1919488 (Refugee)

1919488 (Refugee) [2022] AATA 4787 (19 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Isobel McGarity
CASE NUMBER:  1919488
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:David James
DATE:19 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 19 October 2022 at 11:10am
CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – Oromo ethnicity – political opinion – supporter of Oromo independence and self-government – daughter of a long standing and senior member of the Oromo Liberation Front (OLF) – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ethiopia, applied for the visa on 30 January 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H(1) of the Act and was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. Additionally, the delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Ethiopia, that there is a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal), on 18 July 2019. The applicant provided a copy of the delegate’s decision and a pre-hearing submission with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision with the application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 11 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.
The applicant was represented in relation to the review.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues in this review is whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicant was returned to Ethiopia she would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Ethiopia, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Applicant’s claims for protection
The applicant when applying for the visa referred to her attached Statutory declaration in which she states she was born on [Date 1] (not [Date 2] as recorded on her Ethiopian passport) in the area called [Village 1] in the Oromia region of Ethiopia. Her family is of Oromo ethnicity, and they taught her about their country’s political problems. She was sent away by her mother in 2011 when she was [age] years of age due to her mother’s fears for her safety in Ethiopia. Through an agent her mother found work for her in [Country 1] as a [Occupation 1]. As to her date of birth (DOB) as recorded on her passport, she states that she was only [age] years of age at that time and the agent recorded her DOB as [Date 2] on her passport so she would be able to leave Ethiopia.
She subsequently worked for an Arabic family in [Country 1] from 2011 to 2016 during which time her employers retained her passport but for her trips back home to Ethiopia in 2013, 2014, and 2016. Her passport was returned to her in Australia in 2016 by the Australian Federal Police (AFP) after she escaped from her employers during a trip to the Gold Coast. She had arrived with the family in Australia [in] July 2016 and whilst with them on the Gold Coast she left their accommodation on [date] July 2017 and complained to police as to her domestic servitude by the [Country 1] family. During the investigation and until police obtained her passport and belongings from the [Country 1] family, she was held at the Brisbane Immigration Detention Centre for a period of five days. She states that she had returned to Ethiopia in 2016 to renew her passport and was carful only to tell her mother of her visit and made sure that she stayed at home in her village when in the country. She at the time of her application had last spoke to her father in 2016 whilst in Australian Immigration Detention and then at that time did not now know where he is or whether he is alive.
The applicant’s claims as provided in her declaration (in summary) are:
Background:
·She has been associated through her family with the Oromo Liberation Front (OLF) of which her father is an active member. The OLF is a political group in Ethiopia and can be described as ‘freedom fighters’ because they want the fighting in Ethiopia to stop and they fight for their freedom. She recalls her father being away from home on multiple occasions when he had been arrested and jailed by the Ethiopian authorities due to his membership of the OLF.
·She has been told by her family that in about 2005 when she was about [age] or [age] years of age that her brother who was then [age] years of age and a student member of the OLF Youth had been killed at a OLF student protest by the Ethiopian People’s Revolutionary Democratic Front (EPRDF).
·She herself did not attend any protests or demonstrations with the OLF but believes her name would appear on OLF membership and contribution lists due to her family connections and monetary donations that her family has made to the OLF.
Additional claims under the heading of ‘As to why she fears returning to Ethiopia’:
·She seeks protection in Australia as it is too dangerous for her to return to Ethiopia as she left her homeland when she was [age] years old when her mother sent her to [Country 1] to avoid the violence in Ethiopia between Government and her ethnic Oromo people.
·She fears being kidnapped, hurt, raped, and/or killed if she was to return to Ethiopia for an extended period due to the continuing ethnic and political fighting and conflict in Ethiopia.
·She cannot seek protection from the Government as they are controlled by the EPRDF and that the police are corrupt.
·She believes her names is already known to the EPRDF as an OLF supporter or the family member of a member (her father and deceased brother) of the OLF and she could easily be placed on an airport watch list in the future which could see her being detained at the airport.
Department interview
The applicant was interviewed by the Department on 11 February 2018.
Delegate’s decision
The delegate’s decision of 24 June 2019 to refuse the protection visa was made on the information before the delegate. The delegate found the applicant did not herself possess a profile of interest with the Ethiopian authorities and this had not changed given her political inactivity in Australia. The delegate accepted that the applicant’s father had historically been of interest to the authorities but was not satisfied on the information before him that he had continued to be of interest since the current reformist government had been elected and was not satisfied that any interest in her father had been extended to his family given that her mother and older brother have not been adversely affected. The delegate with reference to Country information was not satisfied that the applicant would be imputed with any anti-government or pro-Oromo political opinion on account of her father’s or brother’s political activities. The delegate also found that as the applicant was an educated woman from an urban centre who has family support her chances of suffering serious harm for reasons of being a single woman and/or a woman in Ethiopia was remote.
