopia began taking shaky steps toward peace on Thursday, a day after the government and forces in the northern Tigray region agreed to a permanent cessation of hostilities, a surprising turn of events that could end a two-year civil war — one of the world’s bloodiest contemporary conflicts.
The deal appears to be a decisive victory for Ethiopia’s government and its prime minister, Abiy Ahmed, the Nobel Peace Prize winner who prosecuted the war — and could be hard for leaders of the Tigray region to sell to their people, experts on the region said on Thursday…
…The war, which broke out on Nov. 3, 2020, was seen as an effort by Mr. Abiy to exert control over leaders of the restive Tigray region, who had bucked his authority by holding a local election. Leaders of the Tigrayan ethnic group, while a minority in Ethiopia, for nearly three decades were the principle power bloc in the Ethiopian government — but Mr. Abiy pushed them out soon after he came to power in 2018.[5]
[5] >
The Conversation on 20 July 2022 in their article, ‘Ethiopia’s other conflict: what’s driving the violence in Oromia?’ reported that:
In Oromia’s latest wave of violence in June 2022, Al Jazeera, the New York Times and Reuters reported that hundreds of people had been killed by the Oromo Liberation Army in Wallaga, Oromia.
These news reports labelled all the victims Amharas, members of Ethiopia’s second-largest ethno-national group. The Oromo are the largest…
…Prime Minister Ahmed has taken the side of Amhara expansionists.
Ahmed came to power in 2018 mainly because of the Oromo struggle but later turned against the movement. His vision is of a centralised state rather than self-determination for Ethiopia’s different groups.
The state’s ideology of “Ethiopianism” has been used to justify the subordination of the Oromo and other colonised peoples. It has empowered the class that dominates the bureaucracy, army, culture, Orthodox Christianity and Ethiopian colonial-political economy.[6]
[6] >
In the UK Visas and Immigration’s 22 March 2022 Guidance Report, ‘Country policy and information note: Oromos, the Oromo Liberation Front and the Oromo Liberation Army, Ethiopia, March 2022 (accessible)’ it provided under the heading of ‘OLF and OLA’ that:
In general, a person with a significant history of membership or support for the OLF, or perceived by the authorities to have a significant history of membership or support, is likely to be at risk of persecution or serious harm. Whether an individual’s association with the OLF is ‘significant’ is fact sensitive and each case must be considered on its individual merits, with the onus on the claimant to demonstrate that they face a risk of persecution.
Under the heading ‘Oromo ethnic group’:
Approximately 38 million people of Oromo ethnicity live in Ethiopia, around a third of the overall population (see Demographics).
While there have been a number of incidents involving the state and the Oromo community in 2020 and 2021, resulting in violence and arrests, these were largely linked to either an association or suspected association with the OLF or OLA, participation in protests against the detention of Oromo opposition party members, or as a consequence of the aftermath of Hachalu’s death (see Violence in Oromia region).
Not all protests have an anti-government agenda. Rallies have also taken place in Addis Ababa and other towns in Oromia in support of Abiy and in opposition to the TPLF-OLA alliance (see Protests and riots in Oromia during 2020 and 2021: ACLED and Protests and unrest in Oromia during 2020 and 2021: other sources).
As such, in general the treatment of Oromos (by virtue of ethnicity alone) is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm. The onus is on the person to demonstrate otherwise, based on their past experiences, including any arrests, and their individual circumstances, for example, suspected links to the OLA or OLF.[7]
[7] hearing – 29 November 2022
The Tribunal hearing was conducted at the Brisbane Registry in the English language. The primary applicant appeared in person and was the only witness to give oral evidence before the Tribunal.
The Tribunal explained to the primary applicant that the hearing would consider the applicants’ application for a protection visa afresh. The primary applicant confirmed that he was no longer represented in this review but that his former representatives had provided an explanation of the statutory framework and concepts as to the refugee and complementary protection criteria relevant to him. However, when questioned as to his understanding of the criteria he requested further explanation from the Tribunal. The Tribunal then provided an explanation of the relevant statutory framework as to the refugee and complementary protection criteria to the primary applicant who after same indicated he understood same.
