1921170 (Refugee)

1921170 (Refugee) [2022] AATA 4738 (25 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Narendra Sharma
CASE NUMBER:  1921170
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:David James
DATE:25 October 2022
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 October 2022 at 2:45pm
CATCHWORDS
REFUGEE – Protection visa – Ethiopia – race – Amhara ethnic group – supporters of the Coalition for Unity and Democracy – supposed actual and/or imputed political view – religion – member of the Orthodox Christian faith – difficulties do not amount to a well-founded fear of persecution – fear of persecution is not well founded – ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 417, 411, 499
Migration Regulations 1994, 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
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 31 July 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 2 November 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 1 August 2019. The applicant provided a copy of the delegate’s decision 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 13 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms B], the applicant’s daughter. 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 accompanying Statutory declaration of 15 November 2017. In the application she states the following with notations to refer to her Statutory declaration:
·Details of harm:
She was harassed, threatened by Government forces. Husband and son taken away their whereabouts are not known. Because belong to Amhara ethnic group, and, seen as opposing the government.
·As to why she cannot seek help:
Because it is well known that Amharic people who complain or seek help from the government, they are not given any help and in fact they are harassed, arrested and tortured.
·In relation to why the applicant did not try to move:
No resources, and in any case, it is the ethnicity and political views that are the reasons for bad treatment of such people, and it is not confined to any particular place.
·As to what will happen if she returns to Ethiopia:
The applicant is likely to be arrested, persecuted.
·As to the harm:
Arrest, harassment, imprisonment by government authorities because applicant is seen as opposing the regime by virtue of being Amhara.
The applicant states in her declaration of 15 November 2017, that she is aged [age] years of age and was born in Ethiopia on [date] and an Ethiopian citizen. She was married to [Mr A] and they had three children, two daughters and one son, being, [Ms B] (daughter), [Mr C] (son), and [Ms D] (daughter). She states her first daughter lives in Australia with her two children whilst her second daughter continues to reside in Ethiopia. She states she does not know the whereabouts of her husband and son.
She states her husband had a grain business and when their children grew older, they helped in the business. Their life was normal until about 2005 when they became the target of the local government forces for being opponents of the government. She states that her daughter [Ms B] was granted a refugee visa in 2015 after fleeing from her husband, [Mr E] in Ethiopia to [Country 1]. Her daughter lived in [Country 1] until she obtained her visa and then travelled to Australia.
The applicant states she was granted a visitor visa on 2 August 2017 and arrived in Australia on [date] August 2017.
The applicant states in her declaration that her claims for protection are (in summary) that:
- That her and her family have been supporters of the Coalition for Unity and Democracy (CUD) which is considered to be opposing the ruling Ethiopia People’s Revolutionary Democratic Party (EPRDF). She states that she and her family were not actively or openly supporting any particular party but did support those who campaigned for change.
- Her husband, [Mr A] started talking to like minded people about the situation in our country and the direction it was going. He did not realise that some of the people he was discussing with about the political situation were government spies who were reporting such activities to the local government members. Most of those who did not support the government were known or considered to be members of the CUD. Her husband was an ordinary person, businessman, and he felt strongly about what the government was doing. He started speaking out and he also took our son with him.
- In October 2005, mass demonstrations took place in Addis Ababa which were against the election fraud. She remembers her son, [Mr C] took part in it. The Government forces were rounding up members and supporters of the CUD. Some security personnel came to our house the next day enquiring about [Mr C] and they looked through the whole house. We later came to know that [Mr C] had escaped to Gojar Bahir Dar and we have not since heard from him and do not know his present whereabouts.
- In or about August 2007 her husband was arrested and imprisoned. He was released two weeks later and returned home telling his family that he had been beaten and tortured. She states he did not tell us everything because he looked so fearful.
- Our daughter [Ms B] was arrested by police in 2008 while attending [a] celebration, she was taken to the [police] station where she was detained for about a week and interrogated about her involvement with the CUD. We thought she had been arrested on the behest of her husband [Mr E] who was a government spy and knew about our political views. [Ms B] was often beaten by her husband and on [date] September 2008 she went to [Country 1] alone leaving her son with her husband [Mr E]. In 2015 she was granted an Australian visa. Later her son joined her in Australia where they both now reside.
- She fears harm as she belongs to the Amhara ethnic group which does not support the ruling EPRDF.
- That she has a well-founded fear of persecution because of her ethnicity and her political views.
Department interview
The applicant was interviewed by the Department on 1 February 2019.
Delegate’s decision
The delegate’s decision of 31 July 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. The delegate considered it plausible that the family supported the CUD party and had individually come to the attention of the Ethiopian authorities. However, the delegate found there was no evidence to suggest that there remained an enduring profile of interest against individual members of the family or against the family as a whole. In this regard the delegate in part relied upon the evidence of the applicant having continued to reside in Addis Ababa until 2017 during which she was never arrested, detained, or questioned in relation to her conduct or views or that of her family. As to her Amhara ethnicity the delegate relied upon Country information and was satisfied that the applicant does not face a real chance of serious harm in Ethiopia. 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 applicants: 36(2)(b) and s 36(2)(c) of the Act.
Invitation to attend hearing
On 21 September 2022 the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 13 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 11 October 2022 the applicant’s lawyers forwarded Statutory declarations dated 11 October 2022 from the applicant and her daughter [Ms B]. In the applicant’s declaration (in summary) she repeats her earlier claims and indicates that she is a single woman as her husband is presumed dead having been missing for many years and that she is an Amharic Christian Orthtodox woman. She states that her daughter [Ms D] who remains in Ethiopia moves from place to place keeping a low profile notwithstanding the applicant having a house in Addis Ababa.She states that the political situation in Ethiopia has been volatile for a long time and become very violent lately. She states she fears for her safety because of her family having been targeted by the police in the past due to their political views and Amhara ethnicity.
Her daughter [Ms B] in her Statutory declaration states (in summary) that when her mother came to Australia to visit her family, they discussed the situation in Ethiopia, and she encouraged and supported her mother in applying for protection. She states that her mother is not educated and is worried about her upcoming attendance at the Tribunal. She explains that her mother thinks a lot about her missing son and husband and is now a single woman whose life would be in danger if she returned to Ethiopia. She explains that she will support her mother and requests that her mother’s application be given favourable consideration.
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 “Amharas’ at 3.9 to 3.10 it is reported that:
The Amhara people are the second-largest ethnic group in Ethiopia, at 26.9 per cent of the population. While they reside predominantly in Amhara State, ethnic Amharas are present throughout Ethiopia, with significant populations in Oromia and SNNP states (2 million and 420,000, respectively). Nearly 1.3 million Amharas were residing in Addis Ababa at the time of the 2007 census, making them the single-largest ethnic group in the capital. Most Amharas are Orthodox Christian. Their language, Amharic, is the official national language. The Amhara governed Ethiopia for the longest period before the EPRDF came to power in 1991, including during military rule and the era of the monarchy. Like the Oromo, the Amhara felt marginalised by the Tigray under the EPRDF, and protests in Amhara State helped catalyse the resignation of Prime Minister Desalegn in February 2018. Similarly to the Oromo, Amhara nationalism has increased with Ethiopia’s democratic opening and lifting of restrictions on freedom of expression.
The Amhara are represented politically at the federal level, including in the current federal government and the senior ranks of the public service and the military (until recently Amharic was the sole working language of the federal bureaucracy). Roughly a quarter of lower house members in Federal Parliament are elected from Amhara State. The current federal president is an ethnic Amhara, and the Amhara were second only to the Oromo in their representation in the Council of Ministers at the time of publication. Political parties representing Amhara interests are active. DFAT assesses the arrest of Amharas during the 2014-18 anti-government protests was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. DFAT assesses Amharas face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. The Amhara have been the subject of ethnic-based attacks in states where they do not constitute a majority, particularly in Benishangul-Gumuz. DFAT assesses that, like most other groups, Amharas face a moderate risk of violence in areas or states where they are 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, with 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 Liberation 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 – 13 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 Mr N Sharma of Sharma Lawyers. Prior to the commencement of the review hearing, Mr Sharma provided the Tribunal with the following documents in support of the applicants case:
·DFAT Country Information Report - Ethiopia, 12 August 2020;
·Amnesty International – Ethiopia: Rape, Extra Judicial Executions, Home Set Alight in Security Operations in Amhara and Oromia, 29 May 2020;
·US State Department – US State Department Tend To See Wollega Massacre as Corollary of “Armed Conflict”, 21 June 2022;
·Eurasia Review – Ethiopia: Mass-atrocities, genocide in Oromo Region against Amhara People, 2 July 2022;
·ABC News – More than 200 Ethnic Amhara killed in Ethiopias’ Aromia Region Witnesses Say, posted Monday 2 June 2022 at 11.21am;
·United Nations UN News – UN Delegation Returns from Human Rights Fact Finding Mission in Ethiopia, 2 August 2022;
·Human Rights Watch – Ethiopia: Civilians in Western Oromia left unprotected, 31 August 2022, 12:00am; and
·Letter of support from [name], Priest in Charge for [a] Church, 12 October 2022 (which indicates the writer has been told by the applicant that she suffered psychological and physical pain in Ethiopia because of harassment and investigations including numerous house searches due to her affiliation with the CUD and the Amhara tribe).