The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act, and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
Submission of 18 July 2019
The applicant through her representative replied to the delegate’s decision in a submission to the Administrative Appeals Tribunal (AAT) in which she repeated her claims and addressed the relevant legislation submitting that her ability to have travelled to Ethiopia does not detract from her well-founded fear and that she does have a well-founded fear of persecution arising from her Oromo ethnicity and her imputed anti-government political profile due to her father’s past political activities and membership with the OLF.
Invitation to attend hearing
On 21 September 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 11 October 2022. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to her application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Pre-hearing submissions to the Tribunal
On 6 October 2022 the Tribunal received correspondence from the applicant’s representative in two parts. The first part contained a Statutory declaration by the applicant sworn on 6 October 2022. The second part included; a pre-hearing submission, the applicant’s earlier statutory declaration, the submissions of 18 July 2019, United Nations High Commissioner for Refugees (UNHCR) Position on Returns to Ethiopia and the UNHCR Guidelines on International Protection No. 7: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and persons at Risk of Being Trafficked. The submission summarised the applicant’s claims as being:
·Her political opinion and imputed political opinion as anti-government and pro-Oromo liberation in Ethiopia (claim made and maintained);
·Her ethnicity (race/nationality) as a young Oromo person (claim made and maintained);
·Her membership of a particular social group as a single woman (claim made and maintained);
·In the alternative, her membership of a particular group as a single mother (new claim);
·Her membership of a particular social group as a woman who has experienced modern slavery and could be at risk of future exploitation (claim made on the face of earlier material, further articulated on review); and
·Religion as Christian of the Ethiopian Orthodox Tewahedo Church (new claim).
And submits with reference to supporting country information and the criteria for a grant of a protection visa that:
The risk of serious harm and significant harm that the applicant faces in Ethiopia rises to a level that warrants protection, based on a cumulative consideration of the above claims, and the totality of the Applicant’s circumstances.
The applicant’s declaration of 6 October 2022 repeats her earlier claims and includes evidence in support of her additional (new) claims as outlined in her submission of the same date.
In her declaration she provided evidence as to what she has recently been told by her parents as to the current situation in Oromo including that her father is no longer working the family [farm] in [Village 1] due to the recent government violence in the area and his past and present membership and association with the OLF. Presently her cousins are operating the [farm] for the family. In this regard she further states her father’s other farm, a family cooperative lentil farm, also in [Village 1], has also been abandoned due to an alleged targeted attack by government forces which destroyed the farm. The applicant’s parents are now reported by the applicant to be renting accommodation in the Addis Ababa suburb of [Suburb 1] where her brother is also renting accommodation.
Country information
The Tribunal has taken into account the DFAT Country Information Report Ethiopia, 12 August 2020, as relevant, including the information under the heading of ‘Political System’ at 2.31 to 2.41 in which it states at 2.37 and 2.38 that:
Ethiopia has witnessed significant changes in the political operating environment since April 2018. Restrictions on political opposition have eased significantly since April 2018, and political parties are able to operate more freely, particularly in Addis Ababa. To date, over 130 political parties have declared their intention to contest the forthcoming national election. Most are organised along ethnic lines.
In June 2018, federal parliament removed Ginbot 7 (Amharic for ‘May 15’, the date of the disputed 2005 election), the Oromo Liberation Front (OLF) and the Ogaden National Liberation Front (ONLF) from its list of terrorist organisations. The parties, which maintained armed wings and were committed to the overthrow of the EPRDF through militant means from their bases in Eritrea, were designated as terrorist organisations in June 2011. Ginbot 7, the OLF and the ONLF have since returned from exile and now participate in the political process. Other major opposition movements include the Ethiopian Federal Democratic Unity Forum (also known as Medrek) and Ethiopian Citizens for Social Justice (known as Ezema). Medrek is a coalition of four parties: the Ethiopian Socialist Democratic Party (ESDP), the Arena for Sovereignty and Democracy, the Sidama Liberation Movement (SLM) and the Oromo Federalist Congress (OFC). Ezema was formed in May 2019 through the merger of several opposition parties, including Ginbot 7, the Ethiopian Democratic Party (EDP), the Semayawi Party (known as the Blue Party) and Unity for Democracy and Justice (UDJ, also known as Andinet, the successor party of the CUD/Qinjit). Some political parties promote openly nationalist platforms. Ezema is one of the few political parties that is not ethnic-based.