The primary applicant adopted his Statutory declaration of 7 January 2019 as his evidence in relation to his background, employment history and beliefs as to the current situation in Ethiopia. In that regard his evidence was:
·his mother, stepmother and father together with his four siblings, two sisters and two brothers together with two step-siblings all reside in Ethiopia;
·he is married to the second applicant and was so married [in] September 2008, and they have two children, the third and fourth applicants;
·he referred to his declaration of 8 January 2019 as to his background which included that he first came to Australia to complete one month of training in February 2013 which related to his work and his university studies in Ethiopia and specifically [subject] at [University 3]. The following year or so he travelled between Australia and Ethiopia a couple of times to complete his study project. He explained that during this period he had dealings with farmers in remote areas in 2015. The last time he came back to Australia was with his whole family [in] December 2015; and
·that he belongs to the Ethiopian Oromo ethnic group but that he does not speak the Oromo language.
As to his claims for protection which had been outlined in the visa application, declarations under his hand and the submission by RAILS, see paragraphs 14 to 17 above, the primary applicant’s evidence at the hearing was that his claims were limited to a fear of persecution arising from his:
·political opinion, actual and/or imputed anti-government profile arising from his interaction with farmers in Oromo in 2015;
·membership of a particular social group being of Oromo ethnicity but not speaking Oromo; and
·membership of a particular social group – well-educated with perceived wealth.
The Tribunal in response took the primary applicant through his earlier claims as outlined in his application of 11 January 2018, his declarations of 6 January 2019 and 7 January 2019, the RAILS submission of 8 January 2019, and his response to the delegate’s decision which accompanied country information provided to the Tribunal on 17 November 2022.
In reply to the Tribunal the primary applicant reaffirmed his claims as those he had outlined at the start of the hearing: see paragraph 37 above. Throughout the hearing the primary applicant continued to confirm and adopt those claims as the extent of his claims for protection.
The applicant then provided (in summary) the following evidence:
·He explained that prior to the present government led by Mr Abiy who is Ethiopia’s first Prime Minister from the Oromo ethnic group there had been a lot of discrimination against the Oromo people by the central Tigrayan (ethnic group) led government. In this regard he referred to his father’s experiences of being accused of allowing the theft of grain by a Tigrayan truck driver and then losing his job in a grain supply business. He also discussed his father having been wrongly accused of killing a man in a local neighbourhood dispute and having to leave the applicant and his family for several years until being able to later return to the family after police ceased accusing him of this killing.
·The applicant explained that his fears related to his family’s identity and that of his own of being Oromo. He further informed the Tribunal that he had grown up in a non-Oromo-speaking area as his (step)mother’s ethnic identity was Amhara. He explained that his fears were that he and his family will be discriminated against by the local government in Oromo as they will not be seen as true Oromo people because they do not speak the Oromo language.
·He further explained that in Oromo if you are not politically aligned with the Oromo state government you will be disadvantaged in relation to job opportunities and social services. He said that now that the federal government was led by an Oromo Prime Minister and included a coalition which had Oromo members the fears he had as to persecution related to the Oromo state government and not the national government of Ethiopia who had continued to maintain political control over the country for the past several years.
·The applicant said that prior to his last arrival in Australia in December 2015 he had been working on a [project] funded by the Australian government. He had regularly visited farmers in the Oromo farming districts and had been involved in discussions with those farmers about the federal government’s expansion plans of Addis Ababa and the government acquisition of farming lands.
·He explained to the Tribunal that after the 2016 demonstrations in Oromo his father had told him that the state authorities (Oromo) had been questioning his father and others about the applicant’s interactions with the Oromo farmers suggesting that the applicant had incited their demonstrations and violence.
·In response to questions from the Tribunal the applicant agreed that after his father had first been spoken to by the authorities, and had provided an explanation as to the applicant’s interaction with the farmers, that being that he was involved in [a] project funded by the Australian government and implemented by the Ethiopian authorities, his father had since not been further questioned by any Ethiopian authorities as to the applicant’s dealings with the farmers.
·The applicant explained that he did not fear persecution from the Ethiopian federal government but that as an Oromo who does not speak Oromo, he will be disadvantaged in Oromo state. As his qualifications and work experience are in [Industry 1] if he was to return to Ethiopia, he would only be able to find work in the Oromo [districts] outside of Addis Ababa. He explained he could not relocate within Ethiopia as firstly there are not the same job opportunities in [Industry 1] outside of Oromo, secondly if he was to relocate to another area, he would be subject to ethnic discrimination by the other ethnic groups such as the Amhara or Tigrayans.
·The Tribunal noting that the applicant had been able to complete his university studies and obtain work including overseas scholarships in his chosen field of [employment] in Oromo state, queried him as to how his Oromo ethnicity and his inability to speak that language had disadvantaged him or prohibited and/or limited his employment and any other opportunities for him. In reply the applicant said that when he had applied for the Australian scholarship grant, as he was not a party member or politically aligned to the Oromo political party, he had been unsuccessful in his application. He explained that it was only because he knew the Director-General in Addis Ababa who he had previously worked with on other projects and was of Amhara ethnicity that he was able to obtain the scholarship after he had sought out and raised the matter with the Director-General. In reply to further questioning, he agreed that the Director-General had not indicated that his unsuccessful application for the scholarship had been refused due to his Oromo ethnicity and/or his inability to speak that language.
·The applicant in reply to the Tribunal indicated he was the holder of an Oromo identity card identifying him as being Oromo.
·The Tribunal referred the applicant to his claim that in 2015 whilst completing fieldwork he had been involved in discussions with farmers who were later involved in anti-government demonstrations and that his father had warned him that he should not return to Ethiopia as the authorities were asking about his involvement with the farmers and whether he had incited the farmers. The applicant explained that he had three meetings with the farmers in that period prior to the demonstrations. He explained the meetings were to understand their practices and to discuss and suggest new practices to them that had been identified through the computer modelling that the Australian advisor and he had developed through the Australian [scholarship]. He further explained that given the local authorities had spoken to his father about his involvement with these farmers who had later demonstrated against the government and as he had also indicated his support for their struggles through some [social media] ‘likes’ and ‘posts’ he was fearful that he had obtained an anti-government profile with the Oromo state authorities.
·As to his earlier claim that he had participated in the ESAT briefing in August 2016, he explained that he had attended the briefing remotely but was not a speaker and he had not been in person at the briefing. Further he acknowledged that ESAT was no longer considered a terrorist media outlet by the Ethiopian government. Further he acknowledged that none of his family had ever been questioned about his one-time interest in and/or support for ESAT. In reply he did indicate that after he had not returned from his studies in Australia his father had been on one occasion questioned by the local authorities as to his present whereabouts. The Tribunal questioned the applicant as to whether the basis of those questions to his father had been about his failure to return from a government-sanctioned and funded scholarship rather than any political issues. The applicant’s reply was that he suspected they may have been asking about his involvement with the farmers.
·He explained as to his claims that the current government may not continue with their reforms that there were still problems with the current government notwithstanding it included an Oromo coalition and Prime Minister but that his concerns were that the government had polarised the country and that the local governments through their political structure would persecute him. He stated that he had previously feared the federal government which was under Tigrayan control but that his present fears and those of the future related to his belief that he will be discriminated against by the Oromo local government as he is of Oromo ethnicity but does not speak the language. He explained he does not have an identity because he does not speak his own language and as his livelihood is in the farmlands of Oromo. He stated that he will be disadvantaged as although the contracts in his area of employment are funded by the federal government they are often controlled and managed by the local or remote government who will disadvantage him by not providing employment to him as although he identified as Oromo, he does not speak Oromo but rather Amhara.
·The applicant agreed that he was not a member of the Oromo Liberation Front (OLF) or the Oromo Liberation Army (OLA) and has no association with those groups. However, he stated he feared those groups who may view him as not a true Oromo member, given he does not speak the language and could target him and his family for kidnapping given he may be viewed as being a well-educated and wealthy man.
·He agreed that since he had failed to return to Ethiopia his parents and siblings had not been questioned about him but for his father having been asked as to what his involvement with the Oromo farmers had been. And since his father had explained that the applicant’s involvement with those farmers was through [a] project and scholarship his father together with other members of his family had not been further questioned about the applicant by the local authorities but for his whereabouts after not returning from his scholarship.
·The applicant in reply to the Tribunal’s discussion of country information indicated that in relation to the information on the ‘Political system’, he stated that it depends where you are and when you are there, and yes, it is relatively safe in Addis Ababa, but he could not effectively establish himself in Addis Ababa which is a metropolitan centre as to work effectively he has to be in the regions. He explained that generally in the past he has worked in the area of around [number] km away from Addis Ababa where there have been tensions and ethnic and security issues. Although he conceded things were better than before 2015 and 2016 in that area.
·As to the ‘Security situation’, he commented that there is an imminent danger to himself and his family as the OLF target people for kidnapping. He further explained that there is discrimination in Oromo against non-Oromo-speaking people, and they are often excluded from the economy and not given the opportunities of employment that are open to everyone else (Oromo people who speak Oromo). He provided an example insofar as his brother-in-law who had completed his studies in finance and management in Adama in Oromo State but has not yet been able to obtain a job. He explained it was his belief that this was because he (brother-in-law) did not speak Oromo.
·In relation to the country information relating to ‘Oromos’, he stated that there was a low risk to his ethnic group and himself from the federal government as the current government has far more tolerance for opposing beliefs but the system of government which is administered by the states systematically discriminates against people like him who do not speak the language.
·As to the issue of ‘Returnees’, he agreed that he had renewed his passport in 2020 without any issue at the Ethiopian Embassy in Australia. He said he did not have any issue with the main central government who he had previously worked for but again, he highlighted that such work that he had completed in the past and would likely return to in Ethiopia, was managed by the regional governments who he believes will not give him employment due to his language not being Oromo.
·The applicant when asked to identify any information that supported his claims of persecution arising from his ethnicity in terms of being persecuted and/or otherwise disadvantaged in Oromo state because he was Oromo but did not speak the Oromo language, directed the Tribunal to his response to the delegate’s decision which had been provided to the Tribunal on 17 November 2022. In this regard the Tribunal was directed to this passage:
Because employment opportunities, political power, and rights of political participation all depend on belonging to the “right” ethnic group, those who do not belong have no incentive to move into areas controlled by such a group. And those who are already in the “wrong” ethnic region face the prospect of being expelled from their lands, fired from their jobs, and forced to return to their “homelands”.
The primary applicant relied upon the William & Mary Law School Scholarship Repository 2003 paper: ‘Ethnic Federalism: Its Promise and Pitfalls for Africa’[8] which he provided to the Tribunal on 17 November 2022 as the source of this statement and also drew the Tribunal’s attention to his own comments in his response to the delegate’s decision where he stated:
The ID is crucial in accessing any government services, banks and even for bookings in hotels. Hence having an expired ID card caused me a lot of hassles many times. When they hear I have got a scholarship in Australia they stole my computer and documents from my office (where I worked for 10 years) assuming it will affect my application process.it was a big shock for me at the time but managed to survive and go through the scholarship process.
The Tribunal then confirmed with the primary applicant that he was the holder of an ID card which did categorise him as Oromo and that notwithstanding the removal of his computer he could not exclude same was done because he was leaving that employment for his scholarship studies in Australia. Further the Tribunal confirmed again with the primary applicant that he was successful in his application for the scholarship and did take up such scholarship for study in Australia which he has since successfully completed.
·In conclusion the applicant explained that his fears of persecution were that if he was to return to Ethiopia in the foreseeable future, he would, given his education and employment history only be able to seek employment in [Industry 1] and in particular in the Oromo [districts] outside of Addis Ababa. It was his belief that he will suffer persecution as he is a member of a group in his society of being of Oromo ethnicity but not speaking the Oromo language. In this regard he explained that his stepmother indicated that she wished to relocate to an Amhara region of the country where she spoke the local language as she had often complained of being mistreated in Oromo as when she attended shops and the like she was often not given service as she did not speak the Oromo language.
[8] ‘Ethnic Federalism: Its Promise and Pitfalls for Africa’, Alemante G Selassie, College of William and Mary Law School, William & Mary Law School Scholarship Repository, 2003, AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicants meet the criteria for the grant of protection visas.
Country of reference
According to the protection visa application, the applicants claim to be citizens of Ethiopia and provided copies of their passports, birth certificates and a marriage certificate to the Department. Based on this material the Tribunal finds that the applicants are who they say they are and citizens of Ethiopia. Ethiopia is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[9] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[10] This is consistent with the established proposition that it is for the applicant to make his or her own case.[11]
[9] Section 5AAA of the Act.
[10] Ibid (with effect from 14 April 2015).
[11] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169–70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[12] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[13] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[12] Fox v Percy (2003) 214 CLR 118.
[13] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[14] A similar approach is taken in the Department’s Refugee Law Guidelines[15] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[16] which provides useful guidance for this Tribunal.
[14] SZLVZ v MIAC [2008] FCA 1816 at [25].
[15] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).
[16] UNHCR, re-issued February 2019 at [203]–[204].
Political opinion – imputed anti-government profile – interaction with farmers in 2015
The primary applicant’s evidence in relation to this claim was vague and limited to his father having informed him that after the 2016 demonstrations by farmers in the Oromo area as to land acquisition for the expansion of Addis Ababa some local government (Oromo) officials had questioned his father as to the primary applicant’s interaction with those farmers in late 2015. Under questioning the primary applicant agreed that after his father had explained to the officials that the primary applicant had been working for a government-funded and sanctioned [project] through an Australian scholarship and grant to provide assistance and advice to those farmers, he (his father) had since not been further questioned by any officials either from the Ethiopian government or the local Oromo authorities about the primary applicant’s interactions with these farmers who were purported to have been involved in anti-government protests in 2016.
The applicant also agreed that the only other instance whereby his family were questioned by authorities about him had been an isolated incident when his father was questioned about the whereabouts of the primary applicant after he had failed to return to Ethiopia after the expiration of his scholarship to Australia. Given there have been no further inquiries by the federal and/or local authorities as to the primary applicant’s interactions with the farmers and the primary applicant’s evidence was that he had only met with these farmers on three occasions, the Tribunal is not satisfied that the primary applicant has had, or will have, attained in the reasonably foreseeable future an actual and/or imputed national and/or local (Oromo) anti-government profile as a result of his interaction with Oromo farmers in or around late 2015.
The applicant also indicated that he had shown his support for the farmers through [social media] comments since 2016. The Tribunal has given little weight to these [social media] postings, given that firstly, such postings were not supported by any other corroborative evidence and that they had been presented to the Department in hard-copy printouts only; and secondly, and more significantly, the Tribunal notes that the primary applicant’s evidence was that there had been no further questioning of his parents and siblings as to his involvement with the farmers after his father had explained that he had been working for the government on [a] project with those farmers. As such the Tribunal is not satisfied that the applicant has or will in the reasonably foreseeable future have attained an anti-government profile with the Ethiopian and/or the local Oromo authorities as a result of any [social media] postings he has purported to have made in relation to the 2016 demonstrations by Oromo farmers and/or any other political comments as to the Ethiopian and/or Oromo state governments.
The primary applicant also relied upon his interest in and support of the ESAT briefing. His evidence as to his interest in and support of this service was vague and without any detail. However, given the primary applicant was never a presenter on the service or attended any briefings in person and simply has professed support and monitored same together with the Ethiopian government’s deregistration of ESAT as a terrorist organisation the Tribunal is not satisfied that the primary applicant’s interest in and support of this service have caused him to obtain an anti-government profile. Further, noting that the primary applicant’s parents and siblings in Ethiopia have never been questioned as to the primary applicant’s interest in and/or support of ESAT, the Tribunal is not satisfied that the applicant would have or will in the reasonably foreseeable future attain an actual and/or imputed anti-government (federal and/or local Oromo) profile arising from his interest in and/or support of ESAT.
Given the evidence before the Tribunal and the Tribunal’s findings as outlined above the Tribunal finds that the primary applicant does not face a real chance of persecution for his actual and/or imputed political opinion and/or any actual and/or imputed anti-government profile involving serious harm arising from his interaction with the Oromo farmers and his interest in and support of ESAT. The primary applicant’s fears in this regard are not well-founded.
Membership of a particular social group – Oromo ethnicity not speaking Oromo
The primary applicant explained his fears in this regard as arising from his Oromo ethnic background and that he had been brought up in an Amhara-speaking household. He relied upon anecdotal evidence that when applying for the [scholarship] in Australia he had been informed that he had been unsuccessful and was only able to obtain that scholarship on his belief by making representations to the Director-General in Addis Ababa who had known him from a previous project. It was his evidence that Oromo officials had excluded him from consideration for the scholarship as he had been the subject of discrimination which arose from him not speaking Oromo. In this regard the primary applicant could only rely upon his suspicions to support this claim and his statement that his brother-in-law who also did not speak Oromo and had graduated from finance studies had been unable to obtain employment. Again, in this regard the primary applicant could only indicate to the Tribunal that he suspected that his brother-in-law’s inability to obtain employment was as a result of discrimination arising from him not being an Oromo-speaking member of the Oromo community.
Given the primary applicant having been able to obtain tertiary qualifications in Oromo and then obtain employment with government [authorities] in Oromo state outside of Addis Ababa and that he was able to conduct field work in this area unobstructed and/or unhindered in any way, together with being officially recognised as Oromo through his government-issued ID card, and that he was successful in obtaining and being funded through a government-approved Australian scholarship for further studies in Australia, the Tribunal does not find the primary applicant’s evidence convincing as to his alleged past and future fears of discrimination arising from his Oromo ethnicity and that he does not speak the Oromo language. The primary applicant’s education and work history together with his parents and siblings having been able to remain and subsist in Oromo state notwithstanding his evidence that his mother often does not receive service when shopping in Oromo, is at odds with this claim.
The Tribunal is not satisfied that the primary applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future because of his membership of a particular social group being that of being of Oromo ethnicity but not speaking the Oromo language. The Tribunal finds that the primary applicant’s fears in this regard are not well-founded.
Membership of a particular social group – well-educated with perceived wealth
In relation to this claim the primary applicant specifically identified the OLF and OLA as having been involved in kidnappings for ransom. He claims that he and his family could be targeted for such violence by such political groups in Oromo state and/or other criminal individuals or groups given his education and likely employment which will result in a perception of wealth. In this regard the Tribunal notes that the applicant when living and working in Ethiopia in [Industry 1] in Oromo state was not the target nor were any of his colleagues the target of any kidnappings, threats and demands for money by any of the Oromo political and/or militia groups or any criminals or criminal organisations. Further the applicant did not identify any such violence and/or threats having been made or directed at any of his family in Ethiopia or any of his friends and former work colleagues. Additionally, the available country information does not support the fears of the primary applicant insofar as the OLF and OLA targeting Oromo people for kidnappings and ransom as they are politically motivated militia groups who oppose the central control of Oromo by the federal government in Addis Ababa. The Tribunal finds that given the primary applicant’s past experiences in Ethiopia and in particular his ability to have conducted his work and research projects within Oromo state and the available country information he does not face a real chance of persecution involving serious harm arising from his membership of the particular social group of well-educated people who are perceived to be wealthy. The applicant’s fears in relation to this claim are not well-founded.
Refugee criterion
The Tribunal having considered all of the primary applicant’s claims both individually and cumulatively does not accept any of the applicant’s claims and is not satisfied that there is a real chance of serious harm for reasons of his political opinion whether actual and/or imputed, or membership of a particular social group or any other reasons identified in s 5J of the Act. The Tribunal finds that the primary applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the primary applicant is not a refugee within the definition of s 5H of the Act.
For the reasons given above the Tribunal is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the primary applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the primary applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the primary applicant meets the refugee criterion, that it is also not satisfied that the primary applicant meets the complementary protection criterion. Given the evidence before it the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the primary applicant being removed from Australia to Ethiopia, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal therefore is not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the primary applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the primary applicant does not satisfy any of the criteria in s 36(2) of the Act.
Additional findings – second, third and fourth applicants
As the Tribunal has found that the primary applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, the second, third and fourth applicants do not satisfy s 36(2)(b) or s 36(2)(c) of the Act, as they are not members of the same family unit as a non-citizen who holds a protection visa of the same class applied for in this application. Therefore the second, third and fourth applicants do not engage Australia’s protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
As the Tribunal has found that the applicants do not meet the refugee and complementary protection criterions and do not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicants have a right to enter and reside in a country other than Ethiopia.
MINISTERIAL INTERVENTION
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under s 417 of the Act. The guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning ministerial intervention provides as relevant factors, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’ and ‘exceptional economic, cultural or other benefit would result from the person being permitted to remain in Australia’.
In this regard, the Tribunal acknowledges firstly the personal circumstances of the third and fourth applicants being children aged [age] years and [age] years respectively and having lived and attended schooling in Australia since 2015, for a period of 7 years and the obvious serious social and psychological impact that would likely result if these children were to be returned to Ethiopia.
Secondly, the Tribunal notes that the primary applicant has a positive work and study history in Ethiopia and Australia, having worked in government [projects]. Such research and studies are all indicative of his significant skills and commitment to [Industry 1].
When considering all of the applicants’ circumstances the Tribunal considers it appropriate to support the applicants’ request to remain in Australia on a permanent basis so as the primary applicant may continue in his contributions to the [Industry 1] sector of the Australian economy. In considering the applicant’s case and the Ministerial guidelines relating to the discretionary power as set out in PAM3 ‘Minister’s guidelines on Ministerial powers: ss 351, 417, 501J of the Act’, the Tribunal notes that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the Minister thinks it is in the public interest to do so. The Tribunal considers that the circumstances of the applicants’ case raise both ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’ and ‘unique or exceptional circumstances’ that justify possible intervention by the Minister. Such circumstances are:
·That the removal of the third and fourth applicants to Ethiopia in circumstances of their age and having commenced their education here in Australia is such that it would most likely result in serious and irreversible psychological and emotional harm to these minors; and
·Unique and exceptional economic, scientific, cultural or other benefit that would result from the person being permitted to remain in Australia. The primary applicant has a work history and has obtained specialist post-graduate qualifications and work experience in [Industry 1] and the research and management of such services. These services are critical to the Australian community.
decision
The Tribunal affirms the decision not to grant the applicants protection visas.
David James
Senior MemberAttachment – 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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Standing
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Citations1911531 (Refugee) [2022] AATA 5114
Cases Citing This Decision0
Cases Cited14
Statutory Material Cited0
AWL17 v Minister for Immigration and Border Protection [2018] FCA 570AWL17 v Minister for Immigration and Border Protection [2018] FCA 570ABT16 v Minister for Home Affairs [2019] FCA 836