1918370 (Refugee)
[2019] AATA 6489
•16 September 2019
1918370 (Refugee) [2019] AATA 6489 (16 September 2019)
.
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1918370
COUNTRY OF REFERENCE: Ethiopia
MEMBER:Jason Pennell
DATE:16 September 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 September 2019 at 11.59am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – political opinion – association with former Communist government – race – Oromo – particular social group – mental health issues – drug user – failed asylum seeker – fear of detention – fear of killing – alleged political killings by family members – inter-ethnic conflict – effective protection – denial of basic services – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65
Migration Regulations 1994, Schedule 2CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v MZYYL [2012] FCAFC 147
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51Any 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
1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 July 2019 to refuse to grant the visa applicant a Protection (Class XA) Subclass 866 visa under s.65 of the Migration Act 1958 (the Act).
2.The visa applicant applied for the visa on 7 February 2019. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant was a person to whom Australia has protection obligations as outlined in s. 36(2)(a) or (aa) of the Migration Act 1958 (the Act)
3.The applicant appeared before the Tribunal on 23 August 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
4.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
5.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.
6.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.
7.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.[1] 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[2].
[1] s.5H(1)(a) of the Migration Act 1958
[2] s.5H(1)(b) of the Migration Act 1958
8.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, which are extracted in the attachment to this decision.
9.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.
10.An applicant is considered not to be at a real risk of suffering significant harm in a country if:
·it is reasonable for the applicant to relocate to an area of that country where there is no real risk that the applicant will suffer significant harm;[3] or
·the Tribunal is satisfied that the applicant could obtain protection from an authority of that country such that there would not be a real risk that the applicant would suffer significant harm. That is, the level of protection must be such that the risk that the applicant will suffer significant harm is something less than a 'real risk.'[4]
·The real risk is one faced by the population of the country generally and is not faced by the applicant personally.[5]
[3] Migration Act 1958 s.36(2B)(a) . SZATV v MIAC (2007) 233 CLR 18; SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
[4] Migration Act 1958 s.36(2B)(b) MIAC v MZYYL [2012] FCAFC 147.
[5] Migration Act 1958 s.36(2B)(b)
Mandatory considerations
11.In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
12.The issue in this case is whether the applicant meets the criteria set out in either of s.36(2)(a) or s.36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s migration history
13.According to the delegate’s decision dated 18 July 2019[6] (‘the delegate’s decision’) the applicant’s migration history is as follows:
[6] AAT file No1905388 @ f 35
1 December 1997
Granted [a temporary visa]
13 December 1997
Arrived in Australia as the holder of [that] visa valid until 30 December 2018.
18 September 2018
Applicants [temporary] cancelled on charter grounds.
1 March 2019.
Protection (Subclass 866) visa (PV) application lodged
Country of Reference
14.The applicant claims to be citizen of the Ethiopia. In support of his claim that he is an Ethiopian citizen, the applicant provided the department with a copy of Victorian Proof of Age Card with the name [Alias 1], [7] a copy of his Ethiopian birth certificate[8] and a copy of his Ethiopian Passport.[9]
[7] [File number] Digitised file received NAA.
[8] ibid
[9] ibid
15.There is no evidence to suggest that the applicant has a right to enter and reside, whether temporarily or permanently, in any other country. Accordingly, based on the applicant’s oral evidence to the Tribunal and the documentation provided to the department, the tribunal accepts and finds that the applicant is an Ethiopian citizen. As such, the applicant’s protection claim will be assessed against the Ethiopia as the country of reference and as the 'receiving country'.
The applicant’s protection claims
16.The applicant’s claims are detailed in his application for a protection visa dated 8 February 2019[10] and are summarised in the delegate’s decision as follows:[11]
[10] [File number] Digitised file received NAA
[11] Delegates decision dated 8 July 2019 @ p.2
(a)the applicant was born on [date] in [Town 1], Ethiopia. He states that he is a Christian and ethnic Oromo. .
(b)The applicant claims that his father was a farmer, but he died when the applicant was very young and as a result the applicant did not know him. His father had to two wives. The applicant and his [Brother A], were the children of his father’s second wife. The applicant’s [Brother B] and his two older sisters, [named], were the children of his father’s first wife and therefore half siblings to the applicant.
(c) When the applicant was young he lived with his [Brother A] and their mother just outside of [Town 1]. [Brother B] [and his sisters] did not live with them as they had were grown up and lived and worked in the capital city. [Brother B] had a powerful role in the (then) brackets Communist government, with [his sisters] also working for the government.
(d)When the applicant was about [age] years of age a war had broken out in Ethiopia As a result he and his [Brother A] were taken to a [church] camp/boarding school for their safety. He believes this may have been organised by [Brother B].
(e)The applicant’s mother did not visit him while he was at boarding school and during school breaks he stayed with a lady and her children at their house. One day the lady told him that his mother had been killed. The applicant believes that his mother have been killed because she was providing information to [Brother B] and others regarding the new government.
(f)After completing elementary school the applicant was transferred to another [church] boarding school located further away in another state of Ethiopian. He was therefore approximately [age] to [age] years. Quite a few people at the school where the children of leaders and officials in the former, former Communist government. Soldiers from the new government would come to the school to question or arrest children however the school would keep them safe.
(g)[Brother B] is considerably older than the applicant and was involved in the Communist government that was in power before the new government took over. The applicant isn’t doesn’t know the details of [Brother B’s] exact role in the government but believes he was very powerful. The applicant knows that the new government and their supporters wanted revenge against him. The applicant believes [Brother B] may have been involved in taking peoples lands however he was not sure.
(h)On one occasion during school holidays while the applicant was playing with friends to unknown men came and put a gun to the applicant’s head. The men questioned the applicant regarding the whereabouts of his brother before running away. The applicant people claims that people would regularly ask him about [Brother B’s] whereabouts in a threatening way. The applicant believes these people wanted revenge against [Brother B] due to the actions he took while he was in power.
(i)[His sisters] used to work for [Brother B]. The applicant only met his sisters once or twice and claims they fled to neighbouring countries prior to him departing for Australia. He believes they still reside in these countries however is not in contact with them. He also did not know [Brother B] very well prior to coming to Australia having only met him on several occasions. The applicant lived with [Brother B] and his wife when he first arrived in Australia however [Brother B] did not talk about his past and therefore the applicant has not learned what his role was in Ethiopian.
(j)The applicant has mental health issues since about 2006. He started seeking mental health treatment when he was in prison in 2008. He has been diagnosed with schizophrenia and depression and takes medication every day.
(k)In 2008 the applicant started using ice/methamphetamines. He has been unemployed since approximately 2008 due to his mental health condition.
(l)The applicant fears that if he is forced to return to Ethiopia he will be targeted and harmed by the government due to [Brother B’s] former position with the previous government. The applicant also fears being harmed by people who believe they were wrong by [Brother B]. The applicant believes these people may seek revenge against him.
(m)The applicant also fears that he would not be able to receive adequate support for his mental health and drug rehabilitation if he is returned to Ethiopian. The applicant needs access to his prescribed medication in Ethiopia and to have access to doctors/nurses.
(n)The applicant has no family members in Ethiopia and has no contact with anyone there. The applicant would not be able to obtain employment or earn money for food and accommodation. The applicant believes he would be homeless.
17.The applicant claims that he would be persecuted due to his actual or imputed political opinion, his mental health condition and his Oromo ethnicity. He claims that his persecution would be in the form of arbitrary detention, torture and possible death at the hands of Ethiopian authorities and/or members of the general community.
18.The applicant claim that there is a real chance that he will face serious harm at the hands of the Ethiopian authorities, including the police, prison staff health official and members of the community who seek revenge as a result of the actions taken by [Brother B] in his capacity as a government official prior to him leaving the country.
19.In addition, the applicant claims that as a result of the sever discrimination he would suffer upon his return to Ethiopia, there is a real risk he will be seriously harmed by reason that he will suffer severe economic hardship that will threaten his capacity to subsist and deny him the capacity to earn a living.
20.Finally, he claimed that as a result of his mental illness there is a real risk he will be seriously harmed. The applicant claims that he suffers for Schizophrenia and PTSD for which he requires ongoing treatment and medication. The applicant stated that people with mental illness in Ethiopian are highly marginalised and affected by stigma and discrimination. It was submitted that the country information describes instances where people with mental health illness are kept in chains and otherwise maltreated. The applicant submitted that while some mental health facilities do exist in Ethiopia, they are rudimentary, small in number and are largely concentrated in the capital.
21.The applicant submission was that his fear of persecution extended to all parts of Ethiopia and that he could not be expected to modify his behaviour and that effective protection would not be available to him in the event he returned to Ethiopia. In addition, as to any real risk of significant harm, the applicant claimed that state protection would not be sufficient standard and that the risk was to all parts of the country to the extent that any relocation would not be reasonable.
22.As to the applicant’s drug, he confirmed that he was currently on a methadone program and claimed that if he was to return to Ethiopia there is a real chance that he will regress and engage in drug taking behaviour as there is no support and no access to treatment in Ethiopia. Therefore as a consequence there is a real chance that if the applicant were to engage in drug taking behaviour in Ethiopia he would be targeted and imprisoned under Ethiopian harsh drug laws and while in prison he would suffer serious harm amount to persecution.
23.In addition, he submitted that he meets a complimentary protection threshold as he will be significantly harmed on his return.
24.At the hearing the applicant was represented. The applicant’s representative made oral submissions on behalf of the applicant. In addition to the applicant’s oral evidence his representative assisted in clarifying certain matter in relation to the applicant’s medical condition and circumstances including the fact that the applicant is in detention and that he is currently receiving medication in relation to his drug addiction. In addition, to the oral submissions provided by the applicant’s representative, the Tribunal received written submission dated 26 August 2019, 21 August 2019 and 28 May 2019. The Tribunal also received an undated statutory deceleration by the applicant that was said to have been drafted by his representative. The applicant said that he had not had the opportunity to sign the document, but explained that he had read it and agreed with its contents.
25.The applicant made no application to have the hearing adjourned by reason of his mental condition. Rather, during the course of the hearing the applicant appeared alert and conscious of the proceeding and the issues relevant to his application. He understood and provided coherent responses to all questions put to him by the Tribunal. Accordingly the Tribunal is satisfied that the applicant was provided adequate opportunity to give evidence, present arguments and answer questions.
Applicant in Australia
26.The applicant moved to Australia in or around 1996. Because the applicant believed [Brother B] was powerful in Ethiopian he was scared of [Brother B]. The applicant’s evidence was that [Brother B] did not talk about his past as a result he never learnt about what he did in Ethiopian.
27.In around 2013 [Brother B] found out that he had been there applicant had been imprisoned. As a result, his [Brother B], told him not to come around again and as a result the applicant and [Brother B] have not spoken since that time. The applicant’s evidence is that he has not spoken to his [Brother A] since then either.
28.The applicant claims that since about 2006 he has mental health and believes that they are as a result of the events that happened during his childhood. The applicant claims that he started to hear voices and became very lonely. He started seeking mental health treatment when he was imprisoned in 2008 and has been taking medication since then. The applicant has been diagnosed with schizophrenia and depression. From 2014 to 2017 the applicant lived in [City 1 in Australia] during which time he was homeless. He was registered with the [mental] health services though which he had access to a doctor and nurse every month. In 2018 the applicant was imprisoned. He continued to see a doctor for his mental health while in prison and continues to take medication every day and sees doctors and nurses while in detention.
29.In around 2008 the applicant claims that he started using ICE – methamphetamines. At some point he was put on methadone but at some point stopped and started using ice again. When he was put back in prison 2018 he was put back on methadone.
30.The applicant has been unemployed since 2008 he used to work [but] his mental health deteriorated so much that he couldn’t find work anymore started using drugs as he couldn’t cope anymore and has experienced some periods of homeliness homelessness since about 2010. The applicant claims if he was forced to go back to Ethiopian would be targeted and harmed by the government because of who his brother was. He is concerned that individual people who feel that they were wrong by [Brother B] for example because they think is responsible for taking the land or other bad things that happened during the war would want to hurt the applicant.
31.The applicant claims that because his brother was so powerful and his actions affected a lot of people, the government and other people in the community will want to extract revenge on him. The applicant recalls that a few years ago people in Ethiopian community in Australia were talking about a person who had posited ‘something threatening on Facebook’[12] about [Brother B]. He said that he thinks it was posted by a family who thinks [Brother B] is responsible something bad that happened to their family that they were asking for revenge. The applicant did not provide Tribunal with any evidence in relation to such a posting.
[12] Applicants Statutory Declaration dated
32.The applicant also claims that he is scared that if he is returned to Ethiopian he would not be able to get support that he needs for his mental health and drug rehabilitation. The applicant claims he has no family members in Ethiopian and he is not in contact with anyone there. As a result he claims he would not be able to get a job or get money for food or place to live and as a result would be homeless from the day that he was returned.
THE COUNTY INFORMATION
33.The Department of Foreign Affairs and Trade (DFAT) Country Information Report – Ethiopia 28 September 2017 (‘the DFAT Report’) states:
‘Oromos[13]
3.6 Oromos make up the largest single ethnic group in Ethiopia, at around 35 per cent of the population. Oromos live predominantly in south, central and western parts of Ethiopia, and in northern Kenya. Reliable, recent and detailed data are difficult to obtain but, according to the 2007 census, about half the population of the Oromia region (90 per cent Oromo) is Muslim, 30 per cent is Orthodox Christian, 18 per cent is Protestant or Catholic, and 3 per cent follow a traditional, monotheistic religion. Some Muslims and Christians follow a traditional religion in parallel. Oromos speak Oromiffa (also known as Afaan Oromo), which is the language of administration and schooling in Oromia.
3.7 Despite being the largest ethnic group in Ethiopia, Oromos have not enjoyed a level of political influence commensurate with their numbers. However, since the EPRDF came to power, Oromos have participated directly in the governing coalition through the Oromo People’s Democratic Organization (OPDO). OPDO members are ministers in the federal government and hold a range of public positions of power and influence at the federal level. Tensions between some Oromo groups and the federal government have arisen from perceived oppression and the displacement of Oromos from traditional lands on which the capital, Addis Ababa, is built. Addis Ababa, which is surrounded by the Oromia region, has rapidly expanding industrial and residential areas on its outskirts. Protests in Oromia in 2014, 2015 and 2016 led to violent clashes between protesters and security forces, several hundred deaths and the detention of thousands of protesters.
3.8 While there was widespread violence against and detention of protesters across Oromia in 2015 and 2016, DFAT assesses that this violence was not ethnically targeted, but reflected the government’s sensitivity to some forms of political opposition. People from all ethnic groups in Ethiopia are at risk of violence and detention if they actively and openly oppose the EPRDF. DFAT is aware of reports that authorities dealt more harshly with protesters in Oromia than protesters in Amhara. DFAT understands that the security forces’ different tactics in Oromia and Amhara reflected a concern over the high proportion of firearm ownership in Amhara and a risk that a tough response to Amhara protests could lead to a more sustained conflict. In this context, DFAT assesses that the response to protests in Oromia does not represent ethnically motivated violence. For more information on the protests and the government response, see Protests and the 2016 State of Emergency, below.
3.9 Overall, DFAT assesses that Oromos in Oromia face a risk of societal discrimination, due in part to Ethiopia’s ‘ethnic federation’ which means that Oromos in Oromia tend to live in Oromo-dominated communities. Oromos can face some discrimination in employment, particularly at more senior levels of government, the military and the intelligence services. DFAT assesses that Oromos face a low risk of official or societal violence on the basis of their ethnicity. However, people in Oromia who openly protest against the government may face a higher risk of official violence than protesters in other regions.’