The Tribunal having reviewed the above material provided by the applicant’s Solicitor discussed the material and summarised same to the applicant and her solicitor indicating that the material was in accordance with the Tribunal’s Country information as outlined above, and indicated generally, that the Ethiopian Government was recently involved in military operations aimed at the ethnic Oromos and Tigrayans groups and their respective liberation forces and supporters. Equally, the material identified that the Amhara had also been the subject of retaliatory violence in regional areas by members of Oromo Liberation Front (OLF) and the Oromo Liberation Army (OLA) but there was no evidence suggesting significant targeted violence by government authorities or the various ethnic liberation groups in the capital, Addis Ababa, where nearly 1.3 million Amharas reside, and are the single largest ethnic group in the capital and most being members or the orthodox Christian religion. The applicant’s solicitor agreed with this assessment but the applicant did not reply but for repeating her earlier statement to the effect that as of Amhara descent she was in danger from the Oromo who controlled the government.
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 11 October 2022 as her evidence and under questioning by the Tribunal, and with the assistance of her solicitor agreed that her claims in summary were that:
·Political - as a result of her families’ political views in the past she and her family have been targeted by police and the Ethiopian government due to her husbands’ profile and that of her family as being supportive of and/or members or the Coalition for Unity and Democracy (CUD); &
·Ethnicity - that because of her ethnicity, Amhara, and her belief that the Ethiopian government is controlled by the Oromo people, she will be persecuted if she returned to Ethiopia.
Evidence of the applicant
The applicants’ evidence was to the effect that the political situation in Ethiopia is worse now than it was five years ago, such that it is unsafe for the Amhara ethnic population. Nor is it safe for single women. The applicant states that her fear of harm is based on the fact that her family and herself have been seen and considered to be opposing the government which consists of the Oromo ethnic group.
The applicant explained that she was married to [Mr A] and they had three children, two daughters and one son. She explained her first daughter, [Ms B], who also appeared before the Tribunal to give oral evidence resided in Australia with her three children after coming to Australia as a refugee in 2015. She informed the Tribunal that her second daughter [Ms D], remains in Ethiopia and lives about three hours drive from the capital Addis Ababa. Under questioning, she informed the Tribunal that although her daughter [Ms D] has a house outside of Addis Ababa, she keeps a low profile and moves around a lot so as to avoid being identified by the authorities. In this regard and under further questioning, the applicant agreed that her daughter [Ms D] had not been the subject of any direct personal threats and/or violence by the Ethiopian authorities or any other ethnic group in Ethiopia since the applicant arrived in Australia, in August 2017. The applicant did state that her daughter [Ms D] had been threatened by her first daughter, [Ms B]’s ex-husband [Mr E]. Her evidence was that her daughter [Ms B] had been the subject of domestic violence from her husband [Mr E] who was a powerful government official. Her daughter left [Mr E] in 2004, escaping to [Country 1] where she was granted a refugee visa in 2015 allowing her to travel to Australia where she presently resides with her current partner and three children.
The applicant states that [Mr E] is angry with her and her daughter [Ms D] for supporting his former wife [Ms B] in her relocation to Australia. When questioned as to details relating to when, where and what was the specific nature of these threats, the applicant indicated that she had heard from others including her daughter that such threats had been made. Under questioning, the applicant agreed that [Mr E] had facilitated the migration of his and [Ms B]’s son from Ethiopia to Australia where he presently resides with his mother and her new family.
The applicant, when questioned as to her statement about her husband having talked to like- minded people about the political situation in Ethiopia including some government spies who had later reported his views and support for the CUD to the local government, became confused and uncertain as to what the Tribunal was asking. With the assistance of her solicitor and the rephrasing of questions, she explained that she did not know this, but rather thought that this must have been the case given her husband’s later disappearance in 2007. Her evidence was that in October 2005 her son [Mr C] took part in an anti-government demonstration and the following day government security personnel came to her house enquiring about him. Her evidence was that her son had escaped to Gojar Bahir Dar. However, under questioning she said she did not know where he had gone and has not since heard from him. However, she had heard from other people who she could not identify that her son had escaped Ethiopia. She explained that her husband had in about August 2007 been arrested and after a period of about two weeks in detention, returned home. Her evidence in relation to her husband was that several months after his return from prison, he left to go to the local markets, and has never been seen, or heard of since.
She also reported that prior to her daughter [Ms B] fleeing her husband, she had also been arrested by the Ethiopian authorities when attending [a] celebration. Her evidence was that her daughter had been interrogated about her involvement with the CUD.
In accordance with the procedure prescribed in s 424AA of the Act, the applicant was questioned as to the delegate’s decision and the information noting that [Ms B] in her 2015 interview with the Department had made no mention of her fathers’ disappearance and when asked of her parents, had indicated that they were alive and living in Ethiopia. The applicant was unable to explain why her daughter would make such a statement and reaffirmed that her husband had gone missing and was still missing with his whereabouts unknown to her.
The applicant told the Tribunal that her family home in Addis Ababa was now occupied by other people and that her furniture was being stored and cared for by her former neighbours.
Under questioning as to her returning to Ethiopia, she said she would be returning as a single elderly woman with nowhere to live and that she would be at risk of harm because of being a woman without a man’s protection and being of Amhara ethnicity in Addis Ababa where she said that the Oromo ethnic group were in control. She also explained she believed she would be in danger because her former son-in-law [Mr E] was still angry with her for her support of his former wife, her daughter [Ms B].
When questioned as to why she could not reside with her other daughter who resided outside of Addis Ababa, she repeated her earlier statement to the effect that her daughter [Ms D] often moved around to avoid trouble in her area. Her explanation for her daughter’s conduct was that her daughter had been threatened by [Mr E] and was in fear of the Oromo people in her area. As to the details relating to specific instances of threats and/or violence against her daughter [Ms D] from government officials, Oromo people and her former son-in-law [Mr E], she did not provide any reply and under further questioning informed the Tribunal that her daughter [Ms D] had not been directly threatened by [Mr E] but had rather through friends and acquaintances been told that he had made such threats.
In reply to the Tribunal raising the Country information as outlined above at paragraph 25 the applicant did not respond but for a reply as to the information relating to ‘Amharas’ and to the effect that:
At the moment in Addis Ababa the Amhara face a lot of problems and before I came to this country people were treating us Amhara badly but not it is very serious.
The applicant at the completion of her evidence submitted to the Tribunal that if she was to return to Ethiopia in the future that she would face three things; her son-in-law would kill her; that she does not have her house as the property has been taken by the Government and her furniture taken to her neighbours; and, she will be tortured and killed by the government.
Evidence of [Ms B]
[Ms B] adopted her Statutory Declaration of 11 October 2022 as her evidence and explained that she was the applicant’s daughter and supported her mother’s application for a protection visa. Her evidence was that she was a citizen of Australia and that the applicant, her mother resides with her, her partner and her three children [in] a house that she and her partner own. Further that her mother is not an educated woman and is very nervous and worried about her protection application. She stated that she is concerned about her mother being a single woman and whose life would be in danger if she returned to Ethiopia as she had seen reports from YouTube that the situation in Ethiopia is bad and especially so for single women. She states in her Declaration that she will support her mother and wishes her mother to live with her where she feels safe and where she can help her look after her young children. Under questioning in relation to the s 424AA matter raised above with the applicant, the witness confirmed that she had been interviewed by the Department in 2015. She explained that when asked about her former residence and where her son (child of [Mr E] and the witness) was living she had explained that he lived in her Father’s home in Addis Ababa. She explained to the Tribunal that there may have been some confusion as to what she was saying but she did not say or mean to communicate that her father, was at that time, living with her mother in the family home at Addis Ababa. She stated that she did not raise his disappearance at that time (interview with the department) because he often travelled away for long periods of time for his work and she was uncertain as to the circumstances of his disappearance as had earlier been reported to her by her mother. The Tribunal accepts this explanation as the Tribunal found this witness, [Ms B] to be forthright in replying to the questions of the Tribunal and she had been observed to have made concessions as to her limited knowledge of the circumstances surrounding both her father’s and brother’s unknown whereabouts. [Ms B] confirmed that her sister [Ms D] remained in Ethiopia and had not been the subject of any ethnic and/or political violence or any direct threats and/or violence by or on the direction and behest of her former husband [Mr E].
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 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.
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, but such evidence was often limited as to the applicant’s responses to questions from the Tribunal and generally by way of yes or no replies. However, the Tribunal finds the applicant to have been an honest witness, although, as submitted by her solicitor and her daughter [Ms B], a woman with limited education, comprehension and understanding. In regards to the applicant’s evidence, overall, the Tribunal finds that the applicants’ evidence and her responses were genuine throughout the hearing notwithstanding they were often vague and lacking detail and/or context.
Political

The Tribunal accepts the applicant’s evidence that her son had been involved in an anti-government demonstration and fled Ethiopia in 2005, together with her husbands’ arrest and detention in 2007 and his later disappearance that same year. Such evidence is consistent with the evidence of her daughter [Ms B] who had also been arrested whilst living in Ethiopia and questioned as to her political affiliations with the CUD. The Tribunal also accepts that her daughter was the subject of threats and violence from her then husband which caused her to flee Ethiopia and later travel to Australia as a refugee. However, the applicant continued to reside in Addis Ababa in the family home after these incidents involving her son, husband and daughter and did so until travelling to Australia in 2017 without incident. The Tribunal notes that during this time the applicant was not the subject of arrest, detention or questioning by Ethiopian authorities. Additionally, the Tribunal notes that the applicant’s daughter [Ms D] has continued to reside in Ethiopia either in Addis Abbaba or where she is presently reported to have been residing, several hours travel from Addis Ababa. The Tribunal notes that since her brother’s departure from Ethiopia and her father’s disappearance she ([Ms D]) has also not been the subject of arrest or any other politically motivated persecution. Notwithstanding the evidence of the applicant and her daughter [Ms B] that her daughter [Ms D] has had to keep a low profile there was no evidence placed before the Tribunal as to [Ms D] being the subject of arrest and/or any actual threats and/or violence. Upon further questioning the applicant indicated that her daughter [Ms D] was in danger from the Oromo people and the Ethiopian government, but again was unable to provide any independent information as to this claim. As such there was no evidence placed before the Tribunal that supported a finding that [Ms D] was actively being sought by the Ethiopian authorities or members of the Oromo community in relation to any actual and/or imputed political profile or her Amhara ethnicity.
As to the applicant’s political opinion and any actual and/or imputed political profile, it is accepted that the applicant personally holds a political opinion in which she is not supportive of both the present and most recent former Ethiopian regimes because she views such regimes to be controlled by members of the Oromo people. Such a belief is not consistent with the Country information as outlined at paragraph 25 above. In that regard the Tribunal notes that the Amhara have been subject to ethnic based attacks in states where they do not constitute a majority. However, he applicant’s home is in the capital Addis Ababa and the Country information reports that the Amhara are the single largest ethnic group in Addis Ababa with most of them being Orthodox Christian. The Tribunal finds that the applicant holds a personal fear of persecution by the Ethiopian government and members of the Oromo people in her former home of Addis Ababa, the capital of Ethiopia. However, for the reasons outlined above, the Tribunal does not accept that such fears on the part of the applicant are reasonable and finds such fears on her part are not supported by any evidence or any independent Country information. The Tribunal finds that the applicant’s personal fears are based on her own subjective mistaken belief that she will be persecuted because of her supposed actual and/or imputed political view in circumstance where she has not been the subject of any past such persecution during periods where she asserts, she was known to have an anti-government actual and/or imputed profile. The applicant’s fears in this regard are not well-founded. The Tribunal finds that there is not a real chance that the applicant will be persecuted as required by s 5J(1)(b) of the Act.
Amhara Ethnicity
As explained above, the Tribunal accepts that the applicant holds a personal subjective fear of persecution and/or harm because of her Amhara ethnicity and in particular, persecution and harm from members of the Oromo people. However, as explained above, the applicant was able to reside in her family home in Addis Ababa prior to her arrival on a visitor visa in Australia in 2017 during which time she was not the subject of any personal threats and/or violence or threats and and/or violence aimed at her property. In fact, her evidence was that as she has been away from her home for a considerable period of time, it is now occupied by another family and her furniture and other property is being held for her by her neighbours. This evidence suggests that the applicant still has friends and can expect support in Addis Ababa by her former friends, neighbours and her daughter [Ms D]. It is also noted that in her Statutory declaration of 11 October 2022 which was provided to the Tribunal as a pre-hearing submission she states at paragraph 20, of that declaration that: “My other daughter keeps moving from one place to the other. Although I have a house in Addis Ababa, my daughter cannot live in the house because it is not safe as it is controlled by.” The Tribunal understood from the applicant’s evidence that this passage from her declaration was referring to her belief that the Oromo people controlled this area, Addis Ababa where she has a house. As outlined above the Country information relating to the ‘Amhara’ does not support this assertion on the part of the applicant, and there is not any independent evidence before the Tribunal to suggest the Oromo people are persecuting members of the Amhara people in Addis Ababa. Country information as outlined above suggests that the current violence in Ethiopia is predominantly occurring throughout the regions of Oromo and Tigray and outside of the capital. Such Country information as outlined above also indicates that the Amhara are the largest ethnic group in Addis Ababa and this information does not support the applicant’s fears of persecution and harm as to her ethnicity. As such the Tribunal finds that the applicant’s fear of persecution arising from her Amhara ethnicity is not well-founded given that she had resided in her house in Addis Ababa for a significant period prior to travelling to Australia and during that time she was not subject to any ethnically motivated threats, intimidation, discrimination and/or violence. Further as outlined above the Country information does not support the applicant’s assertions and views in this regard.
Religion
Although not specifically claimed, the Tribunal has considered the matter of the applicant’s Orthodox Christian beliefs and affiliation with that church. The Tribunal notes that there was no evidence in submissions or at the hearing that the applicant, whilst residing in Addis Ababa, had been the subject of any religious persecution and/or religious based threats of violence orf any actual violence. Further, the Tribunal notes that notwithstanding the evidence that her daughter [Ms D] maintains a low profile and moves around, not always staying at her home, there was no evidence placed before the Tribunal that [Ms D] has been the subject of any religious persecution and/or religious based threats of violence or violence. Given the applicant still has a house in Addis Ababa and as outlined above has friends in Addis Ababa and she has not previously been the subject of any religious persecution in Addis Ababa, the Tribunal finds that the applicant does not face a real chance of persecution on the basis of being a member of the Orthodox Christian faith. The Tribunal finds that the applicant’s fears of persecution arising from her religious beliefs and practices are not well-founded.
Single Woman
The Tribunal accepts that the applicant’s husband is most likely deceased given the lapse of time since his disappearance together with the lack of any information as to his present whereabouts. Although not advanced specifically as a claim, it was submitted by the applicant’s solicitor and by the applicant in her closing statement and accepted by the Tribunal that on the evidence, a claim as to the applicant belonging to a particular social group of ‘single women in Ethiopia’ as provided for by s 5L of the Act, has been made. This claim is to the effect that as an older woman the applicant would likely face difficulties in supporting herself and have limited social support if she returned to Ethiopia. Given the applicant had supported herself after her husband’s disappearance and has a house in Addis Ababa where she has friends such as her neighbours who are presently looking after her furniture together with her daughter [Ms D] residing nearby it is not accepted that the applicant would face financial and social hardship if she was to return to Ethiopia. Further it is noted, with reference to the Country information as outlined above, divorce is not uncommon in urban areas and given the growing economic independence of women in urban areas and their access to government services, being a single woman is widely accepted in major areas such as Addis Ababa. On the basis of this Country information, and the reasons already identified above the Tribunal finds that the applicant does not face a real chance of persecution on the basis of being a member of this social group ‘single women in Ethiopia’, and that she does not have a well-founded fear of persecution as to this claim.
[Mr E] – former son-in-law and government official
The applicant claims that her former son-in-law has threatened her in response to her support of her daughter [Ms B], his former wife and her migration to Australia. In evidence the applicant did not provide any details or describe any specific instances of such threats. Equally as to the allegation of ongoing threats to her daughter [Ms D] in Ethiopia her evidence when questioned was to the effect that there had been rumours of such threats to her daughter. Under questioning both the applicant and her daughter [Ms B] were unable to provide any instances of actual violence, confrontations and/or direct threats being made by her former son-in-law to her daughter [Ms D] who remains in Ethiopia. Evidence before the Tribunal also indicated that [Mr E] provided the necessary permissions to allow his son to migrate to Australia so as he may live with his mother, the applicant’s daughter [Ms B] and her Australian family. The Tribunal finds that when considering the conduct of [Mr E] as to his son’s migration to Australia, it does not accept that there is a real chance that [Mr E] will harm the applicant if she was to return to Ethiopia. The Tribunal does not accept the applicant’s claimed fear of harm from [Mr E] is well-founded.
Refugee criterion – s 36(2)(a) of the Act
Based on the information before it, the Tribunal having considered all of the applicant’s claims both individually and cumulatively, and considering the cumulative effect of the applicant’s claims finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicants’ fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not refugee within the definition of s 5H of the Act.
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) of the Act.
Complimentary protection – s 36(2)(aa)
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complimentary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal has rejected all of the applicant’s claims as to having a significant actual and/or imputed political profile as a CUD member and/or supporter. Equally the Tribunal has rejected the applicant’s claims relating to her Amhara ethnicity, religion and being a single woman in Ethiopia and fearing harm from her former son-in-law [Mr E]. The Tribunal as stated above has found as to the refugee criterion that the there is no real chance that the applicant will be harmed as claimed. It therefore follows that there is also no real risk that the applicant will be harmed for the purposes of the complimentary criterion. The Tribunal in this regard does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Ethiopia, that there is a real risk that she will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additionally, there is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36 (2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criterions and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Ethiopia.
MINISTERIAL INTERVENTION
The Minister has issued guidelines explaining the circumstances in which the Minister may wish to consider exercising his or her public interest powers under S.417 of the act. The guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which exhibit one or more unique or exceptional circumstances. Departmental policy (PAM3) concerning ministerial intervention provides as a relevant factor, ‘compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person’.
In this regard, the Tribunal acknowledges the personal circumstances of the applicant who is an uneducated single woman [age] years of age who has limited family and social support in her receiving country of Ethiopia. The information before the Tribunal indicates that the applicant has been and will be supported by her daughter here in Australia and would continue to live with her daughter and her Australian family here in Australia where she enjoys the support of her daughter’s family.
The Tribunal noting the applicant’s age, lack of education, and possible limited employment prospects in Ethiopia together with her limited social contacts and notwithstanding that her other daughter resides outside of Addis Ababa finds that the applicant may when returned to Ethiopia experience some challenges in supporting herself.
When considering all of the applicant’s circumstances the Tribunal considers it appropriate to support the applicant’s request to remain in Australia on a permanent basis so as she may reside with her daughter and her daughter’s family. In considering the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM 3 ‘Ministers guidelines on Ministerial powers: ss 351, 417, 501J of the Act, and noting that s 417 of the Act gives the Minister a discretion to substitute a decision of the Tribunal with another decision that is more favourable to the applicant, if the minister thinks that it is in the public interest to do so. In that regard the Tribunal considers that the circumstances of the applicant’s case raise the following relevant matters for consideration:
·Compassionate circumstances regarding the applicant’s request to remain in Australia with her daughter and her daughter’s family where she can assist in the upbringing of her grandchildren;
·And that if she was to return to Ethiopia that given her lack of education and her additional lack of any prior employment history, she as a single woman in Ethiopia may experience difficulties in being able to financially support herself and to maintain her home in Addis Ababa. However, as explained above these difficulties do not amount to a well-founded fear of persecution, or fall within the scope of the complimentary protection criterion;
·That notwithstanding that her other daughter resides in Ethiopia, the applicant given her age, limited financial resources, her fears, and that her daughter apparently does not enjoy a settled permanent place of abode may likely face some social isolation; &
·The current unstable political situation in Ethiopia including the politically and ethnic related violence which is being committed by Government forces and various ethnic and regional opposition militia throughout the country. However, as explained above, the Tribunal finds that these difficulties do not amount to a well-founded fear of persecution or fall within the scope of the complimentary protection criterion.
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
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 4738

25 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction