1912287 (Refugee)

1912287 (Refugee) [2022] AATA 2506 (31 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Paul Joseph Smith (MARN: 9576905)
CASE NUMBER:  1912287
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Peter Haag
DATE:31 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a).
The Tribunal notes s 5H(2) of the Act may have application in this case.

Statement made on 31 May 2022 at 3:40pm
CATCHWORDS
REFUGEE – Protection Visa – Ethiopia – ethnicity – race – Tigray man – political opinion – long-standing political activities against the current government of Ethiopia – political opposition to the Tigray People's Liberation Front – applicant is willing to dishonestly manipulate the migration laws of Australia – applicant has a well-founded fear of persecution failed asylum seeker – decision under review remitted

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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 August 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Ethiopia, applied for the visa on 4 May 2015. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is 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 applicant (s 36(2)(b) and s 36(2)(c) of the Act).
The applicant appeared before the Tribunal on 27 May 2022 to give evidence and present arguments.
[Two named individuals] were available to give evidence at the hearing for the purpose of corroborating the applicant’s claim to be a citizen of Ethiopia who was born in the city of [City 1] in Tigray state and that he is of Tigrayan ethnicity. The Tribunal indicated to the applicant and his representative that there was no issue as to his ethnicity. Upon that indication the applicant instructed his representative that he no longer proposed to adduce evidence from either witness and the representative informed the Tribunal accordingly. The hearing proceeded on the basis that the applicant is Tigrayan.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.
The applicant was represented in relation to the review.
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.
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
Section 5AAA of the Act
The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of any claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Chronology
The applicant claimed that he fled Ethiopia to [Country 1] in 1989 and received a temporary permit to stay.[1]
[1] Part C protection visa application, Department file [number] in Tribunal file 1912287, Doc ID 5702742.
In 2006, the applicant began a relationship with [Ms A] while living in [Country 1]. They had a son, [namely] [Child B]. Around 2009, the [relative] ([Ms C]) of his then de facto partner ([Ms A]) agreed to sponsor the applicant for a partner visa to Australia. In the application, the applicant stated that his de facto partner [Ms A] was his niece. In a statutory declaration, signed and dated 6 November 2017, the applicant stated that he had obtained a fake birth certificate for their son that showed the applicant was his father, but that his mother was a woman called ‘[Ms D]’ who had died.[2]
[2] Department file [number] in Tribunal file 1912287, Doc ID 5702734.
According to a baptism certificate, the mother of the applicant’s son [Child B] is [Ms D].[3]
[3] Tribunal file, 1825269.
The applicant and his family arrived in Australia on a TO-300 Prospective Marriage visa on [date] June 2012. He married [Ms C] on [date] June 2012 and was granted an 820 Temporary Partner visa on 21 September 2012. The applicant, [Ms C], [Ms A] and their son lived in the same house. On [date], the applicant and [Ms A] had a daughter, [Child E].
The applicant was refused a Subclass 801 Permanent Partner visa on 24 April 2014. On 7 December 2012 the applicant and his family left the house they had been living in with [Ms C] and took out an intervention order against her based on a claim of family violence. The applicant and [Ms C] divorced on [date] July 2015.[4]
[4] Protection visa decision record, Tribunal file 1912287, Doc ID 5916339; Divorce order – Department file [number], folio 45; Department file[number] in Tribunal file 1912287, Doc ID 5702755.
The applicant applied for a protection visa on 2 April 2015.[5] The applicant stated that he had been in a relationship [from] June 2012 but had separated on [date] December 2012.[6] In Part B of the protection visa application, the applicant provided details of persons included in the application, listing [Ms A] as his niece, [Child B] as his son and [Child E] as the daughter of his niece.[7] [Ms A] made a separate application for a protection visa as the primary applicant on 4 May 2015.
[5] See note above regarding the date of application.
[6] Part C protection visa application, Department file[number], folios 15 to 29.
[7] Department file [number], folios 7 to 13.
In correspondence dated 26 February 2018, the applicant’s then representative wrote to the Department to add [Ms A] as his then de facto partner and [Child E] as his daughter to his application.[8] On the same date, the applicant and his son ([Child B]) were also added to the protection visa application of his then de facto partner.[9] The applicant declared he was in a de facto relationship with [Ms A] that began in January 2006 in [Country 1].[10]
[8] Department file [number] in Tribunal file 1912291, Doc ID 5703564.
[9] Department file [number] in Tribunal file 1912291, Doc ID 5703562.
[10] Part C protection visa application, Department file [number] in Tribunal file 1912287, Doc ID 5702742.
The delegate refused both applications for protection visas on 10 August 2018.
The applicant and his then partner, [Ms A], have now separated. Due to the separation, the Tribunal has administratively separated their review applications.
This is a review of the delegate’s decision with respect to the applicant’s individual protection claims.
The applicant provided a copy of the delegate’s decision to the Tribunal and the Tribunal has read that decision.
Applicant’s identity
2015 protection visa application
In his protection visa application dated 26 February 2015,[11] the applicant claimed to be an Ethiopian citizen, born [date] in [City 1],[12] Tigray. The applicant claimed that he was Orthodox Christian and of Tigrayan ethnicity. The applicant stated that he can read, write and speak English, Tigrinya and Amharic, and that he can speak Arabic.[13]
[11] Lodged 2 April 2015 according to the delegate’s decision, and stamped as ‘received 7 April 2015’.
[12] Misspelt as ‘Ayum’ in the application.
[13] Part C protection visa application, Department file [number], folios 15 to 29.
At the time of application, the applicant claimed his father was deceased, his mother and one sister were living in [Country 2], [number of siblings] were living in Ethiopia, and one sister was living in [Country 3].[14] He also listed [Ms C], his ex-wife, as a member of his family unit not included in the application.
[14] Part C protection visa application, Department file [number], folios 15 to 29.
The applicant stated that he lived in [City 1], Ethiopia from January 1985 until February 1989, in [a] Refugee Camp, [Country 1], from August 1989 to December 1989, and [City 2], [Country 1], from January 1990 to May 2012 before arriving in Australia in June 2012.[15]
[15] Part C protection visa application, Department file [number], folios 15 to 29.