[13] The DFAT Report @ p.12
34.The DFAT reports notes that:
‘Health[14]
2.09Ethiopia’s health system has undergone a significant transformation over the last two decades, including an expansion of health facilities and an increase in the number of health professionals working across the country. There have been strong improvements in some health outcomes; however, these improvements have come from a very low base. According to the World Development Indicators, the maternal mortality ratio in Ethiopia halved between 2007 and 2015, to around 353 deaths per 100,000 live births (compared with six deaths per 100,000 live births in Australia). The under-5 mortality rate has reduced from 93.8 per 1,000 live births to 59.2 per 1,000 live births over the same period (compared with a rate of 3.8 per 1,000 live births in Australia). Life expectancy at birth has increased to 64.6 years in 2015 compared with 56.3 years in 2005.
2.10Despite these significant improvements, Ethiopia still lags on a number of important health indicators. Rates of skilled attendance at births in Ethiopia are among the lowest in the world. Malnutrition rates are high, and around 40 per cent of children under the age of five exhibit moderate or severe stunting. The continuing drought has exacerbated a significant outbreak in 2017 of Acute Watery Diarrhoea with 27,000 cases reported in the first four months of the year. ‘
[14] The DFAT Report @ p.6
35.An article reporting on the primary mental health care services in Ethiopia reports that:[15]
[15] Clinical Neuropsychology: Open Access, Neuropsychopharmacol Ment Health, Vol 1(4)
‘Mental Health Services in Ethiopia
It is estimated that about 25 million Ethiopians suffer some form of mental disorder, while less than 10 per cent receive any form of treatment, and less than 1 per cent receive specialist care.
Psychiatrists are an extremely scarce resource in Ethiopia; in population of over 101 million, there are only 63 psychiatrists, yielding a ratio of 0.65 psychiatrists to 1 million people. Most of the psychiatrists are concentrated in the large cities and consequently treatment gap exists as a high proportion of Ethiopians live in rural areas (more than 80 percent of the populations of the country live in rural areas) and therefore have no access to mental health services. As far back as the 1970s, the World Health Organization (WHO) recommended that psychiatry be firmly rooted in primary care in order to effectively reduce the treatment gap for mental health disorders . Community model of mental health care in Ethiopia impediments to mental health care services in our communities include the uneven distribution of mental health resources, problems of accessing services in remote locations, affordability, and social acceptability in relation to ignorance and belief systems. Families often have to make out-of-pocket payments for these services due to nonavailability of social support systems. Specifically, on the National Health Insurance Scheme (NHIS), there is limited coverage for mental health care.
The resultant effect of all these impediments is the rising number of people with mental health disorders living on the streets, a major social problem requiring urgent attention. Integrating mental health services into primary care is the most viable way of ensuring that people receive the mental health care they need. People can access mental health services close to their homes, thus keeping families together and maintaining their daily activities, and also avoid indirect costs associated with seeking specialist care in distant locations. In addition, intervening at primary care level helps to minimize stigma and discrimination.
Community model of mental health care in Ethiopia
In Ethiopia impediments to mental health care services in our communities include the uneven distribution of mental health resources, problems of accessing services in remote locations, affordability, and social acceptability in relation to ignorance and belief systems. Families often have to make out-of-pocket payments for these services due to non-availability of social support systems. Specifically, on the National Health Insurance Scheme (NHIS), there is limited coverage for mental health care.
The resultant effect of all these impediments is the rising number of people with mental health disorders living on the streets, a major social problem requiring urgent attention.
In order to overcome problems of low coverage of mental health service in Ethiopia ministry of health is practicing community based mental health services including integration of mental health service at primary health care (PHC) level. There are several advantages to treating common mental health problems in primary care and other priority health care programs. First, integrated treatment programs in which medical providers are supported to treat common mental health problems offer a chance to treat ‘the whole patient’, an approach that is more patient-centered and often more effective than an approach in which mental health, acute and chronic physical health, reproductive health, and chronic pain problems are each addressed in a different ‘silo’ without effective communication between providers. Second, integrated care programs that can address patients' mental health needs in the context of general or other specialized health care settings are often more attractive to patients and family members who are concerned about the stigma that is still associated with mental and substance abuse disorders and the treatment settings that specialize on caring for individuals with severe mental disorders.
Integrating mental health service in primary health care (Mental Health Gap Action Program (mhGAP) for people suffering from mental, neurological, and substance use disorders) in Ethiopia: Mental Health Gap Action Program (mhGAP) for people suffering from mental, neurological, and substance use disorders was started to be implemented before one year and six month in different regions of Ethiopia at primary health care levels. The purpose of mhGAP is implementation and Scaling up care for mental, neurological, and substance use disorders in primary health care facilities (nonspecialized health-care settings) by non-specialized professionals (working at first- and second-level facilities) and 360 primary health care professionals selected from different health care facilities were trained on selected mhGAP priority disorders. These trained professionals receive periodic supervisions and training on site of work from well experienced psychiatry professionals. In additions they have mentoring programs including e-mentoring system where they consult psychiatry professionals by using phones, emails and other electronic communications systems.
Mental health care at non specialized centers (health centers, district and regional hospitals): In 1985 the ministry of health of Ethiopia, Amanuel mental specialized hospital training department and world health organizations (WHO) decided to train psychiatry nurses as the best alternative to provide mental health services at non-specialized health centers including at primary health care levels in the country. The training program was started in 1987. General nurses from district hospitals and health centers were recruited. The training took one year and was designed to enables them to identify and treat common mental disorders. Around 446 psychiatry nurses were trained in this program and working at different regions of the country. These trained professionals receive periodic supervisions and refreshment training on site of work from well experienced psychiatry professionals.
Support and Supervisions
Support and supervision aims to assist trainees to deliver improved mental health care (clinical supervision) and provide support in the work environment related to mental health care implementation (administrative and programmatic supervision). Support and supervision is considered as one part of the training and was planned to given periodically at least twice a year by well experienced psychiatry professionals. In additions they have group supervision and refreshment training outside the work environment as well as consultation by telephones. Follow up support and supervision put in place for success and sustainability of the care.’
36.The DFAT report nots in relation to the treatment of returnees:
‘Treatment of Returnees
5.18 Ethiopia is a source, transit and destination country for international migration. Large numbers of people attempt to move from Ethiopia to other countries in search of better economic opportunities. These people typically travel along three routes: through Somalia, Djibouti or Eritrea to Yemen and then on to Saudi Arabia; north through Sudan and Libya in an attempt to reach Europe; or south, in an attempt to reach South Africa. The numbers of people travelling by air to western countries tend to be much smaller.
5.19 In recent years, the Saudi Arabian government has launched a series of crackdowns on undocumented migrants. The most recent of these, announced in March 2017, provided a 90-day amnesty for undocumented workers to leave Saudi Arabia voluntarily or face forced repatriation. The 90-day amnesty expired on 29 June 2017. There are reportedly an estimated 400,000 undocumented Ethiopian migrants in Saudi Arabia. As at 23 June, only around 35,000 people had returned to Ethiopia. The Ethiopian government has also attempted to restrict irregular migration from Ethiopia in recent years. However, even with restrictions on legal migration, crackdowns on undocumented migrants, and the war in Yemen, some people still use people smugglers to travel through Yemen to Saudi Arabia in search of domestic work (women) or construction jobs (men). Of those who travel south, many are stopped prior to making it to South Africa and returned to Ethiopia. According to credible sources in Addis Ababa, some of these people use the reintegration assistance provided upon their return to fund another migration attempt.
5.20 DFAT understands that there are very few successful involuntary returns to Ethiopia of failed asylum seekers from western countries. Authorities typically welcome voluntary returnees to Ethiopia who are not outspoken opponents of the government. The government has on occasion publicised voluntary returns, in recognition of the Ethiopian diaspora’s contribution to the economy through remittances. There have been some reports of authorities monitoring voluntary returnees for a period following their return, but DFAT is not aware of any credible reports of voluntary returnees who are not active opponents of the government facing problems stemming from their status as failed asylum seekers.
5.21 However, DFAT assesses that people who return to Ethiopia and who are perceived as being political activists opposed to the government are likely to face a high risk of being monitored, harassed, arrested and detained, particularly if they continue to engage in political activities upon their return. DFAT also assesses that people who openly criticise the Ethiopian government while they are outside Ethiopia face a high risk that the Ethiopian authorities will be aware of these activities and take action against these people upon their return. This includes people who actively oppose the Ethiopian government on broadcast media, internet-based news sites or blogs, or social media. The Ethiopian authorities have significant intelligence-gathering capabilities and are likely to be aware of significant protest activity undertaken in other countries and online. Ethiopian authorities have tried, convicted and sentenced a number of political and human rights activists and journalists in absentia.’
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
37.When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation from home and family. There may also be memory issues resulting from the lapse of time, and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
38.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is 'well-founded' or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to 'significant harm'. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim[16]. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[17]
[16] s.5AAA Migration Act 1958.
[17] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
39.A reasonable approach needs to be adopted when making a finding in relation to an applicant’s credibility.[18] Care must be taken not to exclude from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
[18] Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 per Foster J @ p482
40.If an applicant’s account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt.[19] However, such a benefit should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.
The accepted facts
[19] The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
41.Having considered the applicant’s evidence the Tribunal accepts and finds that:
(a). the applicant was born on [date] in [Town 1], Ethiopia.
(b). the applicant is a Christian and ethnic Oromo.
(c).the applicant’s father died when he was very young and as a result the applicant did not know him.
(d).the applicant’s father had two wives. The applicant and his [Brother A], were the children of his father’s second wife. The applicant’s [Brother B] and his two older sisters, [named], were the children of his father’s first wife.
(e)the applicant lived with [Brother A] and his mother just outside of [Town 1].
(f).[Brother B] had a role in the former Communist government, with [his sisters] also working for the government. The applicant has only met his sisters once.
(g).the applicant and his [Brother A] were taken to a [church] camp/boarding school at about the age of [age] upon the outbreak of war in Ethiopia
(h)the applicant’s mother was killed while the applicant was a child.
(i)the applicant and his [Brother A] stayed with a lady and her children at their house during term breaks while they were not at boarding school. .
(j)the applicant was transferred to another [church] boarding school located further away in another state of Ethiopian upon completing elementary school.
(k)the applicant lived with [Brother B] and his wife when first arriving in Australia.
(l)the applicant has been diagnosed with schizophrenia and depression.
(m)the applicant started using ice/methamphetamines in or about 2008.
Applicant’s Relevant Grounds
42.The applicant submits that his claims fall within the scope of s.5J(1)(a) of the Act by reason of his ethnicity, political opinion and as a membership of a particular social group.
43.The applicant claims that he fears being identified as a member of the particular social group by reason that he is a person with a mental illness in Ethiopia, a drug user in Ethiopia and as a failed asylum seeker. For the applicant to be considered part of a particular social group pursuant to section 5L of the Act, a person is considered to be a member of a particular social group if a characteristic is shared by each member of the group and the person shares, or is perceived to share, that characteristic. The characteristic must distinguish the group from the rest of society. It must be innate or immutable or so fundamental to the identity or conscience of the members of the particular group that a member should not be forced to renounce it.[20]
[20] /Section 5L of the Act
44.In this case, the Tribunal has doubts that being a person with a mental illness in Ethiopia, a drug user in Ethiopia constitutes a characteristic that is so fundamental to the identity or conscience of the applicant as to be considered a member of a particular group to the extent that it distinguishes him and the group from society at large. Nevertheless, for the purpose of this decision, the Tribunal is prepared to accept that he is a member of a particular social group by reason that he is a person with a mental illness in Ethiopia, a drug user in Ethiopia and as a failed asylum seeker.
45.Accordingly, the Tribunal accepts that the applicant is a member of a particular group pursuant to s.5J(1) Of the Act.
The Applicant’s well-founded fear.
46.Section 5J of the Act states that for the purposes of application under the Act a person has a well-founded fear of persecution ‘if the person fears being persecuted for reasons of race, religion, nationality, membership of social a particular or political opinion’ and that there is a real chance that they will be persecuted for one or more these reasons in the event they are returned to their receiving country.
47.In Chan v MIEA[21] the Court, when considering ‘well-founded fear’ for the purposes of the Convention, held that it involves both a subjective and objective element. That is, the definition will be satisfied if an applicant can show genuine fear founded upon a ‘real chance’ of persecution based on a Convention reason. Justice Dawson noted that the phrase ‘well-founded fear of being persecuted...’ contains both a subjective and an objective requirement. That is, there must be a state of mind (fear of being persecuted) and a basis (well-founded) for that fear.[22]
[21] (1989) 169 CLR 379 at 396.
[22] (1989) 169 CLR 379 at 396. See also MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 per Brennan CJ, Toohey, McHugh and Gummow JJ.
48.The subjective element of ‘well-founded fear’ concerns the state of mind of the applicant. That is, whether an applicant has a genuine fear is a question of fact.
49.However, to hold a ‘well found fear of persecution’ on an objective basis the applicant’s [23]claim must be more than merely plausible or credible. In Chan v MIEA, Dawson J [24]stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.’
[23] ACIC letter dated 12 December 2018 AAT file No 1905388 @ f 85
[24] Chan v MIEA (1989) 169 CLR 379 per Dawson J at p.397
50.In MIEA v Guo, the Court stated that: [25]
‘Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.’
[25] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.
51.In this case, the applicant claims that if he is returned to Ethiopia there is a real chance he will suffer serious harm by the authorities by reason of being an ethnic Oromo, as a result of his imputed political opinion as the brother of [Brother B] and as a membership of a particular social group by reason that he is a person with a mental illness in Ethiopia, a drug user in Ethiopia and as a failed asylum seeker. While the Tribunal accepts that the applicant does have subjective fear of returning to Ethiopia, for the reason detailed below, on an objective basis, it does not accept that the applicant has a well-founded fear of persecution.
The Applicant’s Refugee claim
52.The applicant claims that his brother [Brother B], was a powerful figure in the ruling Communist party, the Derg. As a result the applicant claims that by being [Brother B’s] half- brother he will be arrested, detained, tortured or killed by the Ethiopian authorities on account of his imputed anti–government imputed political opinions. In addition he also states that he fears he will be harmed by members of the general public who believe that they were wronged by [Brother B] through his actions with the Derg and who will seek revenge by harming the applicant.
53.The Derg was a committee of nearly 120 military officers led by an army lieutenant colonel Mengistu Haile Mariam, who came to power in Ethiopia after ousting Emperor Haile Selassie in 1974. It ruled the country until 1991 when it was overthrown by the Ethiopian People’s Revolutionary Democratic Front (EPRDF). Despite its rule being marred by violence, oppression, instability, poverty and drought, there are some reports that the Derg, and its leader, Mengistu, are now remembered fondly by some in Ethiopia.[26]
[26] The Economist, ‘Why Ethiopians are nostalgic for a murderous Marxist regime’ 7 December 2017, applicant has been only able to provide minimal information regarding [Brother B’s] former position in the Derg. He was not able to tell the Tribunal what position [Brother B] held in the former government other than he may have been a State leader and that he ‘had a powerful job.’ The applicant claimed that [Brother B] was involved in taking peoples land and was responsible for many people’s deaths. As a result he claimed that are many people in Ethiopia who are unhappy with him and would want to harm him.
