1914106 (Refugee)

1914106 (Refugee) [2022] AATA 4807 (18 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs on 30 May 2019 to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Lara Conlan, solicitor
CASE NUMBER:  1914106
COUNTRY OF REFERENCE:                   Eritrea
MEMBER:Kate Chapple
DATE:18 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.

Statement made on 18 October 2022 at 8:16am
CATCHWORDS
REFUGEE – protection visa – Eritrea – political opinion – member of Eritrean Democratic Party (EDP) – underground Eritrean opposition movement – anti-regime activities – particular social group – Eritrean citizens forcibly returned to Eritrea – shared contents of sensitive government documents – arrest of son and EDP colleague – incidences of arbitrary arrest and detention – mental health condition due to trauma – limited mental health support available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 425 499
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
DECISION ON THE PAPERS

Pursuant to s 425(1) of the Act, the Tribunal wrote to the applicant’s representative inviting the applicant to attend a hearing on 17 October 2022 and to provide pre-hearing submissions.
On 10 and 11 October 2022, the applicant’s representative provided pre-hearing submissions and supporting documents to the Tribunal.
The Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it, and in such circumstances s 425(3) of the Act provides that the applicant is not entitled to appear before the Tribunal.
The Tribunal wrote to the applicant’s representative on 13 October 2022 advising the applicant that she was no longer required to attend the scheduled hearing and that the hearing had been cancelled.
This is a record of the Tribunal’s decision on the papers.
MATERIAL BEFORE THE TRIBUNAL
The following (copied) material is before the Tribunal:
6.1.Applicant’s protection visa application dated 4 May 2018.
6.2.Applicant’s Certificate of Birth issued [on] 18 August 2017.
6.3.Letter from the People’s Front for Democracy and Justice dated [in] September 2017.
6.4.Letter from the Eritrean Democratic Party dated [in] March 2018.
6.5.Applicant’s Eritrean passport issued [in] 2017 (expiry [in] 2022).
6.6.Statutory Declaration by applicant dated 17 May 2019 regarding the loss of her passport.
6.7.Departmental interview audio file.
6.8.Departmental case file.
6.9.Internal departmental records relating to the applicant.
6.10.Decision record dated 30 May 2019 relating to the delegate’s decision.
6.11.Applicant’s review application dated 4 June 2019.
6.12.[psychological] report dated 16 May 2022 (‘May 2022 psychological report’).
6.13.Submission by applicant’s representative dated 10 October 2022 (‘representative’s October 2022 submission’).
6.14.Applicant’s statutory declaration dated 11 October 2022 (‘applicant’s October 2022 statutory declaration’).
APPLICANT’S PROTECTION CLAIMS
Based on the material before the Tribunal, the applicant’s protection claims are summarised as follows:
7.1.The applicant is a citizen of Eritrea.
7.2.To comply with her national service obligation, the applicant served as an Eritrean soldier from 1977 to 1991, and fought in the war of independence that ended in 1991. Her husband was killed in the war. Her war experiences have left her deeply traumatised.
7.3.From 1994 to 2017, the applicant worked for the Eritrean ruling party, the People’s Front for Democracy and Justice (PFDJ) as an [Occupation 1] in [Department 1]. She held a position of trust, responsible for managing staff and expenses, [with access to] highly sensitive documents relating to the [government], and, with only her superior, had access to the locked filing cabinet where sensitive documents were stored.
7.4.Having fought for democracy though the war of independence, the applicant was hopeful that the new independent Eritrea would have good leadership, however it soon became a dictatorship. She and a colleague had worked closely together for the PFDJ since 1994. Over time, it became apparent to the applicant that the colleague, like her, was increasingly frustrated with the regime until he revealed that he was a member of the secretive, underground Eritrean opposition movement, the Eritrean Democratic Party (EDP). The colleague asked the applicant to help the EDP by sharing information about the location and contents of sensitive government documents, and from time to time, providing copies. The applicant agreed to help because she opposed the undemocratic and oppressive government. In 2006, she became a member of the EDP and worked covertly for the movement until she left Eritrea in 2017.
7.5.The applicant travelled on a visitor visa to Australia in December 2017 to visit her older son, an Australian citizen, and his family and to attend her grandchild’s christening. At that time, she did not intend to seek asylum.
7.6.In February 2018, two months after the applicant’s arrival in Australia, her daughter-in-law told the applicant that police had come looking for her at their home in Eritrea and arrested the applicant’s younger son. The applicant contacted her cousin in [Country 1] to see if he could connect her with someone who could provide information about what had happened to her younger son. The cousin put the applicant in touch with a senior member of the EDP in the United Kingdom who told her that her PFDJ colleague had been arrested and, when police searched his house for documents, they found a list of names, which included the applicant’s name. Based on her knowledge of what happens to people when they are arrested in Eritrea, the applicant believes the colleague will have been tortured.
7.7.Following her colleague’s arrest, the applicant believes the police then came to arrest her, but when told she was in Australia, they arrested her younger son instead. She has limited detail about her younger son as she only occasionally speaks to her daughter-in-law in Eritrea due to poor phone connectivity. She understands that he was never charged, but served a [prison] sentence, then was conscripted to the army.
7.8.After learning of the circumstances of her colleague’s arrest and subsequently her younger son’s arrest, the applicant believed that it was too dangerous to return to Eritrea, so applied for protection in May 2018.
7.9.Aware of the files kept by the Eritrean [Department 1], the applicant believes that following the arrests of her colleague and younger son, she will be wanted by authorities for her connections with the EDP and anti-regime activities and they will have a file on her. She is also well-known within the PFDJ. She believes that if she is returned to Eritrea, she will be arrested at the airport. She fears she will be indefinitely detained, persecuted, harmed, raped or killed.
7.10.The applicant believes that, as a woman, if detained in Eritrea, it is common knowledge she would be sexually assaulted while in detention.
7.11.The applicant has been diagnosed in Australia with Post Traumatic Stress Disorder, anxiety and depression. She believes that if she is returned to Eritrea, there are no counselling services or resources to help people with mental health conditions, and without help her mental health would deteriorate rapidly.
7.12.The applicant believes that if she is returned to Eritrea, she cannot live anywhere safely as the Eritrean government controls the country through the deployment of military personnel who monitor and arrest individuals suspected of anti-government activities.
7.13.The applicant believes there is no protection available to her from the Eritrean authorities because she believes it is the Eritrean authorities that would persecute her.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s October 2022 statutory declaration
The Tribunal considers the claims and evidence set out in the applicant’s October 2022 statutory declaration to be comprehensive, consistent, and highly credible.
The Tribunal considers the applicant’s October 2022 statutory declaration satisfactorily explains and clarifies earlier statements made by the applicant in her protection visa application and departmental interview.
The Tribunal accepts the applicant’s evidence given in support of her protection claims, in particular the evidence substantiating that:
10.1.The applicant was a long-serving soldier in the Eritrean army during the country’s war of independence.
10.2.After Eritrea became an independent state, the applicant worked as an [Occupation 1] for the PFDJ until 2017 when she departed for Australia.
10.3.The applicant was employed in a position of trust with the PFDJ and had access to sensitive government documents.
10.4.The applicant became opposed to the PFDJ regime due to its increasingly oppressive and undemocratic rule.
10.5.Over some years, the applicant became closely associated with a colleague who also worked for the PFDJ. He shared her opposition to the PDFJ and revealed to her that he was a member of the EDP.
10.6.The applicant became a member of the EDP in 2006 and, until 2017 when she departed for Australia, worked covertly for the EDP movement using her position as [Occupation 1] for the PFDJ to access, copy and share sensitive government information and documents for use by the EDP movement in its opposition of the PFDJ, with her colleague acting as the conduit for the information and documents.
10.7.The applicant’s colleague was arrested in early 2018 and on searching his house Eritrean authorities found information indicating a connection between the applicant and the EDP.
10.8.Following the colleague’s arrest, Eritrean authorities looked for the applicant at her younger son’s house, and when told she had gone to Australia, arrested her younger son.
10.9.The applicant has no reliable information about the current whereabouts or wellbeing of her younger son.
10.10.The applicant did not intend to apply for protection when she first came to Australia in December 2017.
10.11.After travelling to Australia, the applicant became aware of her younger son’s arrest through his wife (her daughter-in-law). She subsequently learned of the circumstances of her colleague’s and younger son’s arrests through her cousin in [Country 1] and a contact the cousin had in the EDP.
10.12.The applicant applied for protection in May 2018 after she became aware of the circumstances of her colleague’s and younger son’s arrests.
10.13.The applicant fears being targeted and harmed if she is returned to Eritrea as a person well-known to the PFDJ who has connections with and worked for the opposition movement, EDP, and as a person forcibly returned to Eritrea.
10.14.The applicant fears additional harm if she is returned to Eritrea as a woman and as a person with mental health conditions.
Country information
The Tribunal has considered the country information set out in Attachment B and notes the following information in particular in light of the applicant’s claims and evidence:
11.1.A thirty-year armed conflict for independence from Ethiopia ended in 1991 with the Eritrean People’s Liberation Front (EPLF) capturing the Eritrean capital, Asmara. Following the UN-supervised referendum in 1993, Eritrea became an independent state. The EPLF transformed into a political party, the People’s Front for Democracy and Justice (PFDJ), which led the transitional government installed for a term of four years. The transitional government remains in power and Eritrea has not had a national or presidential election since independence.
11.2.Tensions over the lack of an officially demarcated border between Ethiopia and Eritrea led to a renewed outbreak of fighting between 1998 and 2000. Ethiopia refused to recognise the UN Commission-declared common border in 2002 and continues to occupy territory officially granted to Eritrea. Following the border war, an increasingly autocratic style of government developed in Eritrea. Since 2001, public and private criticism of the government has been repressed, with large numbers of Eritreans arrested and detained. Eritrea’s relationship with the international community deteriorated considerably, North American and European peacekeepers were expelled, most international NGOs and civil society organisations were forced to abandon their operations, and large number of Eritreans left the country, most seeking asylum in Europe.
11.3.Eritrea ratified a Constitution in 1997 including human rights protections, however it is widely accepted that it has never been implemented, and Eritrea has rejected calls from the international community to do so.
11.4.The UN Commission of Inquiry reported in 2015 (corroborated by the US State Department) that national service conscripts were systematically subjected to intentional punishment and ill-treatment aimed at inflicting severe pain, which in many cases constituted torture. It has also been widely reported that many conscripts have been compelled to serve indefinitely.
11.5.DFAT assessed in 2017 that it was not possible to participate in a civil society organisation in Eritrea other than the three government-controlled organisations. Any Eritrean attempting to do so would face a high risk of arrest and imprisonment.
11.6.The PFDJ is the only legal political party in Eritrea and operates at all levels of the administration, allowing the party to control administrative structures throughout the entire country. There are no other legally approved opposition groups or other organisations independent of the PFDJ. While there is virtually no organised underground opposition within Eritrea, there are several ethnic rebel groups based in Ethiopia and diaspora civil society organisations that focus primarily on promoting human rights. Although political opposition to the PFDJ is almost entirely based within the diaspora, including a significant presence in Ethiopia, there is no ‘Government in Exile’ or alternative administration that commands popular support among diaspora Eritreans.
11.7.In May 2001, a group of high-ranking ex-combatants referred to as the G-15 published an open letter to the government setting out various demands, including a call for greater democracy. In response, a wave of imprisonments took place over a two-day period in September 2001. The 11 G-15 members who were in Eritrea at the time were detained, along with several journalists and other government critics. No criminal proceedings were ever initiated against those detained, and the government has never confirmed their location. Although at least 9 of the 11 G-15 members were believed to have died, Foreign Minister Osman Saleh said in June 2016 that all of the detainees were alive and would be tried when the government decided.
11.8.DFAT assessed in 2017 that anyone who attempted to openly oppose the government politically while in Eritrea, particularly through participating in an organised protest or engaging in other types of political activity (including online), would face a high risk of official discrimination, including possible arrest and imprisonment.
11.9.DFAT assessed in 2017 that women in Eritrea are generally able to access education, employment opportunities and most other areas of life without significant barrier. However, they face a high risk of violence, particularly female genital mutilation, regardless of socio-economic or religious background. Women performing the military component of their national service face a high risk of sexual assault.
11.10.The UN Commission of Inquiry reported in 2015 that Eritrean authorities have carried out extrajudicial executions, publicly or secretly, to punish perceived critics, and that a culture of impunity existed. It also reported that enforced disappearance was a widespread and systematically employed practice in Eritrea, and that information on the whereabouts of and charges against those detained was rarely provided officially. Detainees were usually not brought before a court and were outside the protection of the law. Prison authorities generally informed relatives enquiring after detainees that they had no information on the person arrested, and warned them to cease their enquiries or risk facing a similar fate. Consistent with this report, the US State Department reported that an unknown number of persons disappeared during 2015, and were believed to be in government detention or to have died in custody. Disappeared persons included those detained for political or religious beliefs, journalists, individuals suspected of evading national service and militia duties, and persons with no known charge against them. Freedom House reported that arbitrary arrest and disappearances were common.
11.11.The UN Commission of Inquiry reported in 2015 that Eritrean officials had used a variety of forms of ill-treatment intended to inflict physical and psychological pain during interrogations or as a means of punishing detainees. These included extreme forms of restraint, beatings or rape. The purpose of these acts was to extract confessions and information, and to punish, intimidate and coerce detainees and conscripts. DFAT assessed in 2017 that these forms of ill-treatment may amount to torture. Groups at a high risk of torture may include political prisoners, practitioners of unauthorised religions, and deserters from national service. DFAT further assessed that those committing the torture are likely to enjoy general impunity.
11.12.The UN Commission of Inquiry reported in 2015 that the government had established a system by which an extraordinary number of individuals had the power to spy on Eritreans, both within Eritrea and in the diaspora, and to conduct investigations and arrests, often without observing the law.
11.13.In practice, written laws have played a limited role in the Eritrean justice system. More significant have been proclamations and the issuing of new legislation by decree by the president or relevant ministries, with these entering into force without parliamentary consent. Extrajudicial prison sentences are meted out by secret committees on a regular basis.
11.14.The UN Commission of Inquiry reported in 2015 that the detention network in Eritrea is vast, including many secret and unofficial facilities, and not subject to judicial review. Detainees are kept in a variety of facilities, including makeshift and open-air camps, converted old buildings, metal containers (some of which are buried underground), and in caves and holes. The practice of incommunicado detention is widespread and can last for years. Solitary confinement and forced labour are reportedly common practices. Detainees are subjected to poor hygiene, nutrition and cell conditions and lack of medical care.
11.15.The government maintains tight control over movement within Eritrea. The US State Department reported in 2015 that citizens are required to notify authorities when they change residence. DFAT assessed in 2017 that internal relocation would not be a realistic option within Eritrea for those people at risk of official discrimination.
11.16.The 2022 UN Special Rapporteur report confirmed that a number of the issues referred to in the 2015 UN Commission of Inquiry report and the 2017 DFAT report regarding the rule of law, detention, silencing of dissent and Eritrean asylum seekers were ongoing.
11.17.The UN Commission of Inquiry also reported in 2015 that, with a few exceptions, those forced to return to Eritrea were arrested, detained and subjected to ill-treatment and torture.
11.18.The European Asylum Support Office reported in 2019 that upon arrival at Asmara International Airport, the Eritrean immigration authorities usually screen and profile returning Eritreans, and sometimes, the officers have information on searched returnees. If the authorities are suspicious of a person, interrogations may follow. Some persons are arrested and brought to a police station or prison in Amara. Anecdotal accounts describe that most returnees were put in an underground prison near Tesseney for screening and profiling, where torture reportedly occurs. Elderly returned from Sudan were sent to the military or enlisted in the People’s Army.

There is no evidence before the Tribunal that is inconsistent with the country information.
The Tribunal considers that the applicant’s claims and evidence and supporting material are consistent with the country information.
May 2022 psychological report
The Tribunal accepts the May 2022 psychological report, in particular the observation that the applicant presented with significant psychological symptoms consistent with Post Traumatic Stress Disorder, anxiety and depression, being an exacerbation of mental health symptoms due to trauma related to war experience and visa uncertainty.
Representative’s October 2022 submission
The Tribunal has considered the representative’s October 2022 submission and accepts the following in support of the applicant’s claims and evidence:
15.1.The reasoning provided by way of explanation or clarification of the applicant’s previous statements in her protection visa application and departmental interview.
15.2.The country information that is either identical to or additional and consistent with the country information referenced and considered by the Tribunal. In particular, the Tribunal notes the extracts from the 2020 Human Rights Watch report on Eritrea regarding arbitrary arrest and detention and the treatment of Eritreans who are forcibly returned to Eritrea.
15.3.The additional country information, in particular the extract from the 2005 article by Plaut published in the Review of African Political Economy regarding the origins of the EDP; and the extract from the 2015 NOREF Expert Analysis regarding the aims of the EDP movement and confirmation that those who are PFDJ dissidents are generally part of the EDP.
15.4.The additional country information contained in the 2017 article by Amahazion published in the Journal of Global Health regarding the limited mental health support available in Eritrea and the stigma and isolation experienced by Eritreans suffering mental illness, which also serves as a barrier to seeking treatment.
Other considerations
In considering the claims and evidence, the Tribunal has also taken account of:
16.1.The Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’.
16.2.The Tribunal’s Migration and Refugee Division Guidelines on the Assessment of Credibility.
Findings of fact
Based on the consideration of claims and evidence and supporting material set out above, and taking into account the country information and other considerations, the Tribunal finds that:
17.1.The applicant is a citizen of Eritrea.
17.2.The applicant has no right to enter or reside in, temporarily or permanently, any other country.
17.3.While occupying a position of seniority and trust as an [Occupation 1] for the PFDJ-led Eritrean government over a long period in Eritrea, the applicant became a member of the EDP and participated in activities that assisted the EDP movement in its opposition of the PFDJ-led Eritrean government.
17.4.Following the arrest by Eritrean authorities of the applicant’s colleague and fellow EDP member in Eritrea soon after the applicant travelled to Australia, the applicant’s connections with the EDP became known to Eritrean authorities and her younger son was also arrested by Eritrean authorities.
17.5.If returned to Eritrea, the applicant fears being targeted and harmed by Eritrean authorities for her membership of the EDP and her participation in activities that assisted the EDP movement in its opposition of the PFDJ-led Eritrean government, and for being forcibly returned to Eritrea. The applicant’s fears are heightened due to her being a woman and a person with pre-existing mental health conditions.
17.6.If returned to Eritrea, there is a real or substantial chance that upon or within the reasonably foreseeable future of the applicant’s return that:
17.6.1.The applicant would be screened and profiled by Eritrean authorities and identified as a person who has been forcibly returned to Eritrea.
17.6.2.The applicant would be screened and profiled by Eritrean authorities and identified as the person whose colleague and fellow EDP member was arrested by Eritrean authorities and whose younger son was subsequently arrested, and as a person who has connections with the EDP.
17.6.3.The applicant would, following screening and profiling, be arrested without charge, detained and interrogated about her failure to return to her employment with the PFDJ-led Eritrean government, her connections with the EDP, and subjected to physical and psychological pain that may include torture – such as extreme forms of restraint, beatings and rape, and over-crowded and unhygienic prison conditions with limited or no access to medical care – in order to extract a confession or information and to punish, intimidate or coerce. Such pain would be exacerbated by the applicant being a woman and a person with pre-existing mental health conditions.
17.6.4.The applicant would be killed or subjected to indefinite detention or enforced disappearance as a result of her connections with the EDP, and the pain occasioned by indefinite detention or enforced disappearance would be exacerbated by the applicant being a woman and a person with pre-existing mental health conditions.
17.6.5.The applicant’s whereabouts in Eritrea would be monitored and controlled by Eritrean authorities so that the applicant would be unable to avoid being targeted and harmed by Eritrean authorities.
17.7.If returned to Eritrea, there would be no protection available to the applicant from Eritrean authorities as they would be the perpetrators of the targeting and harm and no legal protection or judicial review would be available to the applicant. Further, there would be no protection available to the applicant from the only civil society organisations in Eritrea as they are controlled by the PFDJ-led Eritrean government. Any family members in Eritrea who sought to protect the applicant from targeting and harm would be at risk themselves of being subjected to ill-treatment by Eritrean authorities.
17.8.If returned to Eritrea, the applicant would be unable to modify her behaviour to avoid being targeted and harmed by Eritrean authorities as her vulnerability to targeting and harm relates to her forced return and her existing connections with the EDP, which are already known to Eritrean authorities.
Application of law
Based on the findings of fact:
18.1.The applicant is a non-citizen in Australia.
18.2.The applicant fears being persecuted for reasons of her political opinion and her membership of a particular social group, being Eritrean citizens forcibly returned to Eritrea, such reasons being the essential and significant reasons for the persecution.
18.3.There is a real chance that, if the applicant returned to Eritrea, she would be persecuted for these reasons.
18.4.The persecution would involve serious harm to the applicant and systematic and discriminatory conduct towards the applicant by Eritrean authorities.
18.5.The real chance of persecution of the applicant relates to all areas of Eritrea.
18.6.There are no effective protection measures available to the applicant in Eritrea.
18.7.The applicant could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Eritrea.
18.8.The applicant has a well-founded fear of persecution as defined in s 5J of the Act.
18.9.The applicant is outside Eritrea, her country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail herself of the protection of Eritrea.
18.10.The applicant is a refugee as defined by s 5H(1)(a) of the Act.
CONCLUSIONS
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
decision
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Act.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA.
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).
Relevant extracts 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.
ATTACHMENT B
Relevant Country Information
DFAT Country Information Report Eritrea 8 February 2017
History
2.2 A number of Eritrean groups responded by commenced an armed struggle for independence, which lasted 30 years and cost the lives of approximately 65,000 Eritrean soldiers and 50,000 civilians. Over the course of the conflict a Marxist-inspired group, the Eritrean People’s Liberation Front (EPLF), gradually sidelined its rivals. The EPLF captured the Eritrean capital Asmara in May 1991, ending the conflict. 99.8 per cent of Eritreans voted for independence in a UN-supervised referendum in 1993, and Eritrea became an independent state later in the same year. The EPLF transformed into a political party, the People’s Front for Democracy and Justice (PFDJ), led by Isaias Afwerki, who became the country’s first (and, to date, only) President.
2.3The post-independence relationship with Ethiopia began well. However, tensions over the lack of an officially demarcated border led to a renewed outbreak of fighting from May 1998 to June 2000 that killed between 70,000-100,000 Eritreans and Ethiopians. Although a UN Commission declared the demarcation of the common border in April 2002, Ethiopia refused to recognise it and continues to occupy territory officially granted to Eritrea. Eritrea has long sought international support for its calls for Ethiopia to implement the Commission’s decision. There have been no meaningful bilateral attempts to resolve the dispute, and small-scale skirmishes continue to occur regularly along the border.
2.4 The aftermath of the border war saw an increasingly autocratic style of government develop in Eritrea, with the government cracking down heavily on any form of internal dissent or criticism. Eritrea’s relationship with the international community also deteriorated considerably, with Eritrea expelling North American and European peacekeepers in 2005 and a number of UN staff in 2006. In 2009, the UN imposed sanctions on Eritrea for its alleged support for Islamist insurgents in Somalia, a charge Eritrea has denied (see ‘Sanctions’). Most international NGOs departed Eritrea from 2005-11, with the few remaining (primarily UN agencies) subject to tight restrictions on their movements and activities.
2.5 Large numbers of Eritreans have left the country in recent years, with most seeking asylum in Europe. Eritrea marked the 25-year anniversary of the end of the independence war in May 2016, with celebrations strongly attended by diaspora members from around the world.
Political system
2.23 Eritrea is a presidential republic. President Isaias Afwerki is Head of both State and Government, and has been so since independence in 1993. Following the UN-supervised popular referendum that delivered independence, a transitional government took power composed of executive, legislative and judicial branches (see also ‘Judiciary’). Proclamation 37/1993 outlined the principles of operation of the transitional government and limited its term to four years. However, the transitional government remains in power. Eritrea has not had a national or presidential election since independence. In its response to recommendations made in the Universal Periodic Review’s Working Group in August 2014, Eritrea rejected calls by a number of countries to allow internationally monitored multi-party elections.
Human rights
2.27 Eritrea ratified a Constitution in 1997 that includes numerous human rights protections. However, it is widely accepted that the 1997 Constitution has never been implemented, due in part to it lacking an entry into force clause, and to the disruption caused by the 1998-2000 border war with Ethiopia. In its response to recommendations made in the Universal Periodic Review’s Working Group in August 2014, Eritrea rejected calls from a number of countries to take measures to implement the 1997 Constitution.
National service
3.15 The government requires all physically- and mentally-capable men and women between the ages of 18-70 to perform a full-time national service obligation, which may include a military, development or civil service component. Eritreans are allocated to their national service role based on examination results rather than by choice. All Eritreans are required to undergo some military training, regardless of their national service role. DFAT understands that those serving as priests or imams in recognised religions may be exempt from national service obligations.
NGOs/civil society organisations
3.23 In 2005, Eritrea passed a law (Proclamation 145/2005) severely restricting the activities of international NGOs in Eritrea on the ground that their activities hampered the self-reliance of the population and led to greater dependency. Most international NGOs left Eritrea as a result, with almost all of those remaining ordered to leave in 2011. The few remaining international organisations, primarily UN agencies, are subject to tight restrictions on their activities and movements. Some international NGOs have recently returned to Eritrea, and there has been movement towards the return of others. Those international NGOs that have continued to operate in Eritrea have done so through working closely with the government on priority areas, such as education, water, sanitation and health, and through keeping a low public profile.
3.24 Three mass organisations dominate civil society in Eritrea: the National Union of Eritrean Women (NUEW); the National Confederation of Eritrean Workers (NCEW); and the National Union of Eritrean Youth and Students (NUEYS). All three organisations were established during the independence struggle, and are government-controlled. All seek to advance Eritrea through developing human capacity and skills, and by promoting national goals and values. Membership of the three organisations is open to all Eritreans fitting the profile (the NCEW is for women aged 16 and up; the NUEYS accepts Eritreans up to the age of 40) and is voluntary in nature. All three organisations hold elections for their office-bearers from the village level upwards, and have done so regularly. Virtually all of the other civil society organisations and NGOs established in Eritrea after independence have been forced to abandon their operations. DFAT is not aware of any that are currently active within Eritrea.
3.25 DFAT assesses that it is not currently possible to participate in a civil society organisation in Eritrea other than one of the three mass organisations. Any Eritrean attempting to establish a new organisation or to run civil society activities independently of the three mass organisations would face a high risk of arrest and imprisonment.
Critics of the government
3.26 The PFDJ is the only legal political party in Eritrea and operates at all levels of the administration, allowing the party to control administrative structures throughout the entire country. There are no other legally approved opposition groups or other organisations independent of the PFDJ. The government has emphasised on many occasions that a multi-party system is inconceivable in Eritrea, arguing it would encourage tribalism and the risk of ethnic violence. While there is virtually no organised underground opposition within Eritrea, there are several ethnic rebel groups based in Ethiopia and diaspora civil society organisations that focus primarily on promoting human rights. Although political opposition to the PFDJ is almost entirely based within the diaspora, including a significant presence in Ethiopia, there is no ‘Government in Exile’ or alternative administration that commands popular support among diaspora Eritreans.
3.27 Until the outbreak of the border war with Ethiopia in 1998, newly independent Eritrea enjoyed a political climate far freer than the present. However the government’s actions during and after the border war and an increasingly autocratic style of leadership led to growing criticism. Since 2001, public and private criticism of the government has been repressed, with large numbers of Eritreans arrested and detained. While the exact number of political prisoners is unknown, in 2013 the UN High Commissioner for Human Rights reported that there were between 5,000 and 10,000 political prisoners and prisoners of conscience in Eritrea. Those imprisoned reportedly include former politicians, journalists, and adherents of unrecognised religions. The government has justified the lack of civil liberties in Eritrea under emergency measures due to the ‘no war, no peace’ situation following the border war with Ethiopia.
3.28 In May 2001, a group of high-ranking ex-combatants referred to as the G-15 published an open letter to the government setting out various demands, including a call for greater democracy. In response, a wave of imprisonments took place over a two-day period in September 2001. The 11 G-15 members who were in Eritrea at the time were detained, along with several journalists and other government critics. No criminal proceedings were ever initiated against those detained, and the government has never confirmed their location. Although at least nine of the 11 imprisoned G-15 members were believed to have died, Foreign Minister Osman Saleh said in June 2016 that all of the detainees were alive and would be tried when the government decided.
3.32 DFAT assesses that that anyone who attempted to openly oppose the government politically while in Eritrea, particularly through participating in an organised protest or engaging in other types of political activity (including online), would face a high risk of official discrimination, including possible arrest and imprisonment. DFAT further assesses that while Eritreans can express concern about the migration crisis and/or difficult economic situation, they would be unlikely to be able to blame either on the government or on the president without attracting official interest and sanction.
Women
3.46 DFAT assesses that women in Eritrea are generally able to access education, employment opportunities and most other areas of life without significant barrier. However, their ability to do so may be reduced in rural and more traditional areas. DFAT further assesses that women in Eritrea face a high risk of violence, particularly experiencing FGM, regardless of socio-economic or religious background. Women performing the military component of their national service face a high risk of sexual assault.
Extra-judicial killings
4.1 In its June 2015 report, the UN Commission of Inquiry found that extrajudicial executions and arbitrary killings had been widely perpetrated in Eritrea since independence. The report found that Eritrean authorities have carried out extrajudicial executions, publicly or secretly, to punish perceived critics, as well as suspected smugglers and ordinary citizens for arbitrary reasons. The UN Commission of Inquiry report noted that some of the extrajudicial killings and executions reported may have resulted from personal initiatives or excessive use of force by officials, and that a culture of impunity existed. The UN Commission of Inquiry expressed concern that the general climate of impunity thus created was conducive to the continued practice of arbitrary and extrajudicial killings in Eritrea. Other international commentators, including the US State Department, Freedom House, and Amnesty International, have supported the UN Commission of Inquiry’s findings.
Enforced disappearances/arbitrary arrest and detention
4.4 The UN Commission of Inquiry reported in 2015 that scores of people had been subjected to enforced disappearance since independence in 1991, for known and unknown reasons. The report found that information on the whereabouts of and/or charges against those detained was rarely provided officially. Detainees were usually not brought before a court and thus placed outside the protection of the law. Prison authorities generally informed relatives enquiring after detainees that they had no information on the person arrested, and warned them to cease their enquiries or risk facing a similar fate. In certain cases, relatives may subsequently receive unofficial information from released inmates or from bribed guards, but in most cases they were prevented from visiting their detained relatives. The UN Commission of Inquiry report concluded that enforced disappearance was a widespread and systematically employed practice in Eritrea.