He attended primary school from 1975 then high school from 1980 until 1986 in [City 1], Ethiopia.
The applicant stated his occupation as ‘[Occupation 1]’. From October 2004 until June 2012 he worked as a [Occupation 1] for [Employer 1] in [Country 1]. He was unemployed from June 2012 until March 2013, then worked as [various roles] in Australia.[16]
[16] Part C protection visa application, Department file [number], folios 15 to 29.
The applicant provided the Department with a copy of his birth certificate[17] and heavy vehicle licence (expiry 22 November 2015).[18] The documents provided by the applicant are consistent with his evidence to the Tribunal in relation to his identity. There is no evidence to suggest that the applicant has a present right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant the Tribunal finds that he is a national and citizen of Ethiopia, and as such his protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively.
[17] Department file [number], folio 55.
[18] Department file [number] in Tribunal file 1912291, Doc ID 5703541.
Applicant’s evidence
In his 2015 application for a protection visa, the applicant made the following claims:[19]
[19] Part C protection visa application, Department file [number], folios 15 to 29.
I am seeking protection in Australia so that I do not have to return to (name of country or countries that you are able to legally enter and/or reside in. This includes countries you are a citizen or national of or you have a current visa for)
Ethiopia.
Why did you leave that country(s)? Provide specific details
When I was young I was a very vocal member of my local youth movement which distributed Mengistu Hailemairaim's Derg political propaganda. I traveled and disseminated the ruling party’s political message and ideology, actively encouraging youth to join our movement and not support the Tigray rebel ideologies and TPLF movement. I trained for media and public relations targeting the TPLF, trying to cause the youth to turn away from the rebels. I distributed pamphlets, performed songs and chants, installed billboards and wrote comical characters depicting the rebels as the enemy to Ethiopia’s unity. My identity became more known which was very dangerous for my safety, I was a Tigray by birth, a local resident of [City 1] and I saw TPLF as the enemy (which was not the norm in [City 1]). This made me a target for the TPLF rebels and I was now starting to be very cautious about my movements and activities. I was arrested by the TPLF in 1989, branded a traitor and taken to prison. On the journey to the prison I received a beating at each checkpoint. I was beated at the prison every day, and interrogated about my involvement with the (then) government. I was denied food, water, family, legal support and medical treatment. I was in constant pain. I noticed after some time that the number of prisoners was getting smaller and men who were called at night for interrogations were not returning. There was heavy rain at the prison and it flooded, so we were to be moved to another facility and were escorted out of the prison by soldiers. While we were marching we came across [a] river. While we crossed the river there was a big rush of water and we were swept downstream. Thankfully I could swim and I balanced on a log and made it down the river. I and the others who escaped hid in famrs and kept a low profile. I then traveled to the border with [Country 1] and escaped to [Country 1].
What do you think will happen to you if you return to that country(s)?
The TPLF who tortured and imprisoned me for my political beliefs and associations formed the Ethiopian People's Revolutionary Democratic Front, which now governs Ethiopia with a very large majority. If I return to Ethiopia they will persecute me as they did before.
Did you experience harm in that country(s)?
The TPLF rebels arrested me, beat me, interrogated and tortured me, deprived me of food and water and denied me legal or medical help. The TPLF harmed me because I supported the (then) ruling Derg Government.
Give reasons for why you did not try to seek help
I was very scared and I had just escaped imprisonment by the TPLF. I just needed to get out of Ethiopia as the TPLF were gaining control of the country.
Give reasons for why you did not try to move to another part of the country(s)
The TPLF were gaining control everywhere and I did not believe that any part of Ethiopia was safe. I had also only just escaped terrible treatment and denial of my human rights at the hands of the TPLF, and I didn't believe anywhere in Ethiopia was safe from them.
Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
Ethiopia is now ruled by EPRDF which is the same group as the TPLF which stripped me of my democratic and human rights. The Ethiopian government is made up of the same people who persecuted me and killed so many others. If I returned to Ethiopia I would continue to tell the truth about the government. I believe I would still be a target as the TPLF does not forget or forgive those who stood against them.
Give details about why you think the authorities could not, or would not, protect you
The TPLF (now the Ethiopian People's Revolutionary Democratic Front) are the ruling party in Ethiopia so they would not protect me from themselves.
Give details about why you are unable to relocate
Because the TPLF (now Ethiopian People's Revolutionary Democratic Front) is the ruling party of Ethiopia there is no safe place for me. They exist throughout Ethiopia.
The applicant also provided a statutory declaration signed and dated 19 February 2015 to support his protection visa application. While elaborating on the details given in his protection visa application form regarding his political activities, arrest by the TPLF and escape to [Country 1], the applicant also claimed the following:[20]
[20] Department file [number] in Tribunal file 1912287, Doc ID 5702755.
15. As escapees we hid in the farms and sheds in the local area keeping a low profile and eating whatever we could scavenge, steal, kill or harvest. We walked for several days until we bumped into some locals whom we asked where we were and made a dash for the [Country 1]/Ethiopia border upon their advice and direction. I and the other escapees arrived at the border and entered [Country 1] Territory after walking for several hours we were approached by a local who worked on a farm and we were given directions. Soon enough we reached [a] Refugee Camp which is on the border of Ethiopia and [Country 1], located in [Country 1]. The date was [date] August 1989. I spent a week at that camp before heading to a much bigger Refugee [Camp].
16. Whilst at [the] refugee camp, where I remained for about four months, I started to notice that a covert Spy TPLF operation was in progress and many strange things were happening during the darkness. Kidnapping of most wanted escapees especially traitors or government workers were getting conducted in secret. I did not release my identity to anybody whilst at the camp as to not arouse any suspicion I maintained a low profile to ensure my safety. I started to receive some intelligence from people in the camp that a mass arrest and deportation to Ethiopia was imminent. I decided I was not going to sit around and wait for my captors to return so I fled the Camp to [City 2].
17. Whilst in [City 2] I befriended likeminded individuals and continued to spread the campaigns we ran in Ethiopia. We continued to resists the TPLF rebel’s occupation of Ethiopia whilst in [City 2] by establishing various working committees, who would conduct political education, protest marches and fund raising activities. We would call upon Ethiopians of all backgrounds to participate and donate whatever means they had to further our efforts to assist the Ethiopian soldiers.
18. On one occasion, in 1999, we had organised a peaceful rally protesting the forced occupation of Ethiopia by TPLF rebels and luckily we got the attention of the local press. A journalist and a photographer were present asking questions to the protesters of which some spoke very little Arabic and taking photos of the demonstration. The article was printed about a week or so later with our photos and slogans featured in the newspaper. Upon printing of the article there was a mass arrest of the participants by the [Country 1] Security Agency. We later understood that [Country 1] and Ethiopia had a memorandum of understanding and bilateral relations regarding the harbouring of opposing political party groups. Upon our arrest it was explained to the group that we must stop any association of this kind or face charges resulting in imprisonment or worse deportation. We were released with a slap on the wrist and told to report to the local police station if we were required. Upon our release we had to move all of our campaigns efforts underground as to avoid detection.
19. I undertook a very dangerous mission during 2003 by coordinating and managing a fund and material raising ring for Ethiopian soldier’s stationed in [Country 4]. I would collect money, medication, and certain food items and send them over the border to the Ethiopian soldiers stationed close to [Country 1] border. Due to concerns regarding spies infiltrating the group the entire mission was kept very secret at times ending in disastrous outcomes as the items sent were intercepted and fell into the wrong hands. I previously had a warning by the [Country 1] security authority about my activities so I was very careful and always on the edge.
20. Soon enough I was again dobbed in by TPLF spy agents to the [Country 1] security authorities which resulted in my arrest followed by a flogging and numerous interrogations. During this time I fell very sick and one night I was left in front of a hospital to die. I regained consciousness inside the hospital but I did not speak a word regarding my treatment at the hands of the [Country 1] Security Agency fearing repercussions. Verbal assaults and mental torture by TPLF spy agents continued to haunt me throughout my stay in [City 2] telling me how I was awaiting further punishment and torment unless I stopped my activities.
21. Between 2004 and 2012 when I migrated to Australia on a fiancée visa, I managed to keep myself out of harm’s way in [Country 1]. I was working for the nongovernmental organisation [Employer 1] who provide very high security for their staff. They also are protected by diplomatic immunity which made me feel a little bit safer. I also avoided many things to keep myself safe – I didn’t attend meetings with large amounts of people, I kept myself busy, worked very hard. I avoided my home by spending a lot of time at work. [Employer 1] distances itself from politics so officially I stopped all my participation in government activities. I tried to avoid public events, gatherings and rallies, but I continued to exchange information with my friends, have many serious private discussions, and informal sessions. But I always felt that people were behind me every step of the way. Through my role at [Employer 1], we had to constantly travel to border villages – [doing specified work] – and the closer I went to Ethiopia, the more threatened and followed I felt.
22. Ethiopia is now ruled by EPRDF the same rebel TPLF which has stripped me of my democratic and violated my human rights. The Ethiopian government is made up of the same blood thirsty men who were killing the innocent and raping the women for their own political advancement. The Ethiopian government is further intensifying oppression of its citizen by shutting down private newspapers or news outlets.
23. Continuously jamming or shutting down radio stations and denying or blocking access to foreign owned websites has become a new wave of injustice in Ethiopia. Ethiopia has adopted a new anti-terrorism legislation where peaceful protest could result the participants in Jail. TPLF does not and has not recognised the rights of Ethiopian citizens, individuals such as me who continually campaign against their regime are number one targets. My return to Ethiopia or its neighbours would result in instant arrest and I am sure the outcome will be very grim.
24. If I was forced to return to Ethiopia, I would continue to tell the truth about the government, and I would not be able to suppress my opinions. Written words are stronger and a better weapon than a solder, particularly in the eyes of the Ethiopian government. I believe I will still be a target – we made a lot of campaigns against the government and they do not forgive and forget acts of “terrorism” (how they define opposition movements like ours) easily.
25. I have never held a travel document for my home country, and fled Ethiopia illegally as a political refugee over 20 years ago. I think I will have enormous trouble attempting to return.

The applicant also provided a statutory declaration, signed and dated 6 November 2017, in which he made the following claims:[21]
[21] Department file [number] in Tribunal file 1912287, Doc ID 5702734.
My activities in [Country 1]
4. Before I started to work at [Employer 1], I was heavily involved in organising meetings which were specifically targeted towards opposing the Ethiopian ruling government. We organised big meetings about twice a year in community clubs. The big meetings would be organised by phone, I would assist to find the place, to organise the date and the time and to advise the attendees of the details. I would work with others to prepare the agenda. We would talk about what we heard in the media and share ideas for fundraising. The Ethiopian embassy conducted many activities in [Country 1] and we would work against those activities. For example, if an important politician came from Ethiopia and they organised an event to spread their propaganda, we would meet with Ethiopians and encourage them not to participate. The only place that we felt safe to protest was in front of UNHCR and this is where we would sometimes go to protest against the actions of the Ethiopian Government.
5. We also met in smaller groups on a more regular basis, as it was safer and easier to meet in smaller groups. It required less coordination to do this but we still took many precautions. We had a security chain where one person was responsible to contact just one or two other people, for one person to have the contact of more than two people was dangerous if they got caught. We would organise fund raising activities and the delivery of goods to the [Country 4] border to support the Tigray People's Democratic Movement (TPDM, also known as Dem hit). TPDM is an armed Ethiopian rebel organisation [and] we supported them from [Country 1] as often as we could. A person in each suburb was responsible for collecting money from those who wanted to donate and we would also collect money at gatherings. We would buy items such as medicine and sugar and organise them to be delivered to [a town], which was on the border of [Country 1] and [Country 4]. We would take them ourselves or we would organise a driver. It would take one day to drive there and one day to drive back. We would often use local drivers to drop the items because the drive was so long but I did these trips myself several times.
6. After I started to work at [Employer 1], I stopped all frontline activities due to my employment but continued to work in the background. In [Country 1], we all lived in compounds. There would be approximately five rooms in each compound and each room would be rented by two or three people. We would often just leave our things in the rooms and all sleep outdoors when it got too hot to sleep in the rooms. Everyone in my compound was involved in activities against the Ethiopian government, we were careful in choosing who moved into the compound so that we could be safe. I would meet with people in our compound or in their compound, to discuss the ongoing problems in Ethiopia and to assist with the organisation of fundraising or meetings but I no longer did these activities myself. We had community members getting arrested every few days. In [Country 1], if you're Ethiopian, you have an identity card and are allowed to reside in the community. If you're arrested by the police and questioned, your friends can report it to UNHCR and they can intervene and have you released. But if it was [Country 1]'s security forces that arrested you, you could be handed to the Ethiopian embassy or deported in secret. I heard of this happening to three or four people who were supporting us. I myself was not arrested by the police after I started to work at [Employer 1] but police would come to our compound every now and then conduct door to door checks in sudden raids. This is why it was so important to be careful of who you lived with and who you spoke to as an Ethiopian in [Country 1]. We were constantly vigilant to stay safe and do what we could to support the TPDM.
7. I met [Ms A] at the gathering of an extended family relative [in] [City 2] in 2006. She lived in a compound close to mine and after we started a relationship, she moved into my compound. She became a trusted and reliable messenger for my activities. In [Country 1], it is easier for women to move around because all attention is on the males conducting activities. Women are respected but do not attract as much attention and many of the Ethiopian women worked as maids in [Country 1], allowing them an excuse to move around freely. [Ms A] would move around [Country 1], attend meetings and relay my messages to attendees and also assist with the organisation and execution of fundraising activities. We spent a lot of time together while working together and were very connected to each other.
Preparations to leave [Country 1]
8. Our son, [Child B] was born on [date]. A true copy of his birth certificate shows that [Ms A] and I are his parents. Once [Child B] was born, we started to think of our future. We could not bear to think of our son living a life such as ours, where we were constantly afraid of being caught conducting activities against the Ethiopian government while at the same time, loving our country so much that we could not bring ourselves to stop conducting these activities. We started to talk about leaving [Country 1]. We had always felt tense about our situation in [Country 1] but our security was starting to become even worse, everything was getting together, politically, religiously, economically. When I first arrived in [Country 1] I had hope that one day I could return to Ethiopia or at least to have some sort of a future with a family in [Country 1]. I began to realise that both options were futile, there was no hope for a future lived in safety with my family in either of these countries. Every day in [Country 1] was worse than the one before it.
9. [Ms A] had a [relative], [Ms C], who had come to Australia in 1991. [Details of the relationship deleted]. [Ms A] and [Ms C] would call each other at least once a week by telephone using phone cards. She knew about our circumstances and wanted to help. [Ms C] and I knew each other in [Country 1] during my [age] as we were in the same social group and we used to meet at Sunday school in church. We did not have any further contact until I started my relationship with [Ms A].
10. [Ms C] said that the only way she could think of to help us was to sponsor me to Australia as her partner and for [Ms A] to be included on the application. We were desperate to get out of [Country 1] at this point and I had some savings from my work with [Employer 1] which put us in the position to be able to do this. The paperwork was completed by [Ms C] and I and we were assisted by [Mr F]. I also knew [Mr F] from [Country 1]. He was a relative of [Ms C]'s parents who had sponsored them to come to Australia. I understand that the Department believes that he conducted fraudulent activities in relation to visa applications but I had no knowledge of this. He was an old acquaintance who wanted to assist me and he helped me · with the paperwork and paid the visa application charge on our behalf. This is the extent of my relationship with [Mr F].
11. I applied for a Prospective Marriage (Subclass 300) visa on 2 June 2009 under the sponsorship of [Ms C]. I obtained a fraudulent birth certificate to show [Child B]'s mother to be [Ms D] and also provided her death certificate. [Ms D] was a community member who lived in the same housing compound as us and she passed away from a terminal illness. I had access to her documents and was able to obtain fake documents. I know it was wrong to do this and I feel terrible that this is what we had to do to leave [Country 1]. But we were desperate for our son to have a better life and a better future.
12. The Prospective Marriage (Subclass 300) visa application was refused on 31 January 2010 but it was successful on appeal to the Administrative Appeals Tribunal. [Ms C] organised the appeal to the AAT and she organised a lawyer to represent her. The Department requested DNA testing for [Ms A] but we said that we could not afford to do this whilst in [Country 1] and also it was not a mandatory requirement. We both provided Statutory Declarations stating that I was her guardian. Again, I apologise for providing this incorrect information but we were so desperate to leave [Country 1].
13. We found out that [Ms A] was pregnant in [year]. We did not disclose this information to the Department because we feared that it would further complicate things. We attended an interview with the Department on 21 February 2012 and were granted the visas on 22 April 2012.
Coming to Australia
14. We entered Australia on [date] June 2012. I married [Ms C] on [date] June 2012 and made an application for a Partner (Subclass 820/801) visa on 14 June 2012.
15. After we arrived in Australia, we all lived in the same house. [Ms C] was extremely controlling and we started to argue a lot because she would control all the finances and other aspects of our life. She isolated us from people that we knew from the community and refused to take us to social gatherings. She bullied me and forced me to constantly clean the house, no matter how clean it was. She would control my phone calls, text messages and emails. She would restrict our access to food and only let us eat the bare minimum. I wanted to work but she would not let me work because she said that my income would reduce her access to benefits. She told me to work for cash in hand and I refused to do this, I already felt terrible about the lies that we told the Department and I did not want to get in further trouble for not reporting my true earnings. There were many friends who helped us with money during this time. It is an awful time to think about. [Ms A] would have milk for breakfast and dinner and [Child B] would just have bread with jam. Every day there was an argument and more than the way she treated me, I could not bear the way she shouted at [Ms A] and [Child B]. It was a terrible environment for a child to be in and I knew that something had to change. Still, we were trapped. We had left [Country 1] only to find ourselves in a terrible situation in Australia. We did not know what to do.
16. Our daughter, [Child E], was born on [date]. We advised the Department of her birth. We requested that she be included in our application in January 2013 in order for her to access Medicare. My Partner (Subclass 820) visa was granted on 21 September 2012.
17. Things got worse and worse in the household. [Ms C] would always threaten to report and deport us. Around October 2012, we had to baptise [Child E]. [Ms C] refused to take us to the Ethiopian Orthodox Church that we wanted to go to and took us to the Coptic Church instead. We were furious and we finally decided that we had to leave. We left at midnight that day and went to the house of a [friend]. We went to Legal Aid to get help. I had to get medication for depression. The date stated on the intervention application is correct and true as the date we left the house.
18. I remained with [this friend] for few days and [Ms A] and the kids stayed with my friends in [a suburb]. We supported ourselves with the savings that I brought with me from [Country 1] and our friends continued to support us. The Department received information from Legal Aid on 6 February 2013 that I left the family home on [date] December 2012 because of the violence of [Ms C] towards my family and I.
19. I made an application in [a] Court for an intervention order and hearing was to be held on [date] June 2013. The application was struck out because I had spent the night at the hospital with [Child E] who was sick and was unable to attend the court appointment. I did not re-apply because just this was enough to scare [Ms C] and she stopped bothering us. We were relieved to finally be free of her but had no idea as to what to do next. I still had savings and [Ms A] and the children were receiving money from Centrelink. We reported our change in visa to them but the payments did not change. We did not know that we were not entitled to the payments that we were receiving and now have a debt of over $20,000 to repay to Centrelink. The Ethiopian community also helped us a lot by donating food and money to us. They knew of our situation and assisted us as much as they could.
20. On 8 December 2014, the Department sent a letter requesting documentation to regulate [Child E]'s visa status. On 11 December 2014, we received a letter from the Department requesting comment on suspected 'non genuine' information. At this point, [Ms A] and I were stressed beyond belief and were in shock, we no longer knew what to do or what to say. It was all a complete nightmare.
Appointing a Migration Agent
21. We appointed a migration agent on 24 December 2014 upon advice from a friend. I paid for the funds myself from my savings and borrowed the remainder from friends. The migration agent did not require all the fees at the same time and had a payment plan which helped out. We were too scared to tell the migration agent everything at this point, we didn't know what to do or what to say, we were just so afraid for ourselves and our children. We were stressed and could not face the idea of having to go back to [Country 1].
22. The migration agent requested waiver of passport requirement for [Child E] on 29 January 2015 and the Department asked for evidence on why a passport could not be provided.
23. The migration agent responded on 23 February 2015 that I was still awaiting a response from the Ethiopian Embassy regarding an email enquiry. The agent also said that I was afraid of applying directly with the Ethiopian Embassy as I fled Ethiopia in 1989 after suffering imprisonment and mistreatment of the then antigovernment rebel group TPLF. We were refugees in [Country 1] and had no Ethiopian identity documentation. I obtained Ethiopian ·documentation by arranging my brother to obtain them on my behalf I am unsure of how he was able to obtain the birth certificates
24. The migration agent responded on 27 February 2015 that I had not informed the Department of [Ms A]'s pregnancy because she had not told me immediately and I was not sure of it till much later. We also stated that [Child E]'s father was unknown. I did not tell the previous migration agent the whole truth because I was scared of what would happen to me and my family.
25. The Department refused my Partner (Subclass 801) visa on 24 April 2015. The letter noted that an employee of Centrelink, [Mr F] was being investigated for involvement in immigration fraud and located emails exchanged between myself and [Mr F]. The Department of Human Services records also stated that [Ms A] was the mother of [Child B] and [Child E]. [Mr F] was at the time working at [a] office and because he spoke the same language and were from the same culture he undertook the registration process as per his normal work duties.
26. [Ms A] and I were then advised to lodge two separate Protection visa applications. After lodgement, we engaged the services of [a law firm]. It was after meeting with [the representative] that we understood the great importance of telling our whole story and this is what we do now. We are truly sorry for the misrepresentations that we made but hope that they are understood in the context of what [Ms A] and I went through back in [Country 1] and in Australia. All we want is a stable future for our family in Australia, free of the tension and the fear that we felt throughout our lives in Ethiopia and [Country 1].
The applicant also provided the following letters of support:[22]
a)    Letter from the chairman of [an organisation] in Victoria dated 7 November 2017 in support of the applicant and his family;
b)    Letter from the Principal of the school attended by the applicant’s son, dated 13 November 2017, providing a character reference for the applicant and his then partner;
c)    Letter from [the] applicant’s accountant, dated 9 November 2017, providing a character reference for the applicant;
d)    Letter from the [an organisation] Victoria, dated 14 November 2017, in support of the applicant’s then partner and her family; and
e)    Letter from [a] Church Inc Melbourne, dated 13 November 2017, stating that the applicant and his family are active members of the church community.
[22] Department file [number] in Tribunal file 1912287, Doc ID 5702755.
The applicant’s then representatives made submissions to the Department dated 9 February 2018, summarising the applicant’s claims as stated in the statutory declarations dated 19 February 2015 and 6 November 2017, and submitting that, inter alia:[23]
a)    the applicant has been politically active all his life and is passionate about the problems in his home country and fears harm in the form of death, threats on his life, deprivation of liberty and serious injury, as a result of his political opinion against the government of Ethiopia;
b)    On the basis of country information from DFAT, Human Rights Watch, Amnesty International, Freedom House and the US Department of State, the very real risk that the applicant would face upon return to Ethiopia is clearly established;
c)    State protection is not available to the applicant as the harm that he faces is at the hands of the Ethiopian government;
d)    The applicant ‘no longer has a right of residence in [Country 1] because registered refugees are required to renew their residence permit every year under section 7(2) of [Country 1]’s Asylum Regulation Act 2014. He departed from [Country 1] as the holder of a Prospective Marriage (Subclass 300) visa almost six years ago and is not entitled to any right of residence in [Country 1] any longer’;
e)    If the applicant doesn’t meet s 36(2)(a), then complementary protection must be extended on the basis that there is a real risk that he will suffer significant harm as the applicant fears deprivation of life or cruel and inhuman treatment or punishment, he cannot relocate within Ethiopia, no state protection is available, and the risk isn’t faced by the population generally;
f)     The applicant ‘has been the subject of severe harm in Ethiopia and in [Country 1] as a result of his long-standing political activities against the current government of Ethiopia. He holds a wellfounded fear of persecution upon return to Ethiopia, verified by independent country information which confirms the long-standing targeting of political opponents by the current government of Ethiopia’.
[23] Department file [number] in Tribunal file 1912291, Doc ID 5703572.
On 20 May 2022, the applicant’s representative provided the Tribunal with the following documents:
a) Statutory declaration, signed by the applicant and dated 18 May 2022, stating, inter alia:
6. My siblings and I were born in [City 1]. I have [number of siblings] who were living in Ethiopia, three in [City 1] and two in Addis Ababa. I have not had contact with these [siblings] who were living in [City 1] since the civil war commenced. Since the civil war commenced I have had very limited contact with my brother [Mr G] who is living Addis Ababa. Twice we have spoken briefly for about two to three minutes, he said he was okay, that his house had been searched, that he had not been arrested, that he has had no contact with our mother or siblings in [City 1], that he had no contact with our other brother [Mr H] who had been living in Addis Ababa that I should not call because the Government is monitoring calls. I have also been in contact about five times by [social media] with [Mr G], he advised that he had been searched, that he had been staying in house for a long time, that he had no contact with family in Tigray.
…
12. The conflict between the Tigray People's Liberation Front TPLF (now Tigray Defence Force) and federal forces commenced in November 2020 and spread in the whole Tigray region and surrounding areas. For weeks the [Country 4] troops systematically killed hundreds of unarmed civilians in the city of [City 1], opening fire in the streets and conducting house to house raids searching for mend and boys and executing them.
13. I cannot return to [City 1], my life will be in danger. As a Tigray man I will be at risk of being captured and executed by federal forces.
14. I have been away from my hometown [City 1] for most part of my life, I fled my country because of my political opposition to the Tigray People's Liberation Front. If I were to return, I will be in danger from the TPLF military group because of my past opposition to the party. Because of my ethnicity being a Tigray man, I will be at risk of being killed by the hand of the government [Country 4] troop and the Amhara regional forces.
15. There is no other area in Ethiopia where I could safely return to. If I were to return to Addis Ababa, I will be at risk of being detained by the government authorities because I am of Tigrayan ethnicity. The Ethiopian security forces have been arresting and enforcing disappearances of Tigrayans under the suspicion they might be linked to the TPLF which the Ethiopian's parliament has designated as a terrorist group. Tigrayans who have returned from overseas are arrested and accused of being terrorists. Ethnic Tigrayans who were part of the UN Peace Keeping forces in [Country 1] were arrested when they returned to Ethiopia and those still in [Country 1] have refused to return to Ethiopia.
b) Submissions from the applicant’s representative, dated 19 May 2022, submitting that the applicant ‘is a person to whom Australia has protection obligations under subsection 36(2)(a) of the Migration Act 1958 as he has a well-founded fear of being persecuted in Ethiopia because of his perceived political opinions and his ethnicity’. The submissions also referred to the conflict in the Tigray region and the risk of persecution the applicant would face if returned to Ethiopia. To support the submissions, the following country information was cited:[24]
[24] Tribunal file 1912287, Doc ID 9788829, 9788749, 9788737, 9788725.
i.Report of the Ethiopian Human Rights Commission (EHRC)/Office of the United Nations High Commissioner for Human Rights (OHCHR) Joint Investigation into Alleged Violations of International Human Rights, Humanitarian and Refugee Law Committed by all Parties to the Conflict in the Tigray Region of the Federal Democratic Republic of Ethiopia, 30 August 2021;
ii.Human Rights Watch, ‘Ethiopia: Eritrean Forces Massacre Tigray Civilians’, 5 March 2021;
iii.Amnesty International, ‘Ethiopia: Eritrean troops’ massacre of hundreds of Axum civilians may amount to crime against humanity’, 26 February 2021;
iv.Amnesty International, ‘Ethiopia – Crimes Against Humanity in Western Tigray Zone’, 4 April 2022;
v.Human Rights Watch & Amnesty International – ‘“We will erase you from this land”: Crimes against Humanity and Ethnic Cleansing in Ethiopia’s Western Tigray Zone’, April 2022;
vi.Human Rights Watch, ‘Ethiopia: Returned Tigrayans Detained, Abused’, 5 January 2022;
vii.UNHCR – Position on Returns to Ethiopia, March 2022;
viii.DFAT – Smart Traveller: Ethiopia Travel Advice and Safety, 5 April 2022; and
ix.Tribunal decision – 2103046 (Refugee) [2021] AATA 4151 (17 September 2021).
c) Signed declaration by the applicant that the submission dated 19 May 2022 accurately supports his claims.
The evidence at hearing

At hearing the applicant’s evidence established that after leaving school when he was [age] years of age, the applicant was employed to assist truck drivers to load their trucks and to tie down their loads. As the Tribunal understands the applicant’s evidence he was employed on a casual basis and his employment in Ethiopia did not involve truck driving.
The applicant lived in [City 1] with his parents and siblings before he left [City 1] and travelled to [Country 1]. The applicant’s father is deceased. His mother and two siblings live in [City 1]. He has not been able to communicate with them since the outbreak of civil war between the Tigray People’s Liberation Front (TPLF) and their allies and the Federal government and their allies in November 2020. During the conflict the Federal government cut-off all means of communication to Tigray.
Two of the applicant’s brothers are residing in Addis Ababa. It is difficult to communicate with them because of the fear that the Federal authorities are monitoring the telecommunications of Tigrayans living in the city.
According to the evidence, the applicant spoke to his brother [Mr G] about four months ago, after he heard that the security forces were acting against Tigrayans living in Addis Ababa. His brother was guarded when they spoke, fearful the Federal authorities were listening to the phone call but did say his home had been searched by the police and that he stayed at home as much as he could.
The applicant’s other brother, [Mr H], is living in Addis Ababa. He is married to an Amharic woman and he does not want the applicant to contact him. The Tribunal understood from the applicant’s evidence that [Mr H] gained some security from being married to a person who is Amharic.
The applicant’s remaining siblings are residing outside Ethiopia.
The applicant gave evidence about his claim that he was involved in political activity in his hometown of [City 1]. He claimed he was politically active there between the ages of [age] and [age] and that he left [City 1] for [Country 1] when he was [age] years of age.
According to the evidence at hearing, the applicant never joined a political party or other political organisation before he left Ethiopia. The applicant asserted that he actively supported the central government known as the Derg, a Communist military junta which seized power from the emperor in 1974,[25] against the TPLF because the TPLF was a separatist political organisation in Tigray.
[25] DFAT Country Information Report (12 August 2020).
In substance the applicant’s political activity amounted to distributing pamphlets that supported the government and attending rallies and speaking publicly in support of the government and against the TPLF.
The applicant claimed in the statutory declaration dated 18 May 2022, he provided to the Tribunal and in other written material, and in his evidence, that the TPLF took control of [City 1] and he was arrested and interrogated. He claimed he was able to escape when he along with other prisoners were being relocated to escape rising flood waters. The applicant went to [Country 1] where he lived in two refugee camps before taking up residence in [City 2].
In [City 2] the applicant found employment as a [Occupation 1] for a [company] and then he was employed by [Employer 1] as a [Occupation 1] between October 2004 and June 2012.
The Tribunal inquired of the applicant as to his choice to live in refugee camps in [Country 1] instead of making his way to Addis Ababa, the capital city of Ethiopia that was under the control of the Derg. The applicant said he was unable to get to Addis Ababa because the TPLF had surrounded [City 1] and they prevented him from getting to Addis Ababa.
In the context of living in refugee camps in [Country 1], the applicant asserted he was prevented from travel to Addis Ababa because forces loyal to the TPLF controlled the border with Ethiopia.
The applicant gave no evidence about planning to make or trying to make his way to Addis Ababa to live there, rather than travel to [Country 1] and live for years in the refugee camps there prior to the hearing, or at hearing. Further, the applicant’s evidence does not satisfactorily explain how he was able to leave [City 1] and Tigray and travel to [Country 1], but he was unable to make his way to Addis Ababa, or other parts of Ethiopia, which according to the DFAT country information report, was controlled by the Derg, being the federal government he claims he supported at that time at considerable risk to his personal safety.
According to the applicant’s statutory declaration (18 May 2022) he claims he ‘lived at the refugee camp in [Country 1] for many years.’ There is no evidence that the applicant contemplated, planned or tried to return to Ethiopia whilst it was governed by the Derg, the government he supported, rather than live in refugee camps in [Country 1].
The Tribunal finds the applicant’s explanations for not making his way to Addis Ababa or other parts of Ethiopia that were controlled by the Derg at that time,[26] or trying to do so, in preference to living in refugee camps in [Country 1] to be implausible.
[26] Ibid.
According to the applicant’s evidence, he was politically active while he lived in [Country 1] before October 2004 when he became a [Occupation 1] for [Employer 1].
The applicant asserts that before he commenced [working] for [Employer 1] he would arrange for goods, including food, to be smuggled into [Country 4] to support Tigrayans fighting there. He also asserts he was openly hostile to the TPLF until he commenced working for [Employer 1].
The applicant’s evidence about his political activities in [Country 1] is general in nature and lacking in persuasive detail.
In substance the applicant claims he cannot return to Tigray and to any other location in Ethiopia because he would be persecuted by members of the TPLF due to his opposing the TPLF in [City 1] for a relatively short period about 32 years ago. Additionally, he would be persecuted by the TPLF because he actively supported opponents of the TPLF when he lived in [Country 1] and before he became a [Occupation 1] for [Employer 1] in October 2004.
In order to accept the applicant would be persecuted in the future anywhere in Ethiopia for reasons of his political opinion, it would be necessary to accept the applicant is a credible and reliable witness.
The Tribunal does not accept the applicant is a credible and reliable witness. The applicant has admitted in evidence and in the written information he volunteered to the Tribunal, that he obtained by fraud the Prospective partner visa that enabled him to enter and remain in Australia since June 2012.
The applicant admits that he dishonestly entered into an agreement with [Ms C] who lives in Australia, and who is the [relative] of his then de facto partner, [Ms A] to enter into a sham marriage in Australia. According to the evidence, the purpose of the marriage was to enable the applicant and his de facto partner and their son, [Child B], to leave [Country 1] for a better life in Australia. This arrangement was on the applicant’s own admissions an dishonest agreement to obtain the Prospective partner visa.
The applicant represented his de facto partner as a relative and used a false guardianship relationship to hide that fact that [Child B] is their son. Put another way, the applicant dishonestly hid the nature of his relationship to his de facto partner, the mother of their son, and that [Child B] is his son for the purpose of advancing his prospects of being granted the Prospective partner visa and entry to Australia.
To hide that [Child B] is his son, the applicant dishonestly used documentation that established that a deceased woman was the mother of his son. He used the documentation relating to the deceased woman to obtain a baptismal certificate that falsely recorded that the deceased woman is the mother of his son [Child B]. According to a false baptism certificate, the mother of [Child B] is [Ms D].
To further the unlawful agreement to defraud the Commonwealth, the applicant married [Ms C] in Australia three days after his arrival with his then de facto partner and their son who was born during the course of their longstanding relationship in [Country 1].
Based on the applicant’s own evidence and the documentation he provided to the Department and the Tribunal, including the false baptismal certificate, the applicant planned and entered into a sophisticated and dishonest agreement to achieve a favourable visa outcome.
Notwithstanding the applicant’s admissions about entering into a dishonest plan for the purpose of living in Australia, after considering the applicant’s admissions, and the evidence as a whole in conjunction with the written information the applicant provided to the Department and Tribunal, the Tribunal is not satisfied the applicant is a truthful and accurate witness in this proceeding. To the contrary the evidence demonstrates the applicant is willing to tell lies and to sustain them in a complex scheme for the purpose of obtaining a visa that would permit him to remain in Australia.
On balance, the Tribunal is not satisfied the applicant opposed the TPLF in Ethiopia or while he resided in [Country 1], or anywhere else, or that he has a profile as a political activist of any persuasion whatsoever in Ethiopia.
Moreover, the evidence before the Tribunal is insufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be persecuted anywhere in Ethiopia for reasons of his political opinions if he were returned to Ethiopia now or in the reasonably foreseeable future.
Nevertheless, the Tribunal turns to consider whether the applicant faces a real chance of persecution as a failed asylum seeker upon being returned to Ethiopia for reasons of his ethnicity. In considering this issue the Tribunal has considered the DFAT country information report, the UNHCR position report dated March 2022 on returns to Ethiopia and the country information referred to in submissions provided to the Tribunal by the applicant’s legal representative.
It is a matter of common knowledge, and the country information demonstrates, that the TPLF and its allies and the armed forces of the Federal government of Ethiopia are enmeshed in a civil war that started about November 2020. The Federal military forces have imposed a communications blackout on Tigray.
Federal forces have also imposed a general blockade of the Tigray region and that starvation is a serious concern. Only limited humanitarian food relief has been able to enter Tigray. Atrocities have been committed by all parties to the conflict.
According to the country information before the Tribunal, Tigrayans in Addis Ababa and Tigrayans returning to Addis Ababa from such places as Saudi Arabia during the present conflict have been detained and many are facing an uncertain future since being taken into detention. More generally the country information demonstrates there have been mass arrests of Tigrayans in Addis Ababa, the city to which the applicant would be returned from Australia by commercial aircraft.
If returned to Ethiopia the applicant would be a person unknown to the authorities, having lived in and left Ethiopia illegally and from a provincial town when he was [age] years of age. He is now [age] years of age. The applicant does not have an Ethiopian passport or current identity documents. There would be no record of his departure from Ethiopia. The Tribunal having accepted the applicant departed Ethiopia illegally when he was [age] years of age, also accepts that the applicant has been absent from Ethiopia for a little more than 30 years. He is Tigrayan and an unknown quantity to the security services who are on high alert in the current circumstances in which the Federal authorities are on a war footing, and Tigrayans are viewed as enemies of the state or a potential threat to state security.
Considering the current state of civil war in Ethiopia between the Federal government and the TPLF, the country information about atrocities committed on Tigrayan civilians, the treatment of Tigrayans in Addis Ababa, and Ethiopia more generally, it is reasonable to form the view that the applicant would be at risk of harm upon his forced removal to Ethiopia. This risk would be amplified in the case of the applicant, due to him being absent from Ethiopia for such a long period, and that he is likely to he be unknown during the last thirty years to the Federal authorities’ records systems.
The applicant would return after an absence of a little more than 30 years, without a passport, current or recently current identity documents, a work profile or political profile capable of verification by the Federal security apparatus who would process the applicant upon his return as a failed asylum seeker.
Having considered the evidence and country information as a whole, the applicant’s particular personal circumstances in the context of the present enmity between the TPLF and by extension Tigrayans and the Federal government, notwithstanding the Tribunal’s view that the applicant is willing to dishonestly manipulate the migration laws of Australia and the facts, for the purpose of obtaining a visa to remain in Australia, the Tribunal is satisfied of the existence of a real chance the applicant would be subjected to serious harm for reasons of his ethnicity.
FINDINGS
Having considered the applicant’s claims individually and cumulatively together with the evidence and country information, the Tribunal is satisfied the evidence is sufficient to establish to the satisfaction of the Tribunal, the existence of a real chance that the applicant would be subjected to serious harm for reasons of his ethnicity, if he is removed to Ethiopia now or in the reasonably foreseeable future.
Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for a reason specified in s 5J(1) of the Act, namely race. Accordingly, the Tribunal is satisfied the applicant meets the definition of refugee set out in s 5H of the Act.
The applicant’s representative conceded that no persons are claiming in this review to be members of the same family unit as the applicant.
The applicant’s de facto partner and his children, one of whom was born in Australia, have not claimed in this review to be entitled to an Australian visa on the basis of being members of the same family unit as the applicant.
The applicant accepted that once the Tribunal makes a decision in this review, it would have no jurisdiction to make a decision in relation to the applicant’s second review application, being the review application the subject of Tribunal case file number 1912291, because the Tribunal has no jurisdiction to review the same visa decision twice.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Serious non-political crime
Even if a person meets the elements of the refugee definition in s 5H(1), he or she may not meet the criterion in s 36(2)(a) because of the operation of s 5H(2).
Section 5H(2) provides that s 5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations. However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine s 5H(2) issues: ss 411(1)(c) and (d).
The Tribunal is satisfied that the applicant is a refugee as defined in s 5H(1).
The Tribunal notes that the material before it may give rise to issues relating to s 5H(2). The Migration and Refugee Division of this Tribunal, in considering an application for review of a decision to refuse or cancel a Protection visa, has no power to determine s 5H(2) issues. As the Tribunal is satisfied that the applicant is a refugee as defined in s 5H(1), the matter will be remitted to the Department for reconsideration, including consideration as to whether s 5H(1) does not apply in this instance, because of the application of s 5H(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a).
Notation to decision
The Tribunal notes s 5H(2) of the Act may have application in this case.
Peter Haag
Member

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

[2022] AATA 2506

31 May 2022

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