Under the heading of ‘Security Situation’ 2.50 to 2.59 noting that at 2.50 to 2.52 it is reported that:
The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018. Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date.
Inter-ethnic clashes along the border between Oromia and Somali states have displaced more than 1 million people since 2017. Clashes have subsided, but continue to flare up sporadically. In August 2018, the federal government deployed forces to quell riots in Jijiga, the capital of Somali State, and surrounding areas. The riots were triggered by the arrest of the state president, and involved the targeting of non-Somalis and Christians at least 30 people died and 140,000 were displaced. Youths loyal to the former state president, belonging to a group called the Heego, were behind the riots. The security situation in Somali State has improved significantly since. In February 2019, federal parliament adopted a proclamation establishing a national reconciliation commission to promote dialogue and encourage resolution of inter-ethnic disputes.
The return from exile of previously-banned groups and individuals has catalysed unrest in Oromia State. In September 2018, the return of the OLF provoked intra-Oromo clashes and the targeting of homes and businesses belonging to non-Oromos. At least 70 people were killed and 15,000 displaced. The OLF has yet to disarm completely, and some OLF factions engage in armed clashes with government forces, particularly in western areas of Oromia State. Armed OLF factions have reportedly engaged in criminal activities, including extorting businesses and conducting bank robberies in western Oromia. In October 2019, at least 86 people died during riots triggered by claims – made via Facebook – that the federal government was endangering the personal security of Jawar Mohammed, a prominent Oromo activist and founder of the Oromo Media Network (OMN). Jawar, an advocate for greater rights for the Oromo people who was previously allied to Prime Minister Abiy (but who is now a prominent critic), helped organise from his US base the 2014-18 protests that precipitated the resignation of the previous government. Jawar returned to Ethiopia in August 2018.
And under the heading of “Oromos’ at 3.5 to 3.8 where at 3.8 it states that:
While there was widespread violence against, and detention of, protesters across Oromia State between 2014 and 2018, DFAT assesses this was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. The situation for government critics, including ethnic Oromos, has improved significantly since April 2018. DFAT assesses that individuals who are part of, or have links to, armed OLF factions engaged in criminal activities and clashes with government forces are likely to be of interest to the authorities, and face a moderate risk of arrest and detention. The risk of arrest and detention faced by OLF members who participate peacefully in the political process is low. DFAT assesses, overall, Oromos face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. DFAT assesses that, excluding in Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority.
‘Religion’ at 3.25 to 3.32 noting that at 3.30 and 3.31 it is reported that:
While there has been a recent uptick, attacks on places of worship are rare overall. The two largest religious groups, Orthodox Christians and Muslims, generally respect each other’s right to practise their faith, despite some low-level mutual mistrust. Local sources told DFAT that inter-faith marriage in Addis Ababa is common. DFAT has observed people of different faiths openly attending their respective religious services without facing discrimination or harassment. In many parts of the country, particularly Oromia State and major cities such as Addis Ababa where there are large numbers of Orthodox Christians and Muslims, mosques and Orthodox Churches are located within close proximity of one another, with no evidence of hostility or tension. There are an estimated 40,000 mosques in the country. Major Islamic festivals are observed as public holidays and DFAT observed men and women in Islamic dress walking the streets freely in Addis Ababa.
DFAT assesses there is a low risk of official and societal discrimination or violence on the basis of religion, including in the case of religions with small followings. DFAT assesses that people can practise their religious beliefs freely and openly.
‘Political Opinion (Actual or Imputed)’ at 3.33 to 3.41 where at 3.34 and 3.41 it is reported that:
In practice, political freedoms were significantly curtailed before April 2018. Members of opposition groups, human rights activists, and independent commentators such as journalists and bloggers who opposed the government’s policies were regularly harassed and detained. The ATP was used extensively to restrict political freedoms and arrest and prosecute government critics, particularly individuals with suspected affiliations to proscribed groups Ginbot 7, the OLF and the ONLF. Against this background, many opposition leaders and dissidents left Ethiopia. Individuals who were not members of the EPRDF reportedly faced discrimination in public sector employment, including impediments to career progression. Anti-government protests were often dispersed through force, and participants arrested.
DFAT assesses tolerance for political dissent has increased considerably since April 2018. Opposition political parties are able to organise and operate significantly more freely, particularly in Addis Ababa, and their members face a low risk of harassment, arrest and detention by virtue of their political affiliations and views. DFAT assesses Ethiopians can openly criticise the ruling party.
Heading of ‘Woman’ at 3.57 to 3.61 where it states at 3.61 that:
DFAT heard anecdotally that divorce is not uncommon in urban areas and divorce rates are increasing overall. Women’s growing economic independence in urban areas and the availability of legal aid services and courts were cited as contributory factors. Being a single woman or seeking divorce from one’s husband is widely accepted in major urban areas and carries less social stigma compared to rural areas. According to local sources, single or divorced women may face greater economic challenges but not societal discrimination in urban areas.
‘State Protection’ at 5.1 to 5.3 noting at 5.3 it is stated that:
DFAT assesses that, overall, federal and regional security forces are largely effective at maintaining law and order and in providing protection from threats by non-state actors, particularly in major urban centres. However, DFAT assesses that the emergence of armed, invariably ethnic-based non-state actors has increasingly challenged the state’s monopoly on the use of force and its concomitant ability to provide protection in remote areas and along borders separating Ethiopia’s regional states.
Treatment of Returnees at 5.33 to 5.38 where at 5.38 it is reported that:
DFAT assesses that, under the current federal government, failed asylum seekers face a low risk of harm on their return to Ethiopia, including where they sought asylum on political grounds.

Notwithstanding the DFAT Country information above the Tribunal is mindful of recent changes in Ethiopia and notes that Human Rights Watch has reported that that the human rights position in Ethiopia has recently deteriorated amid growing unrest and political tensions.[1]
[1] Human Rights Watch – Ethiopia Events 2020, >
In their ‘Ethiopia Events of 2021’ report Human Rights Watch state that:
The human rights and humanitarian situation in Ethiopia deteriorated further in 2021, which civilians impacted by devastating conflict in Tigray, security force abuses , attacks by armed groups, and deadly ethnic violence in other regions. The Government’s activities in Tigray contributed to growing international pressure to address accountability for rights abuse…
…Extrajudicial killings, mass arrests, arbitrary detentions, and violence against civilians occurred in other regions facing unrest and insecurity.
In Oromia, reports of arrests, detention and summary executions of Oromo civilians accused of supporting the armed rebel group, the Oromo Libersation Army (OLA), continued. In May, security forces in Dembi Dollo, western Oromia, violently apprehended a 17 year-old boy and then summarily executing him in public…
…Ethiopian authorities passed a nationwide state of emergency November 4, granting the government far-reaching powers that heighten the risks of arbitrary arrest and detention against at-risk communities, but could have a chilling effect on humanitarian activities, induce self-censorship by the media, activist groups, and human rights organisations, and risk emboldening abusive elements within the security forces.[2]
[2] World Report 2022: Ethiopia | Human Rights Watch (hrw.org) - hearing – 11 October 2022
The Tribunal hearing was conducted at the Brisbane Registry with the assistance of an interpreter in the Amharic and English languages. The applicant appeared in person with her solicitor Ms Isobel McGarity appearing on behalf of Anti-Slavery Australia via video link.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant and her solicitor confirmed that the applicant understood the relevant statutory framework and concepts as to the refugee and complementary protection criterion.
The applicant adopted her Statutory declaration of 6 October 2020 as her evidence in relation to her understanding and beliefs as to the current situation in Ethiopia and her claims for protection. When questioned on that evidence she explained that she had been told by her parents that presently the Government has been destroying farms in Oromo as they suspect the farmers in this area are supporting, hiding and protecting members of the Oromia Liberation Army (OLA).
The applicant’s evidence as to her background was in accordance with her Statutory declaration and to the effect that at [age] years of age, she had been sent to [Country 1] to work for a family as their in-house [Occupation 1]. That to facilitate her departure from Ethiopia her passport had been obtained by her family with the assistance of the employment agency and recorded her date of birth as [Date 2]. She explained that date of birth had been created so she would appear older and thus able to depart Ethiopia and commence work in [Country 1]. She stated that her date of birth is in fact [Date 1]. She explained that in Oromo such information as to births are not centrally recorded and the only evidence of her date of birth had been her baptism certificate which had since been lost by her mother when her family were displaced from their village.
The applicant stated that her sister had also been sent to work as a [Occupation 1] in [Country 1] by her parents as they feared for her safety in Ethiopia. She explained that she did not have any contact with her sister in [Country 1] as the family she worked for would not allow such contact. She does not know where her sister is presently but understands through her family that she is still working for a Arabic family in [Country 1].
The applicant started that her father was still an active member of the OLF and had been involved in the struggle for Oromo liberation for many years. She explained he had regularly attended meetings and participated in discussions and donated money to the OLF on a monthly basis as did her surviving brother. She explained that as her father is older now, he is not involved in the physical struggle but rather acts as an elder or advisor within the organisation (OLF).
