1914106 (Refugee)

The applicant, an Eritrean citizen, sought a protection visa in Australia. She claimed a well-founded fear of persecution if returned to Eritrea due to her past membership in the Eritrean Democratic Party (EDP), an underground opposition movement, and her anti-regime activities. These activities involved providing information about sensitive government documents to the EDP. Her fears were heightened by the subsequent arrest of her son and a colleague involved in the EDP, and her own position of trust within the ruling party, the People’s Front for Democracy and Justice (PFDJ), which gave her access to classified information. The applicant also suffers from Post Traumatic Stress Disorder, anxiety, and depression, stemming from her war experiences and the trauma of her son's arrest, and fears a lack of adequate mental health support upon return. The decision under review was made by the Refugee Tribunal.

The primary legal issue before the court was whether the applicant met the criteria for a protection visa under section 36(2)(a) of the *Migration Act 1958* (Cth), specifically whether she was a refugee due to a well-founded fear of persecution for reasons of political opinion or membership of a particular social group. This required determining if there was a real chance she would suffer persecution in Eritrea for these reasons, and if such persecution would involve serious harm. The court also considered whether effective protection measures were available to her in Eritrea and if she could reasonably modify her behaviour to avoid persecution.

The court considered extensive country information regarding Eritrea, including reports on arbitrary arrest and detention, the treatment of returnees, the lack of rule of law, and the systematic repression of dissent. It found that the applicant's past involvement with the EDP, coupled with her former position of trust within the PFDJ, meant her connections with the opposition movement were known to Eritrean authorities. The court accepted that if returned, the applicant would likely be screened, identified as a person with connections to the EDP and whose family members had been arrested, and subsequently arrested without charge, detained, interrogated, and potentially subjected to torture, including rape, due to her gender and pre-existing mental health conditions. The court also found that no effective protection was available from Eritrean authorities, as they were the likely perpetrators of harm, and that civil society organisations were government-controlled. The court concluded that the applicant had a well-founded fear of persecution for reasons of political opinion and membership of a particular social group, and that this persecution would involve serious harm.

The Tribunal was satisfied that Australia had protection obligations towards the applicant under section 36(2)(a) of the *Migration Act 1958* (Cth). Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies the criteria for a protection visa.