55.The applicant provided the tribunal with a statutory deceleration by [Ms C] dated 19 August 2019[27], [Brother B’s] ex-wife, in which she states that her marriage to [Brother B] was arranged by their families when she was she was [age] years old. She states that [Brother B] was [an official] of [District 1], Ethiopia, a powerful role within the Communist Government. She stated that it was a similar role to being [a specified official] [in Australia]. Her evidence was that when the Communist Government was defeated, the new government started attacking those people who had served with the previous government.[28] [Ms C’s] evidence was that [Brother B] feared being harmed because, despite being Oromo, he was involved in the killing of many Oromo people when he was in power but did not provide any details of his involvement in the alleged killings as claimed. She claimed that as a result [Brother B] fled to Australia in or about 1991. In or about 1994 [Brother B] sponsored her and their [children] to migrate to Australia. [Ms C] claims that prior to migrating to Australia she was regularly interrogated by the new government as to [Brother B’s] location, but confirmed that she was never imprisoned due to the fact that she had children to care for at that time. The fact that [Brother B], [Ms C] and the applicant have been able to leave Ethiopia legitimately on their respective passports indicates to the Tribunal that they were not of any interest to the authorities at the time they left the country.
[27] Statutory Deceleration by [Ms C] dated 19 August 2019 AAT file 1918370 @ f31
[28] Op Cit @ paragraph 8; AAT file 1918370 @ f31
56.While the applicant has only provided limited information as to [Brother B] role with the Derg, based on the statutory deceleration by [Ms C], the Tribunal accepts and finds that [Brother B] was a member of the Derg and was [an official ] of [District 1], Ethiopia prior to 1991.
57.[Ms C’s] evidence however, was that she has returned to Ethiopia two or three times since her divorce form [Brother B]. While she states that, as a result of having lost her passport, she was arrested by the police in 2009 and interrogated as to [Brother B’s] whereabouts; she was released and continued traveling on her Ethiopian passport. Therefore, based on [Ms C’s] own evidence, it appears that the authorities have little interest in detaining based on any imputed political opinion she may possess as [Brother B’s] former wife. The fact that she has been able to travel to Ethiopia several times without harm from members of the local community also indicates that there is little risk to her or other members of [Brother B’s] family returning to Ethiopia.
58.Therefore, in circumstance’s were the applicant has limited contact with [Brother B] both in Australia and Ethiopia and has no political profile, save for being [Brother B’s] half-brother, it is extremely unlikely that the authorities will have any interest in the applicant upon his return to Ethiopia. The Tribunal notes that [Brother B’s] involvement with the Derg was prior to 1991. That is, more than 27 years ago and at a time when the applicant was no older than [age] years old. In such circumstances, even if the authorities are still interested in the whereabouts of [Brother B], the Tribunal does not accept that there is a real chance the applicant will suffer serious harm by reason of his imputed political opinion as [Brother B’s] half-brother. As such the Tribunal finds that there is no real chance the applicant will be seriously harmed by the authorities in the event that he is returned to Ethiopia by reason of his imputed political opinion as [Brother B’s] half-brother as claimed.
59.In addition the applicant has claimed that he still be harmed by members of the community who were affected by the actions of [Brother B] while he was with the Derg. In particular he claimed that [Brother B] was involved in the confiscation and transfer of many people’s lands. However, the applicant was not able to provide any evidence of [Brother B’s] involvement with the Derg, in particular he did not provide any evidence that [Brother B] was involved in the confiscation and transfer of land as claimed. Finally, the applicant did not identify any did people who may have been affected by [Brother B’s] actions as claimed. Nevetthless, even accepting that [Brother B] was an official with the Derg, the Tribunal does not accept there is a real chance that the applicant will be seriously harmed as a result of being [Brother B’s] half-brother. As referred to above [Brother B] involvement with the Derg was prior to 1991 at the time that the applicant was approximately [age] years old. There was no evidence of members of the community wanting to harm the applicant prior to him leaving Ethiopia. In addition [Ms C] has returned to Ethiopia on several occasions without any harm for members of the community. In such circumstances the Tribunal does not accept that there is any real chance the applicant will be seriously harmed by members of the community wanting revenge as a result of the actions by [Brother B] in the event he returns to Ethiopia.
The Applicant’s Oromo Ethnicity.
60.The applicant claims that there is a real chance he will be seriously harmed on his return to Ethiopia as a result of the current inter-ethnic conflict. The applicant claims that particularly since the election of Prime Minister Abiy Ahmed[29] he is at heighten risk of coming to the attention of the authorities and other ethnic groups and being targeted on the basis of his ethnicity due to his mental health condition, as a retuned asylum seeker, as a drug user, his connection to [Brother B] and lack of family support.[30]
[29] Applicant’s submissions dated 26 August 2019 at p.6, AAT file 1918370 @ f.46
[30] ibid
61.However, the country information notes that Oromos make up the largest single ethnic group in Ethiopia, at around 35 per cent of the population. They live predominantly in south, central and western parts of Ethiopia. Thirty per cent of Oromos are Orthodox Christian, 18 per cent is Protestant or Catholic. [31] While the country information notes that despite being the largest ethnic group in Ethiopia, the Oromos have not enjoyed a level of political influence commensurate with their numbers. However, it states that since the EPRDF came to power, Oromos have participated directly in the governing coalition through the OPDO whose members are ministers in the federal government and hold a range of public positions of power and influence at the federal level.[32]
[31] DFAT report @ p.12
[32] ibid
62.The country information reports that while there was widespread violence against and detention of protesters across Oromia in 2015 and 2016, this violence was not ethnically targeted, but reflected the government’s sensitivity to some forms of political opposition. People from all ethnic groups in Ethiopia are at risk of violence and detention if they actively and openly oppose the EPRDF. [33]The assessment by the available country information[34] is that Oromos face a low risk of official or societal violence on the basis of their ethnicity. Therefore, based on the country information the Tribunal finds that there is no real chance the applicant will be seriously harmed, by either official or societal violence, as a result him being an ethnic Oromo.
[33] ibid
[34] ibid
63.Therefore, based on the country information, the Tribunal finds that there is no real chance the applicant will be seriously harmed in the event that he returns to Ethiopia by reason of his Oromo ethnicity.
The Applicant’s Mental Health
64.The applicant claims that as a result of his mental health condition there is a real chance that he will be seriously harmed in the form of arbitrary arrest, detention, interrogation and/or physical harassment in the event that he is returned to Ethiopia by reason that it increases the likelihood that he will come to the attention of the police, authorities or members of the public who will seek to persecute him by reason of his connection to [Brother B], his Oromo ethnicity and/or his drug use.
65.In addition, it is submitted by the applicant that the lack of health professionals and treatment facilities in Ethiopia demonstrates systemic and persecutory discrimination on the part of the Ethiopian state towards people with mental illness. That is, the Ethiopian state discriminatorily decides not to provide adequate mental health treatment and services to people suffering from mental illness. It is submitted by the applicant that this discriminatory conduct also reflects the broader social stigma around mental health in Ethiopia. reflects
66.Finally, the applicant submits that his mental health condition is such that it would amount to persecution by threatening his capacity to subsist. The applicant submits that the social stigma and discrimination faced by sufferers of mental illness at the hand of Ethiopian society and authorities, including mental health officials, places the applicant in a situation that there is a real chance he will be seriously harmed through the denial of basic access to services.
67.It is submitted that this risk is heightened by his lack of family who are willing and able to assist him in Ethiopia and to the denial of access to a broad range of services required to exist. The likelihood of access to mental health services is but one facet of capacity to subsist as it relates to people with mental illness in Ethiopia.
68.It is estimated that about 25 million Ethiopians suffer some form of mental disorder, while less than 10 per cent receive any form of treatment, and less than 1 per cent receive specialist care. Psychiatrists are an extremely scarce resource in Ethiopia
69.A 2016 Ethiopian research article[35] published in a psychiatry journal, focussing upon residents in the Ethiopian town of Gimbi,[36] reported that 35% of its 816 research participants agreed that mental illness was punishment by God and 49% were ‘unsure’. It reported that 64% agreed that an evil sprite could be the cause of mental illness and 27% were ‘unsure.’ 65.7% of participants believed evil sprites cause ‘major depressive disorder’ while 13% believed it was caused by God’s punishment and 18.1% believed it to be by ‘witchcraft’. 53.4% percent believed that ‘major depressive disorder’ should be treated by prayer and19.4% by ‘holy water’.
[35] Benti M, Ebrahim J, Awoke T, Yohannis Z, and Bedaso A, ( 2016), ‘Community Perception towards Mental Illness among Residents of Gimbi Town, Western Ethiopia’, Hindawi Publishing Corporation, Psychiatry Journal, Volume 2016.
[36] [Deleted.]
70.Another 2016 research article,[37] which surveyed the Ethiopian town of Jimma stated that its respondents “had high scores for a stigmatizing attitude towards” people living with mental illness (‘PWMI’) in Ethiopia, and that its “study revealed that a negative attitude towards PWMI is widespread”. The report contained the following further information:
One-third of the respondents … reported that they had been threatened or attacked by PWMI, and 61% had witnessed others being threatened or attacked.
The majority of the respondents (74.9%) believed that keeping PWMI behind locked doors is the best way of handling PWMI. More than three-fourths of the participants (86.3%) stated that adults with mental illness needed the same kind of control and discipline as young children (A5), and more than half (56.3%) rejected … the view that virtually anyone can become mentally ill. …The majority of respondents (68.4%) rejected the statement that describes the mentally ill as having been the subject of ridicule for too long. Although a large portion of the respondents (96%) agreed that they have a responsibility to provide the best possible care for PWMI, 84.0% believed that increased spending on mental health services is a waste of tax money. A total of 85.1% of respondents rejected the statement “We need to adopt a far more tolerant attitude toward the mentally ill in our society”, and more than three-fourths agreed with the statement “It is best to avoid anyone who has mental problems”. … The statement “The mentally ill should be isolated from the rest of the community” was found acceptable by majority of the respondents (84.8%), and 93.0% of them did not want to live next door to someone who has been mentally ill. A total of 82.7% of the respondents believed that a woman would be foolish to marry a man who had suffered from mental illness, even though he seemed to be fully recovered. The majority of respondents (73.7%) believed that anyone with a history of mental problems should be excluded from taking public office. Only 7.3% of respondents believed that PWMI should not be denied their individual rights, and 78.3% of the respondents did not agree that PWMI should be encouraged to assume the responsibilities of normal life. A total of 89.6% of respondents rejected the statement “No one has the right to exclude the mentally ill from their neighbourhood”. In general, most of the residents believed that PWMI are a threat to society and should be avoided, indicating that most of them had socially restrictive view towards the PWMI. … The statement “Residents should accept the location of mental health facilities in their neighborhood to serve the needs of the local community” was rejected by 90.9% of residents. Many respondents (85.0%) also did not agree with the statement “The therapy for many mental patients is to be part of a normal community”. A total of 74.5% of respondents had a negative view about providing mental health services through community-based facilities, and a large number (91.5%) rather believed that locating mental health facilities in a residential area downgrades the neighbourhood…..Overall, the residents are likely to deny PWMI their individual rights, prevent them from taking on various responsibilities and forbid people from marrying and living together with PWMI. In general, few respondents have information on mental health. In situations like this, mental health facilities are expected to play a great role in enhancing mental health awareness, but in contrast our findings show that health service institutions contribute less to delivering mental health information than other sources.’
[37] Reta Y, Tesfaye M, Girma E, Dehning S, Adorjan K (2016) ‘Public Stigma against People with Mental Illness in Jimma Town, Southwest Ethiopia’. PLoS ONE 11(11): e0163103. doi:10.1371/journal.pone.0163103
71.A 2016 article in the Journal of Neuropsychopharmacology & Mental Health,[38] states:
‘It is estimated that about 25 million Ethiopians suffer some form of mental disorder, while less than 10 per cent receive any form of treatment, and less than 1 per cent receive specialist care. Psychiatrists are an extremely scarce resource in Ethiopia; in population of over 101 million, there are only 63 psychiatrists, yielding a ratio of 0.65 psychiatrists to 1 million people. Most of the psychiatrists are concentrated in the large cities and consequently treatment gap exists as a high proportion of Ethiopians live in rural areas (more than 80 percent of the populations of the country live in rural areas) and therefore have no access to mental health services. …The resultant effect of all these impediments is the rising number of people with mental health disorders living on the streets, a major social problem requiring urgent attention.’
[38] Ayano G (2016) ‘Primary Mental Health Care Services in Ethiopia: Experiences, Opportunities and Challenges from East African Country’. Journal of Neuropsychopharmacological Mental Health 1: 113.
72.According to an Ethiopian Online Psychology website:[39]
‘In a country where people are already struggling for survival, the impact of mental illness on the person and their family is immense. Stigma, discrimination and human rights abuses are part of the everyday life of the mentally ill and their families in Ethiopia. Mentally ill persons with no kind of family structure are even worse hit and end up on the street and ultimately a burden on society.’
[39] Zepsychologist, 2015, “Culture and Mental Health in Ethiopia”, 7 October,
World Health Organisation has also reported from Ethiopia that people with mental illness are “affected by stigma and discrimination” and are often the “most marginalized”.[40]
[40] WHO, 2016, “Mainstreaming mental health in Ethiopia”, April, 2017 article in the journal BMC Psychiatry, states:
‘The aim of this study was to explore barriers to, and facilitators of, service user/caregiver involvement in rural Ethiopia to inform the development of a scalable approach…
Stigma and exclusion were noted to operate within the health system, in the community and even to affect the self-identity of the person with mental illness and their family. Half of policy/planning level participants perceived that service providers, policy makers and health system managers at all levels had negative attitudes towards mental health and people with mental health problems. Examples presented by some interviewees to support this perspective included (i) the lack of prioritization of mental health in the policy agenda compared to other public health concerns, and (ii) the widespread assumption that service users would be unable to contribute anything of value to the mental health system because of the effects of mental illness. Some policy/planning level participants articulated that system-level stigma would be an insurmountable barrier to service user involvement. …
The low status of people with mental illness in society was considered to be an important barrier to involvement. The service user and caregiver participants described repeated experiences of unsupportive, discriminatory behavior from the local community and a lack of acceptance of their right to take on social roles. As a consequence some interviewees spoke of experiencing diminished opportunities for productive lives and exclusion from their civic rights (employment, participation in meetings, and voicing their say). Exclusion resulting from stigma was also reported to affect their access to treatment and thereby to impede recovery and limit their capacity to be involved in system strengthening.’
75.The applicant provided the Tribunal a Psychiatric Report by [a named doctor] dated 14 August 2019 (‘the Psychiatric Report’) in relation to his mental condition. The Psychiatric Report concludes that the applicant is suffering from paranoid schizophrenia which is largely in remission on antipsychotic treatment but with residual chronic auditory hallucinations. It notes that the applicant’s relapses often occur in the context of non-compliance and/or substance abuse and refers to the fact that management of his illness has been complicated homelessness, poor insight and a tendency to minimise his symptoms when unwell. The report states that the applicant presents with low mood and depressive ruminations regarding his possible future with suicidal thoughts in relation to a fear of a relapse into psychosis. However, the report notes that he does not meet the criteria for an episode of Major Depression but that he may be vulnerable to a relapse in the current circumstances. The applicant’s evidence was that he does not have any family contacts or any current employment prospects in Ethiopia. The applicant claims that if he is returned to Ethiopia he will not be able to obtain employment for the purposes of supporting himself to buy food and accommodation and as result will be homeless. However, the applicant has qualifications in [an] industry and has shown himself to be capable to earning a living and supporting himself without any family support in Australia. The applicant’s evidence was that upon his arrival in Australia he only stayed with [Brother B] for approximately three months before leaving home and finding accommodation on his own. He completed an apprenticeship the [industry] and was able to support himself without any family or other support. The Tribunal therefore finds that the applicant has the necessary qualifications and abilities to find employment and be able to support himself on his return to Ethiopia.
76.Based on the Psychiatric Report, the Tribunal accepts and finds that the applicant is suffering from paranoid schizophrenia and depression. As such the Tribunal accepts that the applicant will face a difficult situation upon his returned to Ethiopia that will affect his ability to function and interact with the community. However, the Tribunal notes the available country information reports that Ethiopia’s health system has undergone a significant transformation over the last two decades, including an expansion of health facilities and an increase in the number of health professionals working across the country. It is reported that there has been strong improvements in some health outcomes notwithstanding that such improvements have come from a very low base.[41] In addition Ethiopia’s National Mental Health Strategy 2012/3- 2015/16[42] (‘the National Mental Health Strategy’) reports that the Ethiopian government has recognised the importance of mental health in Ethiopia by developing a national mental health strategy in an attempt to provide seamless, sustainable and quality integrated mental health treatment. The Report states as follows:
The Federal Ministry of Health’s (FMOH) initiative to develop a National Mental Health Strategy marks an important milestone towards the delivery of a comprehensive and integrated program to address the mental health needs of Ethiopians.
The strategy is consistent with the overall health policy and plan of FMOH and the World Health Organization’s (WHO) recommended guidelines for the development of a mental health policy, plan and program. The strategy is a timely effort in light of Ethiopia’s accelerated economic and social development plans. It recognizes the importance and the positive contributions of a physically and mentally healthy community in general and workforce in particular.
The strategy also recognizes the strong interconnections between mental illness and poverty; mental illness can lead to poverty by limiting an individual’s resource potential for productive economic engagement. Poverty is also a risk factor for mental illness and severely limits an individual’s access to mental health and other health services, thereby increasing the risk of morbidity, disability and mortality.
The strategy is based on the five-tiered pyramidal structure know as Optimal Mix of Services which is recommended by WHO. Focusing on priority disorders and vulnerable groups, this pyramidal structure seeks to utilize all existing human potential such as mental health specialists, general practitioners, health officers, nurses, urban and rural health extension workers. The strategy relies heavily on the primary health care system to provide seamless, sustainable and quality integrated mental health treatment, with care provided at all levels of the health system from tertiary referral and general hospitals, down to health centers and health posts. Mental health specialists are a critical component of integration of mental health in primary care. In light of the dearth of skilled mental health professionals in the country, the strategy calls for accelerated training and expansion of a cadre of mental health professionals. The current shortage of skilled manpower, as well as the multi-faceted nature of mental disorder which requires multi-dimensional interventions, also calls for the upgrading and utilization of an array of health professionals and paraprofessionals, including traditional healers, and those from faith-based institutions and community-based organizations.[43]
[41] DFAT Report @ p.12
[42] Federal Democratic Republic of Ethiopia Ministry of Health, National Mental Health Strategy 2012/3-215/16.
[43] Opcit @ p2
77.The National Mental Health Strategy states that mental health care is for everybody, but with particular attention given to the special needs of particularly vulnerable populations including the severely mentally ill, substance abuse suffers, children and adolescents HIV/AIDS victims and women.[44]
[44] Op Cit @ p.4
78.An article dated April 2016the World Health Organisation[45] reports that the Government has shown a strong commitment to improving mental health care and getting services to people who need them as evidenced by the allocation of funds for the roll out of the mental health strategy across the country. It reports that since a pilot project was conducted in 2010-2013, the Government has increased the budget for mental health for the purposes of increasing the training and supervision of mental health services and the procurement of psychotropic medications.
[45] World Health Organisation Mainstreaming mental health in Ethiopia April 2016, while the Tribunal does accept that mental health facilities in Ethiopia are far from ideal, based on the country information outlining the Ethiopian government’s mental health strategy, the Tribunal does not accept that the state has demonstrated systematic and discriminatory conduct towards the applicant or people with mental illness in Ethiopia.
80.Accordingly, the Tribunal does not accept that the Ethiopian state has systematically and discriminatorily decided not to provide adequate mental health treatment and services to people suffering from mental illness. In fact, the country information suggests that by recognizing the link between mental illness and poverty the state has positively recognised mental health within society and acted positively towards those suffering from mental illness by implementing a mental health strategy.
81.While the applicant states that some mental health facilities do exist in Ethiopia, he claims that are rudimentary, small in number and are largely concentrated in the capital. However, based on the country information, it appears that the Ethiopian government is providing a range of mental health services. The available country information indicates that in 2017 there were sixty mental health outpatient facilities attached to hospitals, two hospitals with inpatient care and approximately fifty two psychiatric units in general hospitals operating in Ethiopia.[46] While the Tribunal accepts that the level of mental health care in Ethiopia is relatively low, the country information indicates that it is available to those who require it. There is no suggestion that the applicant would be not be able to access mental health care services to the same level as other Ethiopian citizens or that he would be denied such mental health services.
[46] Mental Atlas 2017 Member State Profile, World Health Organization 2017, p.1, 20190213092859.
82.The Tribunal accepts that it is not possible to monitor whether the applicant would access mental health services in Ethiopia and that there is a risk that he will avoid accessing any such services. In the event that the applicant fails or refuses to access mental health services in Ethiopia, the Tribunal does not accept that any harm the applicant may suffer as a result of failing or refusing to access such services would mean that he faces a real chance of serious harm upon his return to Ethiopia. That is, in the event that the applicant is not able to find employment for the purposes of providing himself with food and accommodation due to failing to access the mental health services available in Ethiopia, the Tribunal finds that any such harm that may flow from his failure to access such services would not amount to serious harm. Accordingly, based on the country information the Tribunal is not satisfied that the government of Ethiopia would deny the applicant access to services available to other Ethiopian citizens for any reason or that any refusal of the applicant to access such services would amount to a deliberate act or omission on the part of the Ethiopian authorities.
83.Given that the Tribunal has found that the applicant would not be denied mental health care, it follows that it does not accept that he will face a denial of basic services such that it would threaten his capacity to subsist in Ethiopia.
84.As to the applicant’s claims that he would suffer discrimination due to his mental health, leading to serve economic hardship, the Tribunal accepts that he may be stigmatised and face a degree of discrimination. However, given the degree of mental illness in Ethiopia and the recognition by the authorities in relation to its treatment, the Tribunal does not accept that such discrimination will amount to serious harm.
85.For these reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Ethiopia, for reasons of his membership of a particular social group, as defined in the Act and as such finds that there is not a real chance he will suffer serious harm in the event that he is returned to Ethiopia.
The Applicant as a Drug User
86.The applicant claims that as a drug user there is a real chance that he will suffer serious harm in the event that he is returned to Ethiopia. The Tribunal accepts that the applicant has from time to time taken methamphetamines since 2008 and that he has been placed on a methadone program, in which he continues to participate.
87.The applicant claims that in the event he is returned to Ethiopia he will have no support and no access to treatment and as such there is a real chance his treatment and rehabilitation will regress and that he will fall back into the habit of using drugs. The applicant claims that he is currently on a methadone program while he has been in prison and in detention. He states that in Ethiopia there is no methadone program available.[47] Based on the country information the Tribunal accepts that there is no current methadone program in Ethiopia. He claims therefore in the event that he returns to Ethiopia he will be targeted and imprisoned under Ethiopia harsh drug laws and that while in prison he would suffer serious harm amounting to persecution. However, the Tribunal notes that the applicant has only received methadone treatment as a result of being in prison and while in detention. There is no evidence that he sought any such treatment while he was free in the community in Australia.
[47] WORLD HEALTH ORGANISATION Pharmacotherapy with methadone Data by country, lasted updated 28/08/17 Tribunal has considered the available country information in relation to the available health services and medical treatment available in Ethiopia. The DFAT repots notes that, while coming off a very low base, Ethiopia’s health system has undergone a significant transformation over the last two decades, including an expansion of health facilities and an increase in the number of health professionals working across the country. [48]
[48] DFAT Report @ p.12
89.In addition a Ethiopia Country Commercial guide[49] reports that:
‘Currently, more than 16,600 healthcare centers deliver health services in Ethiopia. The GOE encourages private sector participation in the area of quality of care and quality of service. The government is also working with the private sector to build advanced tertiary care hospitals to meet domestic demand that would otherwise be met through outbound medical tourism, and ultimately to attract medical tourism to Ethiopia. The Ethio-American Hospital, which began construction in April 2017 and plans to begin operations by December 2019, is an example of the government’s commitment to developing major new healthcare facilities. This project also demonstrates the government’s commitment to encouraging foreign investment in the sector through public private partnership (PPP) arrangements.’
[49] Export.gov, Ethiopia –Helathcare 11 May 2018, article in AllAfrica dated 12May 2018[50]states that substance abuse is becoming normalised in Ethiopia. It states that the issue has been a major concern for the country at large and notes that hospitals have begun equipping themselves with wards that attend to patients who come with addiction problems, and there are numerous counselling programs dedicated to creating awareness about drugs.
[50] AllAfrica ‘Ethiopia: Substance Addictions Add to Socio-Economic Woes’ by Eden Sahle dated 12 May 2018, based on the available country information the Tribunal is satisfied that a range of healthcare services are available for the applicant in Ethiopia including treatment for his drug addiction. From the country information the Tribunal notes that substance abuse has become more normalized in Ethiopia and that that it has been acknowledged by the authorities that greater treatment and resources are needed to deal with the issue within the community in Ethiopia. As an Ethiopian citizen there is no reason to consider that he would be denied access to medical and health care services at the same level as other Ethiopian citizens. As such, the Tribunal finds that the Ethiopian authorities would not deny the applicant access to such services in a systematic or discriminatory manner.
92.Nevertheless, the Tribunal accepts that it is not possible to monitor whether the applicant will access drug addiction health services in Ethiopia. In the event that he fails or refuses to access the available health services in Ethiopia for the purposes of treating his drug addiction, the Tribunal accepts that there is a risk he will be arrested and jailed as claimed. However, the Tribunal does not accept that any harm he may suffer as a result of him failing or refusing to access such services would mean that he faces a real chance of serious harm upon his return to Ethiopia. That is, in the event that the applicant failed or refused to seek help for his drug addiction, the Tribunal finds that any such harm that may flow from his failure to access such services such as being jailed and imprisoned, would not amount to serious harm for the purposes of s.36(2)(a) of the Act.
93.Finally, given that the Tribunal has found that the applicant will not be denied access to health services in Ethiopia, the Tribunal does not accept that the applicant will face a denial of basic services such that it would threaten his capacity to subsist in Ethiopia. While the tribunal accepts that he may be stigmatized as a result of his drug use, the Tribunal does not accepts that this amoujhts to serious harm.
94.Accordingly the Tribunal finds that the there is no real chance the applicant will face serious harm pursuant to s.36(2)(a) of the Act as a result of his drug use in the event that he returns to Ethiopia
The Applicant as a failed Asylum Seeker
95.The applicant claims that as a failed asylum seeker there is a real chance he will suffer serious harm by reason of being a failed asylum seeker. However, there is no evidence that the applicant has been outspoken against the Ethiopian government. In addition the Tribunal has already found that there is no real chance that he will face any serious harm upon his return to Ethiopia by reason of his relationship with [Brother B].
96.As such based on the country information and the fact that the Tribunal has found that he does not have political profile that would be of interest to the Ethiopian authorities, the tribunal finds that there is no real chance that he will suffer serious harm upon his return to Ethiopia by reason of him being a failed asylum seeker.
97.Therefore for the reasons above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.5J(1)(a) and 5J(1)(b) of the Act. As such the Tribunal finds that the applicant does not satisfy the criterion set out in s.36(2)(a).
98.Therefore, the Tribunal finds that he does not face a real chance of persecution, now and into the reasonably foreseeable future, for any reason. In addition, given the Tribunal’s finding that the applicant does not have a well-founded fear of persecution under s.5J(1) of the Act it also finds that the applicant is not refugee pursuant to s.5H of the Act.
99.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Complementary protection
100.In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
101.The applicant claims that he satisfies the requirements under s.36(2)(aa) by reason that he faces a real risk of significant harm including arbitrary deprivation of life, torture, cruel, inhuman and degrading treatment or punishment. In particular, the applicant claims that there is a real risk he will suffer significant harm in the event he is returned to Ethiopia by reason that he is an ethnic Oromo, he imputed political opinion as [Brother B’s] half-brother, his mental illness, a drug user in Ethiopia and as a failed asylum seeker.
102.In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[51] It therefore follows that the Tribunal does not accept and finds that there is no real risk that the applicant will suffer significant as a foreseeable consequence of the applicant being removed from Australia to Ethiopia by reason of him being ethnic Oromo, by reason of his claimed his imputed political opinion as [Brother B’s] half-brother or as a failed asylum seeker.
[51] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].
103.The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from the applicant’s mental health and drug addiction. As the ‘real risk’ test is the same as the ‘real chance’ standard, for the reasons stated above in relation to each of the applicant’s claims, the Tribunal does not accept that there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia.
104.In particular, as the Tribunal has found that the applicant will not be denied access to medical services for his mental illness, the applicant’s claims that he will be harmed as a result of his mental illness and use of drugs to the extent that he will not be able to subsist, the Tribunal finds that such harm does not constitute significant harm for the purposes of s.36(2)(aa) and s.36(2A) of the Act by reason of the fact that such harm access such services would not amount to a deliberate act or omission on the part of the Ethiopian authorities or as a result of any actions by community generally.
105.While the Tribunal accepts that the applicant may be stigmatised and face a degree of discrimination, the tribunal has found that given the level of mental illness in Ethiopia and the recognition by the authorities in relation to its treatment, that any stigmatisation or discrimination will not amount significant harm for the purposes of s.36(2)(aa) of the Act.
106.Finally the Tribunal has found that the applicant will not be denied access to medical services for his drug use. The applicant claims that in the event that he is returned to Ethiopia that he will be subjected to harm as a result of his drug addiction as he will be targeted by the authorities. However, the Tribunal has found that he will not be denied access to medical facilities for the purposes of treating his addition. In addition, the Tribunal finds that such harm does not constitute significant harm for the purposes of s.36(2)(aa) and s.36(2A) of the Act by reason of the fact that such harm would not amount to a deliberate act or omission on the part of the Ethiopian authorities or as a result of any actions by community more generally.
107.At no stage did the applicant advance any other reason in his written or oral claims that the applicant is owed Australia’s protection obligations. The Tribunal therefore finds there are no more residual claims, including based on the applicant’s accepted circumstances, to be considered.
108.Having regard to all the circumstances and findings above, considered individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, there is a real risk he will suffer significant harm as required by s36(2)(aa).
CONCLUSION
109.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) the Act.
110.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36 (2) (aa).
111.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
112.The Tribunal affirms the decision not to grant the applicant a protection visa.
Jason Pennell
Senior Member
‘Primary Mental Health Care Services in Ethiopia: Experiences,Opportunities and Challenges from East African Country’ by Getinet Ayano, 29 August 2016,
Key Legal Topics
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Citations1918370 (Refugee) [2019] AATA 6489
Cases Citing This Decision0
Cases Cited10
Statutory Material Cited0
MIAC v MZYYL [2012] FCAFC 147AWL17 v Minister for Immigration and Border Protection [2018] FCA 570Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22