The applicant’s evidence was that her father had been farming the family’s [farm] at [Village 1] whilst her mother had since about 2004 remained in Addis Ababa where her parents rented a house in [Suburb 1] near to where her brother rents his house in the capital. However, her father had to flee the farm about three months ago and leave their village and return to Addis Ababa to join her mother as the conflict in the area between liberation forces and government troops had gotten worse. She explained that her parents had told her that the government had been conducting searches in the village for people they suspected were harbouring fighters and people who were known to be part of the conflict.
Her evidence was to the effect that her father’s other farm in [Village 1], a [farm] which is operated by a cooperative of her father’s friends and family, had been destroyed by government troops about a month ago. She explained that the cooperative members are all OLF supporters and she understood from her family that the government authorities searched the farm including her cousin’s house for weapons and questioned her cousins about her father’s whereabouts.
In her evidence she explained that her parents are residing together in their rented house in Addis Ababa and maintain a low profile by not going out much as they are scared of her father being identified and located by the government authorities. Presently she states there is a government enforced curfew in Addis Ababa.
The applicant confirmed her claims and fears as outlined in her Statutory declaration of 6 October 2022. She stressed that her ethnicity, political stance and profile arising from her views and imputed to her, from her father’s long established membership, and support of Oromo liberation, through his activities with the OLF, together with the deteriorating political situation and government violence made it unsafe for her to return to Ethiopia.
FINDINGS AND REASONS
Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Ethiopia and provided details of her passport and a date of birth with her visa application. Based on this material the Tribunal finds that the applicant is who she says she is, and a national of Ethiopia. Ethiopia is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal also accepts on the evidence of the applicant that her date of birth is [Date 1].
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[3] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]
[3] Section 5AAA of the Act.
[4] Ibid (with effect from 14 April 2015).
[5] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well founded’. 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 the 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 or claims. The Tribunal does not have any of the responsibility or obligation to specify or assist in specifying any particulars of claim or to establish or assist in establishing the claim. Nor is the Tribunal; required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[6] Fox v Percy (2003) 214 CLR 118
[7] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which provides useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[10] UNHCR, re-issued February 2019 at [203]–[204].
In this case the Tribunal has carefully considered the applicant’s claims which are outlined above both individually and cumulatively. The Tribunal observes that the applicant has provided consistent evidence with a level of detail necessary to satisfactorily establish the relevant facts of this case. The Tribunal finds the applicant to be a reliable and credible witness who during the hearing sought to assist the Tribunal’s questioning and testing of her evidence providing consistent and immediate responses to the questions of the Tribunal. The Tribunal accepts the evidence of the applicant.
Refugee criterion – s 36(2)(a) of the Act
The Tribunal, having considered all the applicant’s claims both individually and cumulatively, does accept the applicant’s claims as to her race and political opinion and is satisfied that the applicant faces a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of an actual and/or imputed political opinion and race in all areas of her receiving country, Ethiopia. The Tribunal in this regard is satisfied that if the applicant was returned to Ethiopia that she would in the reasonably foreseeable future be identified by the Ethiopian authorities as being of Oromo ethnicity and a supporter of Oromo independence and self-government and the daughter of a long standing and senior member of the OLF who has a national and Oromo profile of espousing, promoting, organising and participating in anti-government activities within Ethiopia. The Tribunal finds on the evidence before it that the applicant in this regard cannot rely upon the Ethiopian authorities to provide protection to her and as such there are not effective protection measures available to the applicant from the Ethiopian authorities, s 5J(2). Additionally, on the evidence before the Tribunal the applicant cannot reasonably modify her behaviour of persecution in Ethiopia as such modification would involve concealing her ethnicity, s 5J(3)(ii), and altering her political beliefs, s 5J(3)(iii) of the Act.
As such the applicant, if she returns to Ethiopia faces likely arrest, detention and serious harm by the Ethiopian authorities who would view the applicant as either a terrorist or close family associate of a terrorist and would seek to illicit information from her as to the membership and activities of the OLF and/or OLA or be subject to retaliatory violence by those authorities. The Tribunal finds that the applicant’s ethnicity and actual and/or implied political opinion is the essential and significant reason for such persecution, s5J(4)(a) and that such persecution would be systematic and discriminatory conduct, s5J(4)(c) of the Act. In coming to these findings, the tribunal has carefully considered the Country information and the current political circumstances of Ethiopia which it finds is supportive of these findings.
Therefore, the Tribunal finds that the applicant’s fear of persecution is well-founded as required by s 5J of the Act, and therefore, the applicant is a refugee within the definition of s 5H of the Act.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection – s 36(2)(aa)
Having concluded the applicant does meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has not considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
decision
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Act.
David James
Senior Member
Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4787

19 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal