1911531 (Refugee) - [2022] AATA 5114

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 affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
CASES
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 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 1911531 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] AATA 5114
Decision Date: 6 December 2022

CaseChat Overview and Summary

This matter concerned an application for protection visas by a primary applicant and accompanying family members, who claimed they would face persecution if returned to Ethiopia. The applicant, of Oromo ethnicity, alleged involvement in discussions with farmers protesting government land acquisition and participation in online protests and a briefing by Ethiopian Satellite Television and Radio (ESAT), which he claimed was considered a terrorist media outlet by the Ethiopian government. He also feared being imputed as an anti-government activist and targeted due to his perceived wealth from studying overseas. The delegate had refused the visas, finding no real chance of serious harm due to imputed political opinion or ethnicity, nor a real risk of significant harm upon removal.

The court was required to determine whether the primary applicant had a well-founded fear of persecution for one of the five prescribed reasons under the Act, and if there was a real chance of persecution upon return to Ethiopia. Additionally, the court had to consider whether, in the absence of refugee status, there were substantial grounds to believe that the applicant would suffer significant harm as a necessary and foreseeable consequence of removal to Ethiopia. The court was directed to consider relevant guidelines and country information assessments.

The court affirmed the delegate's decision, finding that the applicant had not established a well-founded fear of persecution or a real risk of significant harm. While acknowledging past unrest and mistreatment of ethnic Oromos, the court was not satisfied that the applicant's profile placed him at such risk. The applicant's claims regarding imputed political opinion, his association with ESAT, and fears of robbery and extortion were not considered sufficient to meet the threshold for protection obligations under the Act. The court applied the "real risk" test for significant harm, which it equated to the "real chance" test for well-founded fear.

The court affirmed the delegate's decision to refuse the protection visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.