1929897 (Refugee)

[2022] AATA 4312

1929897 (Refugee) [2022] AATA 4312 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929897

COUNTRY OF REFERENCE:         Ethiopia

MEMBER:Peter Haag

DATE:30 September 2022

PLACE OF DECISION:                   Melbourne

DECISION:The Tribunal remits the matter for reconsideration with   the following directions:

(i) that the first named applicant satisfies s 36(2)(a)of the Migration Act; and

(ii)       that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

The Tribunal remits the matter for reconsideration with the direction that the grant of the visa is not prevented by s 91W, s 91WA, s 91WB of the Migration Act.

Statement made on 30 September 2022 at 2:53pm

CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – mixed-race ethnicity – imputed political opinion – non-aligned – subjected to pressure to support Oromo political activists – likelihood of being barred from employment – influential Oromo-centric enemies – Ethiopian People's Revolutionary Democratic Front (EPRDF) – Oromo People's Democratic Organization (OPDO) – Oromo Democratic Party (ODP) – Oromo Liberation Army (OLA) – outbreak of civil war – political and ethnic conflict exacerbated by impact of natural disasters – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 91W, 91WA, 91WB, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Ethiopia, applied for the visas on 23 November 2016. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) is 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).

3. The first and second named applicants appeared before the Tribunal on 15 September 2022 to give evidence and present arguments.

4. 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.

5. 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.

6. 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).

7. 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.

8. 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.

   Mandatory considerations

9. 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 (DFAT) dated 12 August 2020, expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Circumstances in Ethiopia have changed dramatically since the DFAT report was published.

Section 5AAA of the Migration Act 1958

1. The Tribunal notes that pursuant to s 5AAA of the Act, it is for the review applicant to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim.

CONSIDERATION OF Claims and evidence

1. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

2. In his application for a Protection visa, the applicant claimed to be an Ethiopian citizen, born in Adama/Nazareth, Oromia, Ethiopia, on [date]. He claimed to be Oromo, and Christian (Protestant). He stated that he could read, write and speak English and Amharic, and could read and write in Oromifa. 

3. The applicant stated he was in a relationship from 22 June 2003, and married [in] 2011. At the time of application, the applicant listed his mother, [and specified siblings] as living in Ethiopia. He listed a sister and a daughter as living in [another country]. His father is deceased.

4. Before coming to Australia in 2015, the applicant lived at [Location 1] from 1985 to 1988; in [Location 2], from 1988 to 2003; in [Location 3] from 2003 to 2006; in {Location 4}, from 2006 to 2012; in [State 1, Australia] from 2012 to 2013; then in [Location 4] from 2013 to 2015 under the auspices of [University 1, Australia] (for research). The applicant returned to [State 1] in February 2015 where he resides with his wife and four children.

5. The applicant listed his occupation as ‘University Lecturer (PhD Student now)’. From June 1992 to September 1994, he was [position] at [employer]; from October 1994 to August 2004 he worked at [named] High School in [location] as a Student Guidance and Counselling Officer; from 2004 to 2006 he completed his Master level degree; and from September 2006 to September 2012, he lectured in [Field 1] at [University 2, Ethiopia]. Whilst undertaking his PhD at [University 1] the applicant worked as a farm labourer, taxi driver and volunteered with [Organisation 1].

6. The applicant attended secondary school in Adama from 1981 to 1985; he completed a Bachelor of Arts in [Field 2] in 1988 and a Master of Arts in [Field 3] from 2004 to 2006 at [University 3, Ethiopia]. As a scholarship student, the applicant commenced a PhD in [Field 4] at [University 1] in October 2012.[1]

Secondary applicants

[1] Department file [number], Doc ID [number].

1. The second named applicant claimed to be an Ethiopian citizen, born [date], in Kality/Addis Ababa, Ethiopia. According to her evidence at hearing she is part Oromo and Christian (Protestant). She stated she could read, write and speak Amharic and English.

2. She is married to the first named applicant. She was pregnant at the time of application. Her mother, sister and brother were residing in Ethiopia. Her father is deceased.

3. She lived in Addis Ababa from 1986 to 2003, in [Location 2] from June to September 2003, in [Location 3] from 2003 to 2006, then in [Location 4], from 2006 to 2015.

4. She attended primary and secondary school in Addis Ababa, and [named] College from December 2012 to September 2014 in [location], Ethiopia.

5. She listed her current occupation as ‘kitchen hand’. She stated that she was not in paid employment until January 2016, when she worked as a [occupation] in [State 1].[2]

   [2] Department file [number], Doc ID [number].

6. The third named applicant claimed to be an Ethiopian citizen, born on [date], in [Location 4], Ethiopia. She is the daughter of the first and second named applicants. She stated she could speak, read and write in English, and could speak Amhara. She lived in [Location 4] from 2007 to 2015. She is a school student in [State 1].[3]

   [3] Department file [number], Doc ID [number].

7. The fourth named applicant claimed to be an Ethiopian citizen, born on [date], in [Location 4], Ethiopia. He is the son of the first and second named applicants. He stated that he could speak, read and write in English. He lived in [Location 4] from 2010 to 2015. He is attending primary school in [State 1].[4]

   [4] Department file [number], Doc ID [number].

8. The fifth named applicant claimed to be an Ethiopian citizen, born on [date], in [State 1], Australia. He is the youngest child of the first and second named applicants.[5]

   [5] Department file [number], Doc ID [number].

9. A sixth child was born to the first and second applicants on [date]. As the child was born after the delegate’s decision was made, he is not included in the applicant’s visa application or this application for review.[6]

   [6] Tribunal file 1929897, Doc ID 8247143.

Applicants’ identities

1. The applicants provided the Department with:

a.The applicant’s original Ethiopian passport,[7] certified copies of the applicant’s [State 1] driver’s licence, Working with Vulnerable People card, [University 1] student card and [Organisation 1] card;[8]

b.A certified copy an Ethiopian birth certificate (issued [date]) for the third named applicant;[9]

c.Certified copies of an Ethiopian passport and an Ethiopian birth certificate (issued [date]) for the fourth named applicant;[10] and

d.A certified copy of a birth certificate for the fifth named applicant, registered in [State 1] on [date].[11]

[7] Department file [number], Doc ID [number].

[8] Department file [number], Doc ID [number].

[9] Department file [number], Doc ID [number].

[10] Department file [number], Doc IDs [number]and [number].

[11] Department file [number], Doc ID [number].

1. The documents provided by the applicants are consistent with their evidence to the Tribunal in relation to their identities. There is no evidence to suggest that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicants the Tribunal finds that they are nationals and citizens of Ethiopia, and as such the protection claims will be assessed against Ethiopia as the country of reference and ‘receiving country’ respectively.

Migration history

1. The applicant last arrived in Melbourne, Australia [in] February 2015, on a TU-574 student visa after departing Bole International Airport, Addis Ababa, on [date] February 2015.[12] He had previously entered Australia on a TU-574 visa, issued in July 2012.[13]

   [12] Department file [number], Doc ID [number].

   [13] Delegate’s Decision Record.

2. The applicant departed Australia [in] July 2013 and returned to Ethiopia to conduct field work for his PhD before re-entering Australia in February 2015.

3. The applicant’s Protection visa application was signed and dated 7 November 2016 and stamped by the Department as received on 23 November 2016. The delegate refused the application for a Protection visa on 1 October 2019. The Tribunal notes the delegate’s Decision Record gives the date of application as 2 December 2016.[14]

Secondary applicants

[14] Department file [number], Doc ID [number].

1. The second, third and fourth named applicants arrived in Melbourne, Australia, [in] February 2015 as dependants on a TU-574 student visa after departing Bole International Airport, Addis Ababa, on [date] February 2015. They did not list any previous travel to other countries.[15]

   [15] Department file [number], Doc ID [number]; delegate’s Decision Record.

Claims for protection and supporting documents

1. As part of his application for protection, the applicant made the following claims:[16]

   [16] Department file [number], Doc ID [number].

89. Why did you leave that country(s)? Provide specific details

I had been working as a lecturer, researcher & [Support Center 1] officer in [School 1 at University 2] from Sep, 2006 - Sep, 2012. Ever since my career as a university lecturer and researcher, I had been always fascinated by the world class research works in Australian Universities and I had always tried to get scholarship in one of them. In 2007, I was offered enrollment and PhD research scholarship at [University 4, Australia] but failed for I did not get support from my university as I was not the member of the ruling party. As a matter of fact I am not a member or supporter or fan of any political party or ideology in Ethiopia. [University 2] was nominated as a Model University in the country. [Key staff were hired] from foreign countries to [develop it] to international standards. [Professor A] is currently serving [University 2 in a key role]. In 2012, I was offered full [scholarship] by [University 1]. By then, thanks to the [foreign academic in Position 1] who used to allow study leaves for university teachers with scholarship regardless of political view point and affiliation to the ruling party. After so much hardships, the top management staffs of [School 1] who are also cell leaders and members of the ruling party EPRDF/OPDO within [University 2] trying to sabotage my chance, I was able to leave the country secretly with the help of my then office secretary ([Ms B]), closely following up my case and informing me about the conspiracy against me in our school. The authorities named: [Dr C], the then dean of the school; [Dr D], the then head of Teachers Development Program; [Dr E], the then Admin Head of the School were deliberately hesitant to approve my study leave by not assigning another person in place of my additional academic administration position as a [Support Center 1] head (an office which I served for about 2 years in [University 2]) and also by delaying the transfer of office properties and equipments to the University store on time. Fortunately, as I was informed the danger that I could be facing beforehand and scheduled my departure carefully and secretly, I could leave the country without any difficulties at the airport. For the details of the aforementioned story, you may kindly refer to the email conversation between [Dr D] (one of the authorities) and me after arrival in Hobart. [Ms B] took full responsibility of transferring the property to the University store after I left the country. [Ms B] later informed me that she received repeated mistreatments from the schools' authorities for assisting me in escaping their setups. So, this is why and how I left my country.

90. What do you think will happen to you if you return to that country(s)?

Although I would very much love to go back home and serve my community in Ethiopia after completing my [PhD], given the existing mass arrest, operation and violation of human rights of particularly the OROMO and AMHARA people by the current regime (TPLF) and the repetitive harms and mistreatments I had faced before leaving my country, I expect that I would be arrested and consequently my children and other family members would suffer a lot since I am the only person to provide for them.

I have a reasonable ground to expect these consequences as I had proved this about two years ago when I went back to Ethiopia for the second time for a PhD field work. My journey back then was mandatory despite all possible risks of suffering harms, mistreatments and imprisonment. First of all, at that time, while I was gathering data for my PhD projects in [Location 4], My close workmates ([Ms B], Executive secretary of [Support Center 1], the office I used to ran in [University 2]), [named], the former administration officer of [School 1] and [named], the then admin officer & store manager of [School 1] informed me that authorities and party leaders in [University 2] ([Dr E], the then Administration Head of [School 1], [Dr D] and [Dr C], Dean of [School 1] were again closely following me and had planned a setup with false accusation to block my departure and possibly arrest me before leaving upon completion of my field work.

Secondly, in addition to this, I had also secretly received a tangible information from a close friend of mine [named] (A lecturer at [University 2] and an active member of EPRDF/SEPDM, who also helped me in collecting data) that the top authorities in [University 2] deliberately wanted to hold me accountable in connection with Oromo students' protests occurred in [University 2] on May, [2014] by falsely associating: (1). The money that I paid to the students for participating in my research (PhD [study]) as being a support to the protest against the Government. (2). The regular study visits with the research participants at the temporary research site/office in [University 2] and my close professional relationship with students as being concealed meetings and part of the protest. In fact, that money was a research fund assigned by [University 1] from [Professor F]'s research fund for conducting the field work in Ethiopia.