4.5 Other international commentators have supported the UN Commission of Inquiry’s findings. The US State Department reported that an unknown number of persons disappeared during 2015, and were believed to be in government detention or to have died in custody. Disappeared persons included those detained for political or religious beliefs, journalists, individuals suspected of evading national service and militia duties, and persons with no known charge against them. Freedom House reported that arbitrary arrest and disappearances were common.
Torture
4.12 The UN Commission of Inquiry reported in June 2015 that Eritrean officials had used a variety of forms of ill-treatment intended to inflict severe physical and psychological pain during interrogations or as a means of punishing detainees. These included extreme forms of restraint, beatings or rape. The purpose of these acts was to extract confessions and information, and to punish, intimidate and coerce detainees and conscripts. The UN Commission of Inquiry concluded that there was a deliberate policy to inflict torture in a routine manner during investigations and interrogations, as well as during national service, and perpetrators of torture enjoyed general impunity. In its preliminary response to the UN Commission of Inquiry report, the Eritrean government denied the allegations, noted the legal protections against torture, and stated that it was working on awareness programs and on upgrading the capacity and professionalism of its security personnel. Amnesty International, Freedom House and Human Rights Watch have also reported that torture was commonplace in Eritrea, and that many of the methods used caused long-lasting psychological and physical damage to the victims, or resulted in their death.
4.13 DFAT assesses that officials in Eritrea commonly use a variety of forms of ill-treatment of detainees during interrogations, or as a form of punishment, which may amount to torture. Groups at a high risk of tortured may include political prisoners, practitioners of unauthorised religions, and deserters from national service. DFAT further assesses that those committing the torture are likely to enjoy general impunity.
State-affiliated security bodies
5.1 There is little information available about the structure or size of Eritrea’s internal security system. The UN Commission of Inquiry reported in July 2015 that the government had established a system by which an extraordinary number of individuals had the power to spy on Eritreans, both within Eritrea and in the diaspora, and to conduct investigations and arrests, often without observing the law. Diplomatic sources in Asmara told DFAT that while there was not a particularly visible police or security presence on the ground; intelligence gathering was unquestionably being conducted. It was, however, impossible to say how widespread intelligence-gathering activities were, or whether they were more prevalent in Asmara and other cities than in other parts of the country.
Judiciary
5.7 The judiciary is officially divided into military courts, civil courts (including community courts, regional courts and the High Court) and a Special Court. All courts report to the Ministry of Justice. Eritrea has not yet established a Supreme Court, and the highest court in the land is currently the High Court. In 1996, Eritrea established a Special Court as a temporary measure to fight corruption, operated by the President’s Office with the help of the secret service, the army and the police. In practice, the Special Court has reportedly been used by the government to circumvent the formal justice system in political, administrative and criminal cases. Its judges, who are mostly high-ranking members of the military, are appointed directly by the president. Extrajudicial prison sentences are also meted out by secret committees on a regular basis. Due to the secretive and arbitrary nature of these proceedings, it is difficult to obtain information about them.
5.8 In practice, written laws have played a limited role in the Eritrean justice system. More significant have been proclamations and the issuing of new legislation by decree by the president or relevant ministries, with these entering into force without parliamentary consent. Further sources of law have included administrative acts, directives and orders published by ministries, other administrative bodies and the military, as well as personal interventions by the president.
Detention and prison
5.12 According to the UN Commission of Inquiry’s June 2015 report, the detention network in Eritrea is vast, includes many secret and unofficial facilities, and is not subject to judicial review. Detainees are kept in a variety of facilities, including makeshift and open-air camps, converted old buildings, metal containers (some of which are buried underground), and in caves and holes. The practice of incommunicado detention is widespread, and can last for several years. Solitary confinement and forced labour are reportedly common practices, with prisoners kept in extremely overcrowded cells characterised by poor hygienic conditions. Proper toilets are not available in cells, and detainees are sometimes forced to sleep in human waste overflowing from the insufficient containers provided for this purpose. Access to fresh air and natural light is extremely limited. Food rations are minimal and of poor nutritional quality. Drinking water is frequently unclean and limited in quantity, despite the high temperatures experienced in many detention locations. In addition, the absence of health facilities and the lack of medical care and medicines expose detainees to illnesses, epidemics and death.
International commentators, including Amnesty International, Human Rights Watch, Freedom House and the US State Department, concur that conditions of detention in Eritrea are extremely harsh.
Internal relocation
5.20 The government maintains tight control over movement within Eritrea, both for citizens and foreign nationals. According to the US State Department’s 2015 Human Rights Report, citizens are required to notify authorities when they change residence. When travelling within Eritrea, particularly in remote areas or near borders, citizens are required to provide justification for travel to authorities. DFAT assesses internal relocation would not be a realistic option within Eritrea for those people at risk of official discrimination.
Forced returnees
5.25…The UN Commission of Inquiry’s 2015 report found that, with a few exceptions, those forced to return to Eritrea were arrested, detained and subjected to ill-treatment and torture. The UN Commission of Inquiry reported that those voluntarily returning might also face arbitrary arrest, particularly if they were perceived as having associated with opposition movements abroad. UNHCR and human rights organisations such as Amnesty International have reported that they understand that those returning to Eritrea after having left illegally face arrest and imprisonment on return. In December 2015, the Eritrean government published a response to UNHCR’s eligibility guidelines in which they sought to repudiate claims that those returning (or being returned) to Eritrea were subject to ill-treatment.
5.26 The US State Department’s 2015 Human Rights Report found that Eritrean citizens residing abroad generally had the right to return to Eritrea, but needed to show proof that they had paid the 2 per cent RRT to be eligible for consular services and documents (see ‘Recovery and Reconstruction Tax’ and ‘Documentation’). Persons known to have broken laws abroad, contracted serious contagious diseases, or been declared ineligible for political asylum by other governments had their visas and visa requests looked at with greater scrutiny than others. An August 2016 UK Home Office report concluded that the act of having left the country illegally may not, on its own, result in punishment on return to Eritrea. The report found it more likely that the reason the person left the country – usually because they have evaded or absconded from national service – would be of interest to Eritrean authorities, not the fact that they had left the country without an exit visa.
European Asylum Support Office Country of Origin Information Report: Eritrea – national service, exit and return September 2019
…
Treatment of returnees
De facto, various factors are relevant for the way the Eritrean authorities treat returnees:
• the way of return: voluntarily or forced;
• the way of exit from Eritrea: legal or illegal;
• the year of exit from Eritrea (i.e. before or after independence, the border war with Ethiopia);
• payment of the 2 % tax and signing of Form 4/4.2;
• political activities abroad: none, pro-government, anti-government;
• their national service status prior to their exit from Eritrea;
• duration of stay in Eritrea: short-term visitor or permanent returnee;
• personal contacts in the responsible authorities;
• arbitrariness.
…
Follow-up upon arrival
Upon arrival at Asmara International Airport, the Eritrean immigration authorities usually screen and profile returning Eritreans. The screening includes checks on which Eritrean and foreign identity documents they have, if they have paid the 2 % tax and – if applicable – signed the Form 4/4.2. Sometimes, the officers have information on searched returnees. However, these procedures are inconsistent. When travelling with an Eritrean passport, the immigration authorities can easily spot a person who has previously left the country illegally, since such a person lacks an exit stamp in the passport. If the authorities are suspicious of a person, interrogations may follow. Possible reasons are incomplete documents (such as lacking an Eritrean ID card) or non-payment of the 2 % tax.
Some persons are arrested and brought to a police station or prison in downtown Asmara. According to some sources, this can happen if a returnee has not signed the Form 4/4.2 despite being required to do so. Also anti-government political activities abroad can have this consequence, as snitches in the diaspora countries are reportedly informing the authorities in Eritrea about such activities.
…
Forced return
The Eritrean government opposes any forced return of its citizens. However, a Ministry of Foreign Affairs official told a delegation from the United Kingdom in 2016 that their policy was ‘to prefer voluntary returns. But if a host country decides to repatriate them by force, we will accept them. But we should negotiate this first.’ Eritrea’s President Isaias Afewerki has criticised the countries, which send migrants back to Eritrea, for not supporting the returnees adequately. Isaias mentioned Israel’s policy of giving deportees USD 3 500 and said USD 50 000 would be more appropriate.
Sporadic incidents of forced returns to Eritrea are recorded, mostly across the land borders. Between 2016 and 2019, they occurred rather seldomly. Forced returns prior to 2016 have been covered in EASO’s report National service and illegal migration (Chapter 3.4). SEM has knowledge of the following incidents:
• Most incidents of deportations to Eritrea are still known from Sudan. Multiple forced returns across the land border at Talatasher between Kassala and Tesseney were reported in 2016 and 2017: According to a number of sources, several hundred Eritrean migrants were repatriated from Sudan in 2016 alone. In early 2017, another 115 Eritreans and Ethiopians were reportedly deported across the land border. After the border closure in January 2018, no further incidents are documented.
• One source reported in early 2017 that Egypt had deported 25 Eritreans to their home country. The source reported no further details.
• Two interlocutors reported that during the time the Eritrean-Ethiopian border was open, Eritrean soldiers went into Northern Ethiopia in search of absconded national service members. Some of them allegedly were taken back, while others remained in Ethiopia. The Ethiopian authorities were not reported to be actively involved in these incidents.
• On 6 June 2019, France deported an Eritrean woman by air via Istanbul, escorted by French policemen. The woman had been arrested in possession of counterfeit ID documents. The French NGO La Cimade reported that she had applied for asylum after being arrested, which had been rejected. A media report states that she did not speak English well and her first indications suggested that she had no fear in case of return.
The United States announced in September 2017 the repatriation of 700 Eritreans.499 At the same time, the U.S. government complained that Eritrea refused to take back deported citizens. Nevertheless, the U.S. authorities reported to have ‘removed’ 41 Eritreans in 2017 and 62 in 2018. These statistics do not show the destination country of the deportations; at least a part of the Eritreans were removed to third countries. In some cases, they were deported to Cairo airport and handed over to the Egyptian police. In June 2018, an Eritrean deportee committed suicide in a cell at Cairo airport. As of August 2019, discussions continue between the United States and Eritrea on means for returning nationals to their country of origin. The SEM and a consulted U.S. non-governmental organisation have no knowledge of reports on any direct removals of Eritreans from the United States to Eritrea.
Information about the treatment of the deported persons is scarce. Forced returnees usually have no opportunity to pay the 2 % tax and sign Form 4/4.2 and to thereby ensure a more lenient treatment. SEM observed that the fate of most deported persons upon arrival in Eritrea is unknown and undocumented. Information is available only regarding persons repatriated across the land borders from Sudan, and it is anecdotal. The available accounts describe that after arrival in Eritrea, most returnees were put in an underground prison near Tesseney, where the authorities screened and profiled them. Torture is reported from this prison. According to the accounts of deportees from Sudan who have left Eritrea again and sources who have been in touch with them, the follow-up depended on the profile:
• Persons who had not been conscripted yet were sent to military training e.g. in Afabet and later deployed to military units.
• Persons who had already been in military were sent to other prisons such as Hashferay or Adi Abeito.
• Younger children were released to their families.
• Elderly were sent to the military or enlisted in the People’s Army.
Due to the small number of forced returns to Eritrea, the information on the treatment of the forced returnees from Sudan is based on a small sample of anecdotal information. However, these observations are generally in line with SEM’s findings published in 2016.
United Nations General Assembly Human Rights Council Report of the Special Rapporteur on the situation of human rights in Eritrea 6 May 2022
Rule of law and administration of justice
36. Eritrea has made no progress towards the development of the minimum institutional infrastructure necessary to effectively protect and ensure respect for human rights. The country continued to lack the rule of law, and the Constitution of 1997 has never been implemented. Power is concentrated in the figure of the President. There is no division of powers, and Eritrea lacks a national assembly to develop and enact laws and regulations, and an independent judiciary to ensure the fair an equal enforcement of the law. The Special Rapporteur stresses that the separation of powers between the legislature, the executive and the judiciary branches of government is crucial to ensure access to justice and accountability for human rights violations.
37. The Special Rapporteur cautions that the lack of independent rule-of-law institutions and of the proper administration of justice has far-reaching consequences for the effective protection of human rights in the country. He notes that, in the context of the country’s universal periodic review in 2019, the Government agreed to strengthen the administration of justice in the country through the implementation of national laws and institutional capacity-building, and to adopt the necessary measures to guarantee the fight against impunity for human rights violations.16 However, no progress has been made in this regard. The Special Rapporteur regrets that the Government of Eritrea has not made efforts to tackle impunity and has continued to deny victims access to justice and redress for the human rights violations perpetrated against them.
38. The Government continued its policy of detaining individuals perceived as critical of the authorities for prolonged periods in an unlawful and arbitrary manner, without any regard for due process of law. While Eritrea committed to put in place measures to ensure respect for the rights to liberty, security and a fair trial in the context of its universal periodic review in 2019, the Special Rapporteur has not received any information regarding the adoption of such measures.
39. Law enforcement agencies, including the police, the military police and the internal security services, regularly arrested and detained citizens without observing due process guarantees. During the reporting period, the Special Rapporteur received numerous reports of the arrest and detention of draft evaders without any possibility for them to challenge the legality of their detention. The Special Rapporteur also documented cases of “punishment by proxy”, in which relatives of draft evaders or of individuals who fled the country were punished with imprisonment in their stead. Other detainees were held without being informed of the reasons for their arrest and without an arrest warrant. These recent incidents reinforce the continuing patterns of human rights violations that had already been previously documented by the Special Rapporteur and the commission of inquiry on human rights in Eritrea.
Detention
40. The Special Rapporteur is concerned about the situation of detainees, many of whom have been held in detention for prolonged periods. Some have developed chronic diseases over time. The health of others has deteriorated due to the appalling detention conditions. Access to medical attention in detention is minimal. Detainees are often not transferred to a hospital until their condition is grave. Referral to hospitals for the treatment of ongoing conditions is rare and takes a long time, despite the serious medical conditions presented by prisoners. The lives of detainees with chronic health problems are endangered because they have very limited or no access to medication or treatment. The Special Rapporteur received information about detainees whose situations had severely deteriorated as a result of lack of medical attention; some died while waiting to receive treatment.
41. The Special Rapporteur remains concerned about the situation of persons who were forcibly disappeared and arbitrarily detained in secret prisons in violation of human rights standards. He has heard testimonies from witnesses, and from detainees who were held in places known as “villas’” – secret places of confinement in the middle of towns that cannot be readily identified as prisons or places of detention. Although the number of such secret places cannot be verified due to the complete lack of transparency of the penitentiary system, considering the number of those who have been disappeared it is apparent that this practice continued to be widespread during the reporting period. The Special Rapporteur urges Eritrea to reveal the whereabouts of victims of enforced disappearance, including by informing their relatives of the places where they are detained, developing a transparent and efficient system for the registration of detainees and informing relatives about their state of health and conditions of detention.
42. The Special Rapporteur heard testimonies of victims imprisoned in infamous centres – including Adi Abeto, Eiraero, Adi Qala, Barentu, Gedem, Ghatelay, ai Daga, Me’eter, Prima country and Wi’a – who without exception described inhuman or degrading conditions of detention, namely extreme overcrowding, lack of access to food, water and sanitation, non-existent or inadequate medical attention and occurrences of torture and inhuman or degrading treatment. Eritrea should take all the necessary steps to prevent the violation of the human rights of persons deprived of their liberty, and to protect detainees from torture and other inhuman or degrading treatment by putting in place appropriate monitoring and inspection mechanisms. Eritrea should also ensure that persons deprived of their liberty are treated with humanity and dignity, in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).
Civic and democratic space
43. Civic space in Eritrea is tightly closed. The systematic repression and silencing of any dissenting voices persists, including through the detention or enforced disappearance of thousands of leaders and members of religious groups, members of the political opposition and sympathizers, activists, journalists and draft evaders. The widespread arbitrary arrest and incommunicado detention of individuals and groups perceived as critical of the authorities continued to instil fear and to effectively suppress freedom of expression and of association in the country.
44. No progress was made towards the representation and free participation of the Eritrean people in the public life of their country. While there are a variety of political opposition groups in the diaspora, the People’s Front for Democracy and Justice continues to be the only authorized party in Eritrea. The Eritrean authorities also attempted to impede the political organization and participation of Eritreans in the diaspora (see para. 60 below).
45. There is still no independent media or reporting from within the country. For over a decade, Eritrea ranked last out of 180 countries in the World Press Freedom Index.17 The Committee to Protect Journalists also designated Eritrea the most censored country in the world in 2019. 18 Information considered to be sensitive is suppressed, and attempts to document or expose the situation are repressed heavily. A group of 16 journalists, including the Swedish-Eritrean journalist and writer Dawit Isaak, have now been disappeared for over 20 years. They have been held in incommunicado detention in an undisclosed location and without contact with their families. Although they have never been charged with any crimes or brought before a court, they have remained in detention since the authorities shut down all independent media in 2001, making them the longest detained journalists in the world. There is also no information regarding the 11 former members of the Government known as the “G-15” detained in 2001. Several are believed to have died in custody. The Special Rapporteur has continued to urge the authorities to provide information about their whereabouts and state of health.
Eritrean asylum seekers
65. The Special Rapporteur notes that, as a result of the human rights violations experienced in their home country and the traumatic experiences endured during their journey, a large proportion of Eritreans arriving in Europe and the United Kingdom of Great Britain and Northern Ireland have physical or mental health needs requiring special attention. Eritreans also face important language barriers and difficulties in navigating the complex migration and administrative systems abroad. In many host countries these factors, coupled with the difficulties they face to obtain a work permit or benefit from family reunification, are driving Eritrean asylum seekers to desperation. The Special Rapporteur is particularly alarmed by the high rates of suicide among young refugees, who face enormous pressures to adapt to a new and radically different setting and to support their families back in Eritrea from an early age. He urges host countries to enhance protection and support for Eritrean asylum seekers and refugees, paying special attention to the situation of unaccompanied minors.

[2022] AATA 4807

18 October 2022

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