Consequently, as an initial step, the dean of the school ([Dr C]) evicted me from the temporary office provided by [University 2] (which [Professor A] approved at that time) for a research purpose, which in fact had certain influence on the progress of my PhD project. As I was so worried and concerned about the circumstances I immediately reported this to my principal supervisor ([Professor F]) and to [University 1] as major impediment to the progress of data collection in Ethiopia (the comments of my chief supervisor in the attached application for extension of my candidature may confirm this matter. Please see the attached).

91 Did you experience harm in that country(s)?

(1) They organized false accusation to block my departure from that country and put me in jail twice (in Sept, 2012 and in Dec, 2014). (The main actors behind this were [Dr E] (the former Admin head of [School 1], [Dr C], the former head of the same school and [Dr D] my former immediate boss (Head of Teachers Development Program (TDP) in [University 2]. (2). They denied my promotion to assistant professorship when I had all credentials. Obviously, for not being the member of the ruling party. (The people from [School 1]. [named], the former Department [Head], refused to approve my request for Assistant professorship as per the University's regulation and [Dr E], [Dr D] endorsed the department's wrong decision. (3) [Dr D] and [Dr E] suspended [the money] I earned from conducting summer and extension classes for which I legally assigned my wife to collect after my departure. (4). they denied the half salary that I was entitled to get paid for four years as per Higher Education regulation as a PhD study leaver. So, I had to send money fortnightly to my family from my scholarship salary I was receiving from [University 1] after arrival.

92 Did you seek help within the country(s) after the harm?

No.

I did not think that I would get any help from anyone else since the decision was from the top authorities. So, my decision was to escape before they took the worst measure (like detention) which could have impacted the life of my family and I negatively.

93 Did you move. or try to move, to another part of that country(s) to seek safety?

No.

No I did not try to move to any other part of the country to seek help. As I had clashes with authorities in the University, I wouldn't be able to get clearance letter from the University where I was working for the reasons I mentioned elsewhere above. Therefore, even though I had no criminal records (local police check attached), support letters from the political party leaders (In other words political party affiliation with EPRDF/OPDO) and clearance paper from previous employer and were mandatory to be safe and/or get jobs in Universities or other workplaces elsewhere in the country.

94 Do you think you will be harmed or mistreated if you return to that country(s)?

Yes.

Given that I previously managed to escape their plan to block my departure to Australia and to possibly arrest me as well as the current situation of mass arrest, discrimination and even killings of OROMOS who are not members or supporters of the ruling party (regime), I will most definitely be arrested even on arrival. I have received reliable information about this from my work colleagues in [University 2]. The people that would most likely be responsible in facilitating these harms would be [Dr E], [Dr D] (who was formerly my immediate boss in [University 2] and who now is the head of [a school] in [another university]) and [Dr C].

95 Do you think the authorities of that country(s) can and will protect you if you go back?

No.

No, I don't think so. None of the authorities would be willing to protect me at all. The people who I mentioned above as potential individuals who would mistreat or harm me are the loyal members of the current regime (OPDO/EPRDF) and they are part of the authorities in that country.

96 Do you think you would be able to relocate within that country(s)?

No, I wouldn't be able to relocate: The main reason being (1). Nearly all top authorities in work places elsewhere in the country as well as in OROMIA region (including in all Universities) are from the ruling party (EPRDF/OPDO etc.). Nearly all top administrative positions and even top academic positions in Universities are held by members of the ruling party for the sake of securing the authority of the regime. So, relocation would not help at all. 2. Secondly, as I am not the member of either the ruling party (with 100% seats of the parliament) or any of the non-functional opposition parties in the country, it is very unlikely that I will get any support from the authorities. Therefore, I will be at greater risk of experiencing harms anywhere in that country at any time in the future as long as the current regime is in power.

1. The secondary applicants did not make separate claims and did not give evidence in the review hearing.

2. A Departmental interview was conducted with the applicant on 27 March 2019.

3. The applicant provided the following documents to the Department:

a.Three emails dated 8 October 2012 and 9 October 2012, between the applicant and [Dr D], as referred to in question 89 of the applicant’s Protection visa application (claims for protection);[17]

[17] Department file [number], Doc ID [number].

b.The applicant’s resume, dated November 2016;[18]

[18] Department file [number], Doc ID [number].

c.A candidature form from [University 1], which appears to be signed and dated by the applicant on 27 July 2015;[19]

[19] Department file [number], Doc ID [number]..

d.A certified copy of a Certificate of Good Conduct in the name of the applicant, issued by Federal Police Crime Investigation Sector, Forensic Investigation Directorate, Ethiopian Federal Police, dated [date];[20]

[20] Department file [number], Doc ID [number]..

e.Certified copies of a Bachelor of Arts degree ([Field 2]) awarded to the applicant in 1988, and a Master of Arts [degree] awarded to the applicant in 2006, by [University 3];[21]

[21] Department file [number], Doc ID [number]..

f.A certified copy of a Certificate of Award to the applicant from the [University 2] Student Union, for ‘being a model teacher and for his/her incredible contributions and commitments in the teaching-learning process in his/her school’;[22]

[22] Department file [number], Doc ID [number]..

g.Certified copies of certificates in the name of the applicant for the following: Train the Trainer Workshop (2009); Computer and Internet Basics Training (2003); eTech/eLearning (2010); EQUIP Workshop Series (2005-2006);[23]

h.Certified copies of certificates in the name of the applicant from [Organisation 1] in recognition of contributions as a volunteer, dated 10 May 2016, and a statement of attainment, issued August 2015;[24]

1. A certified copy of an Amharic [Diploma], awarded to the second named applicant by [named] College Ethiopia on 6 September 2016;[25]

j.An ‘Application to Change Candidature or Scholarship Details’ form in the name of the applicant from [University 1], including details of the difficulties faced by the applicant while conducting field work in Ethiopia (referred to in question 90 of the application for protection);[26]

k.Certified copy of a certificate of marriage for the first and second named applicants, issued in [Ethiopia], stating the applicants were married [in] June 2003, and registered [in] July 2011 in [Location 4];[27]

l.A screenshot of the ‘Other Scholarships’ page from the website of [University 1];[28]

m.The front and back cover of a book by [the first named applicant], with a photograph of the applicant on the back cover.[29]

[23] Department file [number], Doc ID [number]..

[24] Department file [number], Doc ID [number]..

[25] Department file [number], Doc ID [number]..

[26] Department file [number], Doc ID [number]..

[27] Department file [number], Doc ID [number]..

[28] Department file [number], Doc ID [number]..

[29] Department file [number], Doc ID [number]..

1. On 22 October 2019, the applicant submitted the following documents to the Tribunal with his application for review:

a.A detailed response to the delegate’s decision, submitting that: his former supervisors at [University 2] did not support his scholarship or career development; he had to return to Ethiopia to complete his field work despite the risks; his refusal to join a political party and his good relationship with students and dissemination of information to them made him a political target; there is still university property in his name; the refusal to approve his study leave in a reasonable time was discriminatory; his loss of wages can be verified by his wife and former secretary; the comments on the scholarship extension form were made by the applicant’s supervisors at [University 1], and the delegate misunderstood the comments to be from his former supervisors at [University 2]; financial support for his travel was approved by the [Position 1] of [University 2], who is [a foreigner], not his former supervisors; the email correspondence with his former supervisor is authentic; he did not work with his former supervisors during his field work trip and they had no input regarding his scholarship extension; he will not be able to get a clearance letter from his former University to obtain employment elsewhere in Ethiopia; he provided false information about his date of departure to his former boss informally; and that he and his family be considered for complementary protection;

b.An ‘Application to Change Candidature or Scholarship Details’ form in the name of the applicant from [University 1], including details of the difficulties faced by the applicant while conducting field work in Ethiopia (as previously submitted to the Department), including the signatures of [Professor F] and [another professor], signed 27 July 2015 and 7 August 2015;

c.Screenshot of email correspondence previously submitted to the Department,[30] purportedly between the applicant and his former supervisor, [Dr D], dated ‘10/8/2012’;

[30] See Department file [number], Doc ID [number].

1. On 13 August 2022, the applicant submitted the following to the Tribunal:

a.An email from the applicant forwarded from his [University 1] account containing the emails between himself and [Dr D] as described above, in response to concerns of legitimacy of the email address by the delegate;[31]

b.A new protection claim, based on the ‘devastating political and socioeconomic crisis’ in Ethiopia, and the difficulty his children would have assimilating to those circumstances if returned to Ethiopia;[32]

c.A submission regarding ‘Evidence related to Section 4. University Property & Section 6: Lost wages’, in reference to the delegate’s decision;[33]

d.A translated receipt from The Federal Democratic Republic of Ethiopia, Ministry of Finance and Economic Development, Department [University 2], for article or properties received by [named] from [the first named applicant] on 18 December 2012, and a letter dated 4 January 2013 from the second named applicant to the [University 2] Academic Vice President applying to collect pay on behalf of the applicant;[34]

e.Photograph of original receipt for articles or property received as described in paragraph 35d; [35]

f.Photograph of handwritten letter in Amharic script;[36]

g.Document titled ‘The current socio political and economic crisis of Ethiopia’, drawing from various news and social media sources and a link to a YouTube video.[37] The Tribunal clicked on this link and found the video unavailable;

[31] Tribunal file 192897, Doc ID 10071162.

[32] Tribunal file 192897, Doc ID 10097303.

[33] Tribunal file 192897, Doc ID 10097304.

[34] Tribunal file 192897, Doc ID 10097305.

[35] Tribunal file 192897, Doc ID 10097306.

[36] Tribunal file 192897, Doc ID 10097307.

[37] Tribunal file 192897, Doc IDs 10097308 and 10097309.

1. On 15 August 2022 the applicant submitted the following to the Tribunal:

a.A Statement Regarding the Testimony of [Professor F];[38]

b.A signed letter from [Professor F], [School 2], [University 1], dated 14 August 2022;[39]

c.Applicant’s PhD thesis, [title];[40]

d.Published article: [the first named applicant], [two other named authors, Dr G and Professor H] & [Professor F], [article title and publication details];[41]

e.[the first named applicant] , [Professor F] , [Dr G and Professor H], [article title and publication details];[42]

f.[the first named applicant], [Dr G], [Professor H], [Professor F], [article title and publication details];[43]

g.[the first named applicant], [Professor F], [Dr G], [Professor H], [article title and publication details].[44]

[38] Tribunal file 192897, Doc ID 10098512.

[39] Tribunal file 192897, Doc ID 10098513.

[40] Tribunal file 192897, Doc ID 10098514.

[41] Tribunal file 192897, Doc ID 10098515.

[42] Tribunal file 192897, Doc ID 10098516.

[43] Tribunal file 192897, Doc ID 10098517.

[44] Tribunal file 192897, Doc ID 10098518.

1. On 16 August 2022 the applicant submitted the following to the Tribunal:

a.‘Applicant Statement on the Section of Lost Wages’, responding to reasoning of the delegate in the Decision Record that concluded the applicant did not lose wages;[45]

b.Summary transaction sent from Western Union to the applicant, dated 7 January 2013, showing that $425 was received by the second named applicant.[46]

[45] Tribunal file 192897, Doc ID 10102618.

[46] Tribunal file 192897, Doc ID 10102619.

1. Immediately before the hearing on 15 September 2022, the applicant provided to the Tribunal documents that demonstrate the applicant properly accounted to [University 1] for funds he expended in Ethiopia on empirical research for his Doctoral dissertation. At that time the applicant was a beneficiary of a full university scholarship awarded to him by the University. The applicant successfully completed the [PhD] under the supervision of [Professor F].

2. The first and second named applicants, being the parents of the remaining applicants, consented to [the third and fourth named applicants] remaining in the hearing room throughout the hearing. The applicant informed the Tribunal that only his wife, the second named applicant would give evidence in the hearing. [The fifth named applicant], is [age] years of age. Understandably he was restless, and, with the consent of his parents, he remained outside the hearing room with his mother until she returned to the hearing room to give evidence. Thereafter he remained in the hearing room. 

3. [The third and fourth named applicants] were attentive to the proceedings.

The decision under review

1. The applicant provided a copy of the record of the primary decision to the Tribunal and the Tribunal has read the decision.

2. The primary decision refusing to grant the applicants a Protection visa was made on 1 October 2019.  Circumstances in Ethiopia have changed markedly since the primary decision was made. The current circumstances in Ethiopia are relevant and material to the decision in this review.

3. Additionally, the Tribunal has available to it Country information that was not available to the primary decision maker for example, the DFAT country information report on Ethiopia dated 12 August 2020, and other country information reports pertaining to the current circumstances in Ethiopia. The country information available to the Tribunal and common knowledge makes plain that Ethiopia is in a state of civil war; experiencing widespread interethnic violence; severe drought; severe depletion of foreign currency reserves; fuel, water, and food shortages: these circumstances have precipitated large-scale displacement, and in-country migration and relocation of the domestic population of Ethiopia.

Consideration of the claims and the evidence

1. At hearing the applicant gave oral evidence in support of his application and he also relied on the written material he provided to the Department and the Tribunal.  The applicant called one witness, namely his wife, [Ms I], a secondary applicant in this review. [Ms I] preferred to be addressed in the hearing as [Ms J], consequently in the Tribunal’s reasons for decision the applicant’s wife is referred to as [Ms J].

2. The applicant was unrepresented in this review. Consequently, it behoves the Tribunal to ensure that the evidence is scrutinised carefully to discern any claims that may arise from the evidence before the Tribunal, and to consider those claims, whether they have been expressly articulated by the applicant.

The determinative issue

1. Does the evidence establish to the satisfaction of the Tribunal, the existence of a real chance the applicant will be subjected to one or more of the following serious harms: a threat to his life or liberty; significant physical harassment; significant ill treatment; significant economic hardship that threatens his capacity to subsist?

Consideration of the evidence and claims

1. The evidence given by the applicant and his wife satisfies the Tribunal that the applicant was employed by [University 2], in [Location 4], Ethiopia, immediately before he travelled to [State 1] to take up the PhD scholarship awarded to him by [University 1].

2. The Tribunal accepts that [University 2] underwent significant restructuring during the two years before the applicant was awarded the scholarship.

3. The university was restructured for the purpose of elevating the standard of teaching and scholarship at the university. As part of the restructure [international academics] were recruited outside Ethiopia and employed in [key roles]. The externally recruited [staff] were tasked to revitalise and lift the academic standing of the University. One of the externally recruited [staff] was [Professor A] who was recruited from [country].

4. In evidence before the Tribunal, it became apparent that the restructuring of the university and employment of foreign born and trained professors to [key positions] was not well received by several resident Ethiopian academics. They felt their authority and academic standing was under challenge by the foreign appointees. Rivalry of this sort is consistent with the common course of human experience.

5. The applicant’s application to [University 1] for the PhD scholarship was supported by [Professor A], a foreign professor, and the [Position 1] of the University at that time, but it was not supported by a three senior Ethiopian academics (named in the applicant’s claims) in the faculty in which he was a lecturer and researcher.

6. Previously the applicant was prevented from taking up a scholarship provisionally awarded to him by [University 4], Australia, because senior academics at the university in which he was teaching in Ethiopia refused to support his application.

7. The Tribunal also accepts the applicant’s evidence that he was supported by [Professor A] as part of a programme to elevate the academic standing of [University 2]. The Tribunal also accepts that it is reasonably likely the applicant was frustrated by senior members of the university staff to whom he was immediately accountable in order to undermine both the applicant and his sponsor, the then [Position 1] of the University, [Professor A].

8. According to the evidence the Ethiopian academics who acted to frustrate the applicant in his endeavours to take up the PhD scholarship, asserted that the applicant had unlawfully retained university property, such as computers, and other equipment the university had issued to the applicant.

9. The applicant, supported by the evidence of [Ms J], gave detailed evidence, and produced documents that demonstrated he had arranged through another academic at [University 2] to return the property, and it was returned after he left Ethiopia to take up his scholarship in [State 1].

10. The applicant did not return the property himself prior to his departure from Ethiopia. He did not do so because he believed the personal animosity in the university towards him, and the endeavours by the academic staff in his faculty to frustrate his access to the scholarship, along with the efforts of [Professor A] to lift the academic standing of the university, meant it was best for him to leave his University post (and Ethiopia) on a date earlier than the departure date he advised to the faculty.

11. Central to the decision to refuse the visa application was the finding by the primary decision maker that the applicant’s supervisors at [University 2] supported his scholarship. This finding led to adverse findings about the applicant’s credibility and the rejection of material aspects of his claims and evidence.

12. In support of the forgoing conclusions, the primary decision maker was of the opinion that the applicant’s written application to [University 1] for an extension of time in which to complete his scholarship was supported by members of the academic staff at [University 2], being the [University 2] staff the primary decision maker described as the applicant’s supervisors at [University 2]. This conclusion was drawn from the comments that appear on page three of the application wherein the applicant’s supervisor supports the grant of the application. A copy of this document forms part of the Department file. The applicant provided a copy of the same document to the Tribunal.

13. The application for an extension of time carries the letterhead of [University 1] and it was sent to [University 1] from Ethiopia. The supervisor who supported the application was not named in the application. In respect of this issue the applicant provided additional documentary evidence to the Tribunal which removes from doubt the identity of the academic who supported the applicant being granted more time in which to complete his PhD dissertation.

1. The application for an extension of time was supported by [Professor F], a member of the academic staff at [University 1] and the applicant’s primary academic supervisor at the university. The application was not supported by members of the applicant’s faculty at [University 2].

2. [Professor F] in correspondence dated 14 August 2022 addressed to the Tribunal, informed the Tribunal that he is an Associate Professor employed by [University 1] in [School 2]. In conjunction with other members of the academic staff at the university, [Professor F] supervised [the first named applicant]’s PhD studies to completion.

3. [Professor F] support’s the applicant’s evidence that during his PhD, he published (in conjunction with his supervisors) four articles in highly ranked academic journals. [Professor F] makes clear that each of the applicant’s supervisors were employed at all material times by [University 1], and that they are still employed at the University.

4. [Professor F] also makes clear that [University 1] was the sole provider of the applicant’s scholarship and that no support for the scholarship was provided by [University 2]. There was never any contact between the applicant’s PhD supervisor and his supporting supervisors – [Professor H], [Dr G] – and staff at the Applicant’s University in Ethiopia. This evidence is significant, and it is unfortunate that the identity of the supervisor who supported the applicant’s application for more time in which to complete his PhD was not expressly identified in the application itself. If that had been the case several significant findings adverse to the applicant’s credibility, and significant parts of his evidence and his protection claims may not have been made by the primary decision maker.

5. The Tribunal is satisfied that [Professor F] is the supervisor who supported the applicant’s request for an extension of time and that the application was not supported by any member of the academic staff of [University 2].

6. The evidence before the Tribunal leads the Tribunal to a different view of the likely attitude of senior members of the applicant’s faculty at [University 2] to the PhD scholarship being awarded to the applicant. [Professor A] supported the scholarship; however, he was not the applicant’s faculty supervisor either at [University 2] or in respect of the applicant’s PhD.   

7. The Tribunal accepts the applicant’s evidence that his PhD studies were supervised entirely by [Professor F] and other highly credentialed staff at [University 1].

8. The evidence available to the Tribunal establishes somewhat surprisingly, that senior members of staff in the faculty in which the applicant was employed at [University 2] did not engage with the applicant’s supervisors at [University 1]. This factor indicates senior academics in [University 2] did not view the applicant’s studies at [University 1] as an opportunity to strengthen the applicant’s academic credentials and the academic standing of [University 2]. 

9. Logic and common sense suggest that senior members of the faculty in [University 2] in which the applicant was a lecturer and researcher would engage with the applicant’s PhD supervisor in [University 1] if they supported the applicant. This inference is strengthened by the fact that the applicant’s PhD dissertation addressed [specified issues] in Ethiopia and other countries in Africa. This absence of engagement between senior staff in the applicant’s faculty in [University 2] and his PhD supervisor, as a matter of logic and common sense, indicates the applicant’s senior faculty colleagues did not support him or his overseas studies and lends weight to the applicant’s evidence in that regard. The Tribunal will return to this issue.

10. The Tribunal heard evidence from [the second named applicant, Ms J]. She gave detailed and cohesive evidence. The Tribunal is satisfied [Ms J] gave accurate evidence.

11. [Ms J] gave evidence about the economic hardship she suffered because senior members of the applicant’s faculty in [University 2] refused to pay her the full amount of salary and monetary entitlements owned to the applicant despite the applicant instructing the university in writing to make the payment. The university withheld the funds from both the applicant and [Ms J].

12. [Ms J] explained the hardship this circumstance visited upon her and her young children. This evidence supported the applicant’s evidence on this issue.

13. The Tribunal accepts the evidence given by [Ms J] and the applicant and is of the view that it is likely senior members of the applicant’s faculty at [University 2] were unsupportive of the applicant being afforded the advantage of overseas study; that they intentionally withheld from [Ms J] money owed to the applicant, irrespective of the hardship and distress their decision imposed on [Ms J], her young children and the applicant in [State 1]. 

14. The applicant gave evidence about the political allegiance of his faculty supervisors at [University 2]. The applicant’s evidence considered in conjunction with the DFAT country information report satisfies the Tribunal that the senior members of the applicant’s faculty in [University 2] were hostile to the applicant because he refused to join the Oromo aligned political party they supported.

15. According to the applicant’s evidence, the supervisors who frustrated him were deeply involved in Oromo politics. They were active senior members, and supporters of the Oromo People’s Democratic Organisation (OPDO), which later changed its name to the Oromo Democratic Party (ODP). To be properly assessed, this evidence should be considered in the context of the political circumstances that prevailed in Ethiopia when the applicant applied for the PhD scholarship.

16. According to the DFAT country information report (August 2020) prior to the applicant first departing Ethiopia for Australia to undertake his PhD in 2012, Ethiopia was controlled by the Ethiopian People’s Revolutionary Party (EPRDF).

17. The EPRDF was dominated by ethnic Tigrayans, an ethnic minority, who exercised political power and influence that was disproportionate to their numbers, in contrast to the representation of other ethnic groups such as the Oromo people. Oromos constitute the largest ethnic group in Ethiopia. The EPRDF restricted political dissent, the media, and civic freedoms for most of its time in power. The EPRDF and their supporters used brutal methods to maintain their dominance in the country.

18. According to the DFAT report, the power and outsized influenced wielded by Tigrayans fostered resentment amongst the considerably larger Amhara ethnic group and, in particular, the Oromo ethnic group. This resentment stimulated entrenched ethnic rivalries and divisions. These simmering ethnic and political rivalries were evident around 2012 and erupted in 2014 with large scale anti-government protests in Oromo, the applicant’s home State, and subsequently spread to other States. A state of emergency was declared. After much blood shed and interethnic violence the EPRFD government was dissolved in 2018 and replaced by the Ethiopian Prosperity Party (EPP) led by Prime Minister Abiy Ahmed an ethnic Oromo.

19. According to the applicant’s evidence, the senior academics who endeavoured to prevent him from leaving Ethiopia and take up his PhD scholarship in Australia wanted him to join their Oromo centric political activities, and to recruit students to their cause. The applicant refused to do so. He made clear that he rejected their politics and their Oromo ethnocentrism. The DFAT country information demonstrates that the political circumstances and ethnic enmities at that time were volatile. In these circumstances the Tribunal is of the view that it is reasonably likely individuals such as the applicant, in a position to influence the political attitudes of university students in a university located in Oromia, would be subjected to pressure to support Oromo political activists and their representative organisations. The applicant refused to do so.

20. The applicant’s evidence about his refusal to align himself with the OPDO and Oromo centric political activities is consistent with his ethnicity: he is only part Oromo. The Tribunal accepts that the applicant’s true societal interest scholarship, research and teaching in order to advance society generally, and that he opposes ethnic politics, ethnic division and armed conflict

21. The evidence demonstrates that the applicant is of mixed race and ethnicity. His mother is [European] and his late father Oromo. In the context of the prevailing unstable ethnic rivalries and political climate in Ethiopia leading up to 2018, it is reasonable to form the view it is likely the applicant would refuse to be drawn to ethnocentric politics. The Tribunal is of the view it is more likely he would refuse to support senior members of his faculty who were ethnic Oromo and aligned with the OPDF and ethnocentric activism.

22. It is also reasonably likely the applicant was viewed as an outsider and of doubtful ethnic loyalty to the Oromo people because he is not truly ethnic Oromo; he is a person of mixed race.   

23. According to the applicant’s evidence supported by country information available to the Tribunal, civil war erupted in Ethiopia in November 2020. Moreover, this circumstance is a matter of widespread reports by reliable international media. The civil war was initiated by the State of Tigray based on the belief that the Federal Government was actively discriminating against Tigray and Tigrayans.

24. According to the United Nations High Commission for Refugees (UNHCR) report titled ‘Positions on Returns to Ethiopia’ dated March 2022, the consequences of the widespread political and ethnic conflict in Ethiopia have been exacerbated by the impact of a range of natural disasters including droughts, and locust infestations[47].

    [47] The information and opinions articulated in the cited UNHCR report are consistent with the report by the United Nations Office of the High Commissioner for Human Rights titled ‘UN experts warn of potential for further atrocities amid resumption of conflict in Ethiopia’ with the date 19 September 2022.

25. According to the cited UNHCR report there are reasonable grounds to believe that all parties to the Tigrayan conflict have committed violations of international human rights, humanitarian and refugee law, some of which may amount to war crimes against humanity. Included in the report is compelling evidence of widespread unlawful killings, extra-judicial killings, torture, sexual and gender-based violence carried out by ethnic armed militias and the Federal government’s military forces. 

26. The conflict between the Tigrayan forces and their allies and the Federal Government’s armed forces and its allies has spread from Tigray into parts of the State of Amhara and Afar. 

27. The cited report also highlights the Oromo Liberation Army (OLA), an armed group is allied to the Tigrayan armed forces and opposes the Federal government and treated by the federal authorities as an effective and ruthless fighting force.

28. In April 2021 the Federal government declared the OLA a terrorist organisation. In forming an alliance with the Tigrayan armed forces, the OLA has carried out armed attacks on the Federal government’s armed forces, government officials and security forces.

29. The cited UNHCR report informs that the Federal military apparatus has carried out extensive aerial drone attacks in the Oromo region in January 2022. There have been alleged extra judicial killings carried out by security forces operating in the Oromo region. There have been reports of extra judicial killings and abductions of civilians by the OLA in the Oromo region. The Federal armed forces have intensified and expanded their offensive against the OLA.

30. There have been unverified reports of forced conscription by the armed forces of the Federal government in [the region] in which the applicant resided before travelling to [State 1]. The applicant’s wife and children now live with the applicant in [State 1].

31. According to the cited UNHCR report, hundreds of thousands of persons have been displaced by the civil war, interethnic violence, natural disasters, and famine. Many of the displaced Ethiopians have moved into the State of Oromia. This would include Addis Ababa the capital city of Ethiopia, a location that the DFAT reports is a place to which Ethiopians migrate from the regions in pursuit of economic betterment.

32. The cited UNHCR report states:

    In December 2021, the Famine Early Warning Systems Network (FEWS NET) warned of record levels of humanitarian assistance needs in Ethiopia in 2022.53 That same month the World Food Programme (WFP) reported that it was facing a major funding shortfall over the next six months, threatening its ability to meet the critical food and nutrition needs of millions of food insecure Ethiopians and refugees. The combined effects of conflict, drought, flooding, desert locust invasions, market disruptions, currency depreciation, high food prices and the COVID-19 pandemic have left an estimated 13.6 million people across the country food insecure.54 A total of 22.3 million people in Ethiopia will be targeted for humanitarian assistance in 2022.

33. According to the applicant’s evidence, he has no place to live with his dependant wife and children, or network of friends or supporters in Addis Ababa, the city to which he would be returned if he were removed to Ethiopia.

34. According to the applicant’s evidence, even if Ethiopia were not in the grips of civil war, famine and the other the other economic deprivations specifically referred to in paragraphs 93 and 94 of this decision, according to the applicant’s evidence,  residual animosity at [University 2] would impact on the applicant’s capacity to subsist in Ethiopia.

35. According to the applicant’s evidence, he would be barred from employment as a university teacher and a schoolteacher unless he was given what he described as a ‘clearance or positive reference’ from the Department in which he taught at [University 2]. There is no country information available to the Tribunal that contradicts the applicant’s evidence. In a society in which personal contacts, and political and ethnic allegiances are to the forefront of life in the reduced circumstances that prevail in Ethiopia at present, the Tribunal is of the view the applicant’s evidence is plausible.

36. The Tribunal is satisfied that if the applicant is removed to Ethiopia now or in the reasonably foreseeable future, he would be unable to travel safely with his family (comprising his four young children and his wife) to [Location 4], the last place in which he resided in Ethiopia, without facing a real chance of war-related threats to his life, or liberty, and to his physical wellbeing.  

37. The Tribunal is satisfied that the applicant would not be regarded as loyal to any ethnic group or political organisation in Ethiopia. He is not Oromo. He is of mixed ethnicities. The applicant rejected alignment and identification with the Oromo people, he rejected being identified with any ethnicity, and he rejected giving political allegiance to Oromo centric political movements in both university and in his day-to-day life. This is likely to be a problematic set of circumstances for the applicant in the context of civil war and ethnically motivated rivalry and violence, where ethnic loyalty is likely to be highly significant to the assessment of the warring ethnic groups and the Federal authorities will make of the applicant upon his return to Ethiopia, as he endeavours to renter the country, obtain a place to live, and employment and protection for himself and his family.

38. The Tribunal is satisfied there is residual animosity to the applicant amongst senior academics currently occupying influential positions in [University 2], because the applicant refused to align himself with their Oromo political organisation and allegiances. The Tribunal is satisfied of the existence of a real chance the applicant’s enemies in [University 2] would identify him to Oromo State security officials and the Federal security apparatus, and potentially the OLA, as a person of no fixed allegiance to any political party or ethnic group, returning after long absences in Australia dating back to 2012, who is a thief (the university property) and untrustworthy.

39. The Tribunal is satisfied by the evidence considered in combination with the DFAT country information report, and other country information referred to in this decision, that in the current circumstances in Ethiopia the applicant (being a person without ethnic allies, well established political allegiances or strong family connections) is likely to face a real chance of significant physical harassment, and significant physical ill treatment by the state military apparatus and armed ethnic militia groups including the OLA now and in the reasonably foreseeable future.

40. This view is a reasonably foreseeable consequence of there being no ethnic group, political organisation, [University 2], or other influential organisation, apparent on the available evidence and county information, that the applicant would be able to be call upon to vouch for his loyalty, and to protect from harm whilst trying to re-establish himself and his family in Ethiopia in the context of a widespread break down in government authority, the rule of law, the deprivations of war, famine and mass internal migration.

41. Moreover, the Tribunal is not satisfied the applicant would simply be viewed by state and armed non-state actors as a neutral party and left alone. His Oromo enemies in the academic world in Ethiopia would soon learn of his return. In the view of the tribunal there exists a reasonable likelihood they would take positive action against the applicant to cause him harm, just as they did in relation to his endeavours to study at [University 4] and later [University 1]. 

42. Furthermore, in the natural course of human experience in a country gripped by ethnic rivalries and wide-spread armed conflict, driven by political and ethnic enmities famine, and mass internal migration, it is reasonable to apprehend that a person, namely the applicant, being a non-aligned person lacking established political alliances, tribal support, strong family support, who has influential Oromo-centric  enemies in the university in which he was last employed, faces a real chance of serious harm if he is returned to Ethiopia now or in the reasonably foreseeable future.

43. Moreover, the Tribunal is satisfied the harm would involve systematic and discriminatory conduct.

Findings

1. The evidence considered as a whole and in combination with the cited country information, is sufficient to establish to the satisfaction of the Tribunal the existence of a real chance the applicant would be subjected to serious harm for reasons of his mixed-race ethnicity, and his non-aligned political opinions, being reasons that meet the meet the provisions of s 5J(1)(a) of the Act, if he is removed to Ethiopia now or in the reasonably foreseeable future. Accordingly, the applicant satisfies the criterion in s 36(2)(a) of the Act.

2. Consequently, the Tribunal is satisfied the applicant has a well-founded fear of persecution for reasons specified in s 5J(1) of the Act. Accordingly, the Tribunal is satisfied the applicant meets the definition of refugee as set out is s 5H of the Act.

3. Further, the evidence and country information considered together satisfies the Tribunal that the real chance of serious harm to the applicant relates to all areas of Ethiopia.

4. Furthermore, the Tribunal is satisfied that in the prevailing circumstances in Ethiopia, effective protection would not be available to the applicant in Ethiopia now or in the reasonably foreseeable future.

5. The Tribunal is satisfied that the [second, third, fourth, and fifth named applicants] are members of the same the family unit (MFU) of [the first named applicant], as defined in Regulation 1.12 of the Migration Regulations 1994 and therefore, they also members of the same family unit as defined in s5(1) of the Act.

1. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations, and satisfies the criterion set out in s 36(2)(a) of the Act.

2. The Tribunal is not satisfied that the other applicants namely the second, third, fourth and fifth named applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or s 36 (2) (aa) of the Act. However, the Tribunal is satisfied that [the second named applicant] is the applicant’s wife, [the third named applicant] is the applicant’s daughter, [the fourth and fifth named applicants] are the applicant’s sons, and they are members of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of the first named applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(i) of the Act is met and the remaining criteria for the visa are met.

   DECISION

3. The Tribunal remits the matter for reconsideration with the following directions:

   ·that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

   ·that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, based on membership of the same family unit as the first named applicant.

4. The Tribunal remits the matter for reconsideration with the direction that the grant of the visas is not prevented by s 91W, s 91WA, s 91WB of the Act.

Peter Haag

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.

…

5HMeaning 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.

…

5JMeaning 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.

1. 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.

1. 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:

1. 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;

2. conceal his or her true race, ethnicity, nationality or country of origin;

3. alter his or her political beliefs or conceal his or her true political beliefs;

4. conceal a physical, psychological or intellectual disability;

5. enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

6. alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

1. 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.

1. 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.

1. 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.

5KMembership 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:

1. the first person has ever experienced; or

2. 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.

5LMembership 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:

1. the characteristic is an innate or immutable characteristic;

2. the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

3. the characteristic distinguishes the group from society; and

(d)the characteristic is not a fear of persecution.

5LAEffective 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:

1. the relevant State; or

2. 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.

1. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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:

1. is mentioned in paragraph (a); and

2. 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:

1. is mentioned in paragraph (aa); and

2. 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.

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