1930270 (Refugee)

[2022] AATA 5118

1930270 (Refugee) [2022] AATA 5118 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1930270

COUNTRY OF REFERENCE:                   Ethiopia

MEMBER:David James

DATE:21 December 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 21 December 2022 at 9:43am

CATCHWORDS
REFUGEE – protection visa – Ethiopia – ethnicity and political opinion – Oromo and member of opposition party – first applicant wounded in demonstration, arrested, beaten and interrogated – harassment and threats at university and in workplace – relatives arrested and questioned – continued party membership and social media activity in Australia – detailed and credible evidence – members of family unit – applicant child born in home country and non-applicant child born in Australia – country information – recent deterioration in security and political tensions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (2), (3)(ii), (iii), (6), 36(2)(a), (b), 65, 411(1)(c)
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816

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 dependants.

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 16 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 24 November 2015. The delegate refused to grant the visas on the basis that the applicants were not found to be persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or
   s 36(2)(aa) of the Act and were not members 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: s 36(2(b) and s 36(2)(c) of the Act. As the delegate refused to grant protection visas to the applicants the dependent child applicant did not satisfy s 36(2)(b) or s 36(2)(c) of the Act as she is not a member of the same family unit as a non-citizen who holds a protection visa of the same class applied for in the application and who engages Australia’s protection obligations under s 36(2)(a) or s36(2(aa) of the Act.

3. The applicants filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal), on 25 October 2019. The applicants provided a copy of the delegate’s decision with their application for review.

4. As noted above, the applicants 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 applicants protection visas 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.

5. The applicants appeared before the Tribunal on 13 December 2022 to give oral evidence and present arguments.

   Criteria for a protection visa

6. 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.

7. 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.

8. 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).

9. 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.

10. 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.

11. 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

12. 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) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

13. The issues in this review are whether the applicants have a well-founded fear of persecution for one of the 5 reasons set out in s 5J(1) of the Act, and there is a real chance that if the applicants were returned to Ethiopia they 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 applicants will suffer significant harm as defined in s 36(2A) of the Act.

    Applicants’ claims for protection

    Applicant 1

14. Applicant 1 when applying for the visa explained that he is Oromo and came to Australia [in] June 2015 on a student visa to join his wife who was studying in Australia.

15. Whilst in Australia he took the opportunity to seek protection from the Australian government as he had been detained many times in Ethiopia. He states that prior to coming to Australia, he was working at [Employer 1]. He further states that he was born on [Date] in [Location 1], in the Ambo district of Oromia. He is from a Protestant Christian family of 10. He has 4 brothers and 3 sisters, and his father and mother are farmers and live in [Location 1] in the Ambo district of Oromia. One of his brothers is a farmer whilst 2 others are employed. His 2 sisters are married to agricultural workers in that area. He was married to his wife, applicant 2 [in] 2012 and they have a [daughter], the dependent applicant.

16. He states that he grew up in a family who are deeply rooted in the Oromo culture and traditions and has been learning about Oromo culture and history since he was in primary school and was an active member of [an] Oromo [Club]. He was arrested without warrant by the security forces in 2002 for taking part in a demonstration in which he states [students] and teachers were arrested and taken to [a] police station. Whilst in custody he was tortured and later released after 3 months when he was suspended from his studies for one year. He explains that after his release from prison he joined the Oromo National Congress (ONC) in 2002, which later became the Oromo People’s Congress after the 2005 Ethiopian elections. This party is now known as the Oromo Federalist Congress (OFC) after it merged with the Oromo Federalist Democratic Movement in 2010.

17. He states he used to organise and disseminate the political program of policies, vision and mission of the party (OFC) and he was involved in raising awareness of the youth in his school and in and around the Ambo district. In 2004 during a period of demonstrations involving the arrest of many Oromos, he states that at [School] he was involved in a demonstration within the school grounds demanding the release of thousands of Oromos who had been arrested. During these demonstrations in April 2004, he states that many students were injured from live bullets and batons by the Tigray People’s Liberation Front (TPLF) who were in government. He explained that he was wounded [in] April 2004 and arrested. He states that there were more than [number] Oromo students, teachers and intellectuals who were arrested with him at that time. He states that it was alleged that he had been organising the protests with some fellow students. During his detention he had been tortured. He was later released [in] October 2004, without charge or any court proceedings having been commenced. He states that after his release in October 2004 he left Ambo and moved to Finfinne (Addis Ababa). While in Finfinne he was accepted for study at [University 1] where in December 2004 he commenced his Bachelor of [Subject 1].

18. He states that the TPLF forcibly recruited members from the universities and if students did not join, they would not be hired in government and/or private companies. He states that those who refused to support the TPLF, were labelled as members of opposing political parties such as the OFC and were ineligible for employment. He states that he changed his name from [Original name] to [Current name] in December 2007 so that he could not be tracked by the government and not be excluded from employment as his name and his school and university profile were registered with the TPLF.

19. In 2012 he commenced his Master of [Subject 1 specialisation 2] at [Institution] and he graduated in 2014.

20. He states that in 2014 and 2015 he was harassed and threatened by the TPLF security forces due to his continued participation in the campaigns of the OFC for the 2015 election. Also, at his workplace where the company mainly [does job tasks] in the Oromia region, he was forced to produce a false report and to accept poor quality [specialised] equipment. He states that after raising issues in relation to work not being completed in accordance with the relevant standards the cadres started following him and warned him to keep quiet and told him that they would take action against him if he continued to raise these issues.

21. He states that now he has a family and a responsibility to his family, he cannot allow himself to be killed by the TPLF or to again be imprisoned. Recently as the government has implemented its Finfinne (Addis Ababa) Master Plan they have arrested opposition party members, students, teachers, and farmers who have been identified and viewed as a pro-Oromo and anti-Ethiopian government.

    Claims

22. Therefore, he states if he is forced to return to Oromia he will definitely be detained, prosecuted and face a long term of imprisonment and/or cruel, inhumane treatment at the hands of the Ethiopian government (TPLF). He states that during his previous detention, harassment and threats his political party and family tried to report his suffering to organisations such as Human Rights Watch and the Red Cross Society. However, the Ethiopian government did not allow these organisations to help him and the only assistance he received was a Red Cross Society visit in prison in 2004, where they provided him with some hygiene materials. He states that there is no safe place within Ethiopia where he could seek protection and so relocation would not be practical for him and his family.

    Applicant 2

23. Applicant 2 when applying for the visa stated that she had left her country to study a Master of [Subject 2] in Australia. She states in her attachment to the application that she was born on
    [Date] in [Town], Oromo, Ethiopia. She is from a Protestant Christian family and has 2 brothers and 4 sisters. Her father is [an Occupation 1], and her mother is a farmer, and they live in [Location 2] in the Dire Inchini district of Oromia. One of her brothers is [an Occupation 2] and the other brother is studying. She stated that 2 of her sisters are studying at university and the other 2 are in primary school. She married her husband, applicant 1 [in] 2012 and they have a [Age]-year-old daughter.

24. She states that upon the completion of her secondary schooling she attended [University 2] and completed a Bachelor of [Subject 2]. After her graduation in 2008, she started her career as [a specialised Occupation 3] at [Employer 2] where she worked for 5 years and 6 months. Then in January 2015 she joined [University 3,  Australia] where she commenced her Master of [Subject 1 specialisation 4] graduating in December 2015.

25. She states that her father was arrested [in] November 2015 due to his intervention and protection of school children who were being killed by security forces while they were protesting against the government. Her sister [Ms A] who is studying at university was also arrested with many other Oromo students. Currently her family are suffering because they are Oromo and the TPLF armed forces are committing crimes against their society (Oromia) including rape, and the plundering by breaking into the houses of Oromo individuals.

    Claims

26. She claims that if she returned to Ethiopia her fate will be the same as those who have been killed, arrested and raped as she is Oromo. Further as she is returning from Australia where many Oromos have protested against the brutality of the current ruling government (TPLF) they may arrest her at the airport suspecting that she has protested in Australia. She believes that if she returns to Ethiopia, she will definitely face a long term of imprisonment and/or cruel, inhumane treatment at the hands of the Ethiopian government. She further states that in Ethiopia there is no safe place for her to seek protection and relocation would not be practical and reasonable because the situation throughout Ethiopia is all the same. She fears that she will be tortured, arrested and prosecuted if she returns to Ethiopia as the current government is a dictatorship and does not follow international human rights law and there is no authority within Ethiopia that will protect her if she were to return to Ethiopia.

    Department interview

27. The applicants (1 and 2) were interviewed by the Department on 11 January 2019.

    Delegate’s decision

28. The delegate’s decision of 16 October 2019 to refuse the protection visas was made on the information before the delegate. The delegate found that the applicants are of Oromo ethnicity, and that applicant 1 had been arrested and detained for protesting and political activities during his secondary and university education. The delegate accepted that the applicants possess pro-Oromo and anti-Ethiopian political opinions and that applicant 1 had expressed his political opinion on social media and had attended a protest in Brisbane in 2016. However, the delegate was not satisfied that applicant 1 was considered a high-profile political dissident and that his political profile had not been enduring and that he was not of interest to the Ethiopian authorities at the time of his departure from Ethiopia. The delegate was not satisfied that the applicants were refugees as defined by s 5H (1) of the Act. The delegate was not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in
    s 36(2)(a) of the Act. Further, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Ethiopia there was a real risk that the applicants would suffer significant harm as outlined in s 36(2)(aa) of the Act. Therefore, the delegate found that the applicants were not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(aa) of the Act.

    Submission to the Tribunal – 3 November 2019

29. In a submission to the Tribunal dated 3 November 2019 applicant 1 again stated he was Oromo and that he grew up being harassed, tortured and arrested many times and had been exposed to inhuman treatment by the Ethiopian government forces and that these situations had continued until he left the country in 2015. He states that the Prime Minister Abiy Ahmed has finished his honeymoon in the office and has started killing Oromo for resisting and criticising his government. He submits that the situation in Ethiopia for the Oromo has escalated more than ever and references a list of names who are purported to have been killed and injured on 23 October 2019 in his hometown of Ambo by government forces.

30. He states that he is a member of the OFC and has continued his political participation in Australia and has a connection with OFC members and leaders in Ethiopia and abroad. Further he has served the Oromo community in Brisbane and has been expressing his anger and opinion about the Ethiopian government on [Social media] and he believes that the Ethiopian government has information about him as they have an agent in every country. He states that he and his family will definitely face atrocity if they are forced to return to Ethiopia and it is clear to him that he and his family will be abused with total impunity by the forces of the government. Attached to this submission was a series of internet references to articles and reports about the Ethiopian Prime Minister and the security situation and recent demonstrations and violence in Ethiopia.

    Invitation to attend hearing

31. On 25 November 2022 the Tribunal invited the applicants to attend a review hearing at the Brisbane Registry on 13 December 2022. This correspondence advised the applicants that the Tribunal had considered all the material before it relating to their application but that it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The invitation stated that if the applicants did not attend the hearing, the Tribunal may make a decision on the case without further notice.

    Hearing response and submission of 1 December 2022

32. Attached to the applicants’ hearing response of 1 December 2022, in which they confirmed their intention to attend the hearing, give oral evidence and present arguments, they provided the Tribunal with the Country of Origin Information Report on ‘Ethiopia – An update on the security and human rights situation since February 2022’, dated September 2022 from the Danish Immigration Service together with a support letter from [Organisation] for consideration by the Tribunal.

    Country information

1. 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’ at 2.50 to 2.59 it notes that at 2.50 to 2.52 it is reported that:

   The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018. Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date. 

   Inter-ethnic clashes along the border between Oromia and Somali states have displaced more than 1 million people since 2017. Clashes have subsided, but continue to flare up sporadically. In August 2018, the federal government deployed forces to quell riots in Jijiga, the capital of Somali State, and surrounding areas. The riots were triggered by the arrest of the state president, and involved the targeting of non-Somalis and Christians at least 30 people died and 140,000 were displaced. Youths loyal to the former state president, belonging to a group called the Heego, were behind the riots. The security situation in Somali State has improved significantly since. In February 2019, federal parliament adopted a proclamation establishing a national reconciliation commission to promote dialogue and encourage resolution of inter-ethnic disputes.

   The return from exile of previously-banned groups and individuals has catalysed unrest in Oromia State. In September 2018, the return of the OLF provoked intra-Oromo clashes and the targeting of homes and businesses belonging to non-Oromos. At least 70 people were killed and 15,000 displaced. The OLF has yet to disarm completely, and some OLF factions engage in armed clashes with government forces, particularly in western areas of Oromia State. Armed OLF factions have reportedly engaged in criminal activities, including extorting businesses and conducting bank robberies in western Oromia. In October 2019, at least 86 people died during riots triggered by claims – made via Facebook – that the federal government was endangering the personal security of Jawar Mohammed, a prominent Oromo activist and founder of the Oromo Media Network (OMN). Jawar, an advocate for greater rights for the Oromo people who was previously allied to Prime Minister Abiy (but who is now a prominent critic), helped organise from his US base the 2014-18 protests that precipitated the resignation of the previous government. Jawar returned to Ethiopia in August 2018.

   And under the heading of ‘Oromos’ at 3.5 to 3.8 at 3.8 it states that:

   While there was widespread violence against, and detention of, protesters across Oromia State between 2014 and 2018, DFAT assesses this was not ethnically motivated, but reflected the then-federal government’s sensitivity to political opposition. The situation for government critics, including ethnic Oromos, has improved significantly since April 2018. DFAT assesses that individuals who are part of, or have links to, armed OLF factions engaged in criminal activities and clashes with government forces are likely to be of interest to the authorities, and face a moderate risk of arrest and detention. The risk of arrest and detention faced by OLF members who participate peacefully in the political process is low. DFAT assesses, overall, Oromos face a low risk of official discrimination based on their ethnicity, including with respect to employment in the public sector. DFAT assesses that, excluding in Addis Ababa, Oromos face a moderate risk of violence in areas or states where they constitute a minority.

   ‘Religion’ is 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, 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.

   ‘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, 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.

2. Notwithstanding the DFAT Country information above, the Tribunal is mindful of recent changes in Ethiopia and notes that Human Rights Watch has reported 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 states that:

   The human rights and humanitarian situation in Ethiopia deteriorated further in 2021, which civilians impacted by devastating conflict in Tigray, security force abuses, attacks by armed groups, and deadly ethnic violence in other regions. The Government’s activities in Tigray contributed to growing international pressure to address accountability for rights abuse…

   …Extrajudicial killings, mass arrests, arbitrary detentions, and violence against civilians occurred in other regions facing unrest and insecurity.

   In Oromia, reports of arrests, detention and summary executions of Oromo civilians accused of supporting the armed rebel group, the Oromo Libersation Army (OLA), continued. In May, security forces in Dembi Dollo, western Oromia, violently apprehended a 17 year-old-boy and then summarily executing him in public…

   …Ethiopian authorities passed a nationwide state of emergency November 4, granting the government far-reaching powers that heighten the risks of arbitrary arrest and detention against at-risk communities, but could have a chilling effect on humanitarian activities, induce self-censorship by the media, activist groups, and human rights organisations, and risk emboldening abusive elements within the security forces.[2]

   [2] World Report 2022: Ethiopia | Human Rights Watch (hrw.org) - >

   The Conversation in their 2 October 2018 article, ‘How ethnic violence is destabilising Ethiopia’s reform gains’ which was submitted by the primary applicant to the Tribunal on 17 November 2018, provides under the heading ‘Causes of the violence’ that:

   …Soon after the coalition came together, it introduced an ethnic federal system of government to try and address historic ethnic grievances by giving Ethiopians different regions the chance to administer themselves. This federal system allowed regions to organise along tribal lines. It also led to the rise of afternoon nationalist movements, which eventually weakened Ethiopians national unity.

   Ethnic intolerance grew and gained momentum and ethnic violence became a permanent fixture of Ethiopian politics….

   …So, the issues of federal governance, negative ethnicity, and debates over land ownership have been a long-standing thorn in the Ethiopians leaderships flash. What remains to be seen is how Abby’s administration will deal with it can the new premier resolve the issues and keep his reforms agenda on course.[3]

   [3] >

   The United Nations in their UN News, ‘Global perspective Human stories’ reported on 2 November 2022 that:

   A peace deal between the Ethiopian Government and the Tigray People’s Liberation Front (TPLF) signed on Wednesday in South Africa, represents “a critical first step” towards ending the brutal two year war, said the UN chief…

   …The Secretary General urges all Ethiopians and the international community to support the bold step taken today by the Federal Government of Ethiopia and the Tigrayan leadership”, the statement said…

   The Secretary-General pledged his support to the parties in the implementation of the agreement and urged both sides “to continue with negotiations on the outstanding issues in a spirit of reconciliation in order to reach a lasting political settlement, silence the guns and put the country back on the path to peace and stability.”

   He appealed to all stakeholders to seize the opportunity provided by the ceasefire, “to scale up humanitarian assistance to all civilians in need and to restore the desperately needed public services.[4]

   [4] >

   The New York Times, in a report by Abdi Latif Dahir on 3 November 2022 titled ‘Details in Ethiopia’s Peace Deal Reveal Clear Winners and Losers’ noted that:

   NAIROBI, Kenya — Ethiopia began taking shaky steps toward peace on Thursday, a day after the government and forces in the northern Tigray region agreed to a permanent cessation of hostilities, a surprising turn of events that could end a two-year civil war — one of the world’s bloodiest contemporary conflicts.

   The deal appears to be a decisive victory for Ethiopia’s government and its prime minister, Abiy Ahmed, the Nobel Peace Prize winner who prosecuted the war — and could be hard for leaders of the Tigray region to sell to their people, experts on the region said on Thursday…

   …The war, which broke out on Nov. 3, 2020, was seen as an effort by Mr. Abiy to exert control over leaders of the restive Tigray region, who had bucked his authority by holding a local election. Leaders of the Tigrayan ethnic group, while a minority in Ethiopia, for nearly three decades were the principle power bloc in the Ethiopian government — but Mr. Abiy pushed them out soon after he came to power in 2018.[5]

   [5] >

   The Conversation on 20 July 2022 in their article, ‘Ethiopia’s other conflict: what’s driving the violence in Oromia?’ reported that:

   In Oromia’s latest wave of violence in June 2022, Al Jazeera, the New York Times and Reuters reported that hundreds of people had been killed by the Oromo Liberation Army in Wallaga, Oromio.

   These news reports labelled all the victims Amharas, members of Ethiopia’s second-largest ethno-national group. The Oromo are the largest…

   …Prime Minister Ahmed has taken the side of Amhara expansionists.

   Ahmed came to power in 2018 mainly because of the Oromo struggle but later turned against the movement. His vision is of a centralised state rather than self-determination for Ethiopia’s different groups…

   … The state’s ideology of “Ethiopianism” has been used to justify the subordination of the Oromo and other colonised peoples. It has empowered the class that dominates the bureaucracy, army, culture, Orthodox Christianity and Ethiopian colonial-political economy.[6]

   [6] >

   In the UK Visa and Immigration’s 22 March 2022 Guidance Report, ‘Country policy and information note: Oromos, the Oromo Liberation Front and the Oromo Liberation Army, Ethiopia, March 2022 (accessible)’ it provided under the heading of ‘OLF and OLA’ that:

   In general, a person with a significant history of membership or support for the OLF, or perceived by the authorities to have a significant history of membership or support, is likely to be at risk of persecution or serious harm. Whether an individual’s association with the OLF is ‘significant’ is fact sensitive and each case must be considered on its individual merits, with the onus on the claimant to demonstrate that they face a risk of persecution.

   Under the heading ‘Oromo ethnic group’:

   Approximately 38 million people of Oromo ethnicity live in Ethiopia, around a third of the overall population (see Demographics).

   While there have been a number of incidents involving the state and the Oromo community in 2020 and 2021, resulting in violence and arrests, these were largely linked to either an association or suspected association with the OLF or OLA, participation in protests against the detention of Oromo opposition party members, or as a consequence of the aftermath of Hachalu’s death (see Violence in Oromia region).

   Not all protests have an anti-government agenda. Rallies have also taken place in Addis Ababa and other towns in Oromia in support of Abiy and in opposition to the TPLF-OLA alliance (see Protests and riots in Oromia during 2020 and 2021: ACLED and Protests and unrest in Oromia during 2020 and 2021: other sources.

   As such, in general the treatment of Oromos (by virtue of ethnicity alone) is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm. The onus is on the person to demonstrate otherwise, based on their past experiences, including any arrests, and their individual circumstances, for example, suspected links to the OLA or OLF.[7]

   [7] hearing – 29 November 2022

3. The Tribunal hearing was conducted at the Brisbane Registry in the English and Oromo languages. The applicants appeared in person and applicants 1 and 2 gave oral evidence to the Tribunal.

4. The Tribunal explained to the applicants that the hearing would consider the applicants’ application for protection visas afresh. The applicants confirmed in reply to the Tribunal that they understood the relevant statutory framework and concepts as to the refugee and complementary protection criterion. However, when questioned further as to their understanding of that the criterion they requested further explanation from the Tribunal. The Tribunal then provided an explanation of the relevant statutory framework as to the refugee and complementary protection criterion to the applicants (applicant 1 and 2) who after same indicated that they understood the criterion.

   Applicant 1

5. Applicant 1 described his background and life in Ethiopia together with his reasons for traveling to Australia in accordance with his visa application and the accompanying letter of 23 November 2015. He explained his fears as he had outlined in his submission of 4 November 2019.

6. He stated that prior to arriving in Australia he had been working for a semi-government [company] in the Oromia region of Ethiopia. He had been working in the [Specialised] field, [doing a job task]. He explained he has 4 brothers and 3 sisters still living in Ethiopia. His parents are also still living in Ethiopia on the family farm in [Location 1] in the Ambo District of Oromia. As his wife had obtained [a] Scholarship to study her Master of [Subject 2] in Australia at [University 3], Brisbane, he had followed and joined her in Australia with their daughter, applicant 3, the dependent applicant. He explained that he was currently working in [an] industry at [Suburb] Brisbane where he was [doing a job task]. He stated he had been working in the [business] for the last 5 years and prior to that he had worked for a [company] [doing job task]. Initially upon arriving in Australia and prior to obtaining employment he had been caring for his daughter while his wife completed her scholarship (Master’s qualification in [Specialisation]).

1. As to his fears regarding returning to Ethiopia, he explained that as he had a history of supporting and demonstrating against the Ethiopian central government and supporting Oromo independence and self-government he would be targeted and likely, given his absence from Ethiopia; arrested, tortured and questioned as to his continued membership of the OFC and what support he had provided whilst overseas. He further explained that although the former government which had been controlled by the TPLF was no longer in power and the new government led by Prime Minister Abiy who is of Oromo ethnicity was now in power, the government officials had not changed, and they had continued to implement their former policies and enforce control over those members of the Oromo community who did not overtly support the Tigray government officials.

2. Applicant 1 explained that he had whilst in Australia maintained his membership of the OFC and maintained contact with other members in Ethiopia and continued to express his support of the OFC and Oromo independence through his [Social media] account via liking anti-government comments and positing his own opinions about Ethiopian events and in particular the government’s oppression and killing of Oromo people and the Addis Ababa Master Plan which involved the acquisition of Oromo farm land for the urban expansion of Addis Ababa.

3. In response to questions from the Tribunal as to his [Social media] postings the applicant 1 produced and offered his mobile phone to the Tribunal for inspection and unlocked the phone and opened his personal [Social media] account. The Tribunal after perusing the account found that applicant 1 had over 1400 friends sharing and following each other’s posts, and that his group were all apparently active in pro-Oromo politics and critical of the Ethiopian government and in particular the government’s Addis Ababa Master plan.

4. As to applicant 1’s arrests in Ethiopia he explained that in 2002 when [Age] years of age and a student, he took part in a demonstration in which 200 students and teachers were arrested. He stated that he had been held in custody for 3 months and had first been taken to the [Building] which was used by the regional authorities as a detention and interrogation centre. Whilst at the [building] he had for the first week been interrogated 3 to 4 times. He explained that during each session the interrogators had chained his hands together, stood on his hands and hit him with a steel bar and at other times punched and kicked him. In explaining his injuries, he identified that he had bruises or scars on his [body] from the strikes from the round metal bars. Upon the request of the Tribunal, applicant 1 lifted his [clothing] and showed [the] Tribunal. The Tribunal observed that there were a series of darkened bruised like areas and/or scars across applicant 1’s [body], consistent with, in the view of the Tribunal, injuries that had resulted from beatings that applicant 1 had described to the Tribunal.

5. Applicant 1 stated that initially the questioning at the [building] was in relation to who had taken part in the demonstrations and who had been behind the demonstrations and had counselled applicant 1 and others to demonstrate. Applicant 1 explained that there had not been an external organiser but rather the students and teachers had themselves organised a demonstration for which he and others were arrested and subsequently questioned and tortured at the [building]. He explained that after one month at the [building] where he had been interrogated and beaten including an incident in which [he sustained other injuries], he was then transferred to the [police station] for a further period of 2 months. He stated that at the police station there were no beatings or assaults but that the interrogations continued but not as frequently and only when some new information had been obtained by the police causing them to further question him. He was then released from the police station without charge or any further court appearances.

6. [In] April 2004, whilst he was still studying at [School] and [Age] years of age, he was again involved in a demonstration on school premises demanding the release of Oromo prisoners. He was again arrested while a number of his fellow demonstrators were injured from live bullets having been fired by the authorities. On this occasion he was arrested with another 60 fellow students and teachers. He was again taken to the [Building] for a month where he was interrogated as to his and the involvement of others in planning and organising the student demonstration. He explained that again he had at times had his hands bound and then been punched, kicked and struck with batons and steel piping. Again, he was later during his detention, transferred to the Ambo police station and then the local prison. He states that while in prison he was able to take the university entry exams and upon his release from custody [in] October 2004 he left Ambo and re-located to Finfinne (Addis Ababa).

7. After being accepted into [University 1] he was able to commence and later complete a Bachelor of [Subject 2]. In December 2007 fearing that he would not be able to obtain employment after his studies, as he had refused to join and/or support the TPLF and given his history of arrests by the government, he changed his name from [Original name] to [Current name].

8. Applicant 1 also stated that in 2008 whilst completing his studies at [University 1] he was again arrested for his involvement in a celebration of the Oromo New Year and was taken to the City Police station where he was detained for one month without charge. He stated that he was not beaten on this occasion but was questioned as to his involvement in the celebration and as to who had organised the students and coordinated the celebration together with his OFC membership which he had held since 2002.

9. In 2012 applicant 1 after taking an exam with his then employer, a [company] which worked for and with the government, commenced his Master of [Subject 1 specialisation 2] at [Institution]. Later in 2014 he graduated from that course. Prior to coming to Australia to be with his wife while she completed her Master’s studies, he was the subject of harassment by government and TPLF officials in his place of work, [Employer]. He had been employed to [do a job task]. He states when he and others raised work related conditions, TPLF company personnel and government officials threatened him and referred to his past arrest history and his long-term membership of the OFC.

10. Applicant 1 in reply to the Tribunal’s questions as to his ability to obtain a passport and depart for Australia explained that at first, he was unable to obtain a passport as he did not have an Ethiopian National Identity Card. He explained that when he had tried to have one issued to him the government officials at the local Kebele refused to do so due to his past history of arrests and record of having been involved in anti-government demonstrations. He explained it was only after he had returned to the Kebele with his brother who is [an Occupation 4], and was known to certain officials, that he was able to obtain an Identity Card which then allowed him to obtain a passport. He stated that once he had obtained a passport, he was able to book his travel for himself and his daughter to come to Australia and join his wife. Further he stated that as he had a passport and an approved Identity Card, he did not have any difficulties at the airport in departing Ethiopia.

11. Applicant 1 also told the Tribunal that recently one of his brothers, an [Occupation 3] in Ethiopia, had been approached by local government officials about working for a government organisation. However, his brother declined the offer of employment expressing his desire to continue to work in the private [sector]. He states that his brother reported to him that the officials castigated him (his brother) for refusing government work and told him that he was acting like or was just like his brother (applicant 1) who was an anti-government demonstrator and had been working with the OFC overseas against the Ethiopian government. His brother also reported that these officials also asked about the current whereabouts of applicant 1 and sought details of his plans to return to Ethiopia.

12. In concluding his evidence, applicant 1 told the Tribunal that Ethiopia was presently a dangerous place and Oromo was a war zone in which friends of his are still being arrested for their membership and involvement in organisations such as the OFC. He stated as an OFC member his former work colleagues and other TPLF supporters in government would continue to harass him and given his views as to Oromo independence and/or self-government and his opposition to the Addis Ababa Master Plan he would be targeted and monitored and most likely arrested, detained, interrogated and tortured as it would be thought he had been overseas planning and supporting anti-government activities in Oromo.

    Applicant 2

13. Applicant 2 told the Tribunal she had obtained [a Scholarship] to study her Master of [Subject 2] in Australia and arrived in Australia in January 2015 to complete those studies at [University 3] Brisbane. She had prior to the scholarship been working for [Employer 2] as [a specialised Occupation 3] since 2008 in Ethiopia after having completed a Bachelor of [Subject 2]. She completed her Australian studies later in 2015 and commenced her current employment in 2017 with [Employer 3] as [a specialised Occupation 3]. She stated that she is presently on maternity leave after the recent birth of their Australian born son, who is [Age] months of age.

14. She explained her fears as to returning to Ethiopia arising from her family’s connection to the Oromo Liberation Front (OLF) through her uncle who is [Age] years of age but has always been an active senior member of the OLF. As she has been in Australia where there is an active Oromo community who demonstrate, raise funds and provide support for various Oromo independence groups such as the OLF, OLA (Oromo Liberation Army) and the OFC she fears she would be arrested, detained and questioned as to her actions in Australia and what she knows of members of the Australian Oromo community and their support for the various Oromo independence organisations.

15. Applicant 2 stated that she has 2 brothers and 4 sisters still living in Ethiopia. One brother who is [Age] years of age is presently working for a foreign [company] as [an Occupation 2] and her other brother who is [Age] years of age suffers from a mental disability and is presently unemployed and living at home with her parents. Her father is a retired [Occupation 1] and her mother a retired farmer. As to her sisters, the eldest is [Age] years of age and holds a [degree] and works in that field. Her [Age]-year-old sister is presently unemployed and has a [degree]. Her [Age]-year-old sister is at university studying [Subject 2] and her youngest sister who is adopted and [Age] years old is at high school.

16. She stated that her family is of Oromo ethnicity and are all supportive of Oromo independence and/or self-government.

17. Applicant 2 stated that her father had been arrested [in] November 2015 when he had intervened in the arrest of school children by Ethiopian government security forces at an anti-government student demonstration where the Security Forces had killed some of the student demonstrators. She stated that her sister [Ms A] who is presently at university was also arrested together with many other Oromo students. She explained that as her elderly uncle had been a long-time active member of OLA her family had often been questioned as to their affiliations and/or support of the OLA and other pro-Oromo political groups. She said that she had recently been told by her family that her brother [who] is working for a foreign [company] had been arrested and detained for a week. Whilst detained, he had been questioned by the security forces as to why he has not been supportive of the government. She stated that since his release he has found his personal bank accounts have been frozen by the government as he has now been accused of transferring money to the OLF and/or OLA.

18. She explained that although there had been a change in government, she like her husband believes that the government officials who worked under the former TPLF government, continue to discriminate against the Oromo community and ensure that those who support Oromo independence and oppose the Addis Ababa Master plan will not receive government employment. She further explained that she and other pro-Oromo people will be subject to pressure being applied to any private employers who will be encouraged not to employ Oromo people who have not aligned themselves to the current federal government and/or the TPLF officials in the local government. Her fears are that as her family is viewed as being supportive of the OLA and other Oromo based anti-government organisations she will be viewed as being supportive if not actively involved in anti-government and pro-Oromo activities both in Ethiopia and here in Australia. In this regard she highlighted to the Tribunal that her father had recently been questioned by government officials as to why she had not yet returned to Ethiopia after her studies and what was she doing in Australia and who she was associating with in Australia.

    FINDINGS AND REASONS

19. The 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 applicants meet the criteria for the grant of protection visas.

    Country of reference

20. According to the protection visa applications, the applicants claim to be citizens of Ethiopia and provided copies of their passports, birth certificates and a marriage certificate to the department. Based on this material the Tribunal finds that the applicants are who they say they are and citizens of Ethiopia. Ethiopia is therefore the receiving country for the purpose of assessing the applicants’ claims for protection.

    Analysis

21. 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.

22. 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.[8] 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.[9] This is consistent with the established proposition that it is for the applicant to make his or her own case.[10]

    [8] Section 5AAA of the Act.

    [9] Ibid (with effect from 14 April 2015).

    [10] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

23. 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. 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.

24. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[11] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[12] 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.

    [11] Fox v Percy (2003) 214 CLR 118.

    [12] 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.

25. 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.[13] A similar approach is taken in the Department’s Refugee Law Guidelines[14] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[15] which provides useful guidance for this Tribunal.

    [13] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [14] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines).

    [15] UNHCR, re-issued February 2019 at [203]–[204].

    Political opinion – imputed anti-government (Ethiopia) and pro-Oromo profile

26. The Tribunal accepts that the applicants are of Oromo ethnicity and that they hold pro-Oromo and anti-Ethiopian government political views in particular as to the issue of Oromo self-determination and the Addis Ababa Master Plan involving the acquisition of Oromo farmland for the urban expansion of Addis Ababa. It is also accepted that their political views have been long standing and arise from their Oromo upbringing and are generally shared by their family who remain in Ethiopia.

    Applicant 1 – findings

27. The Tribunal notes that applicant 1 replied to the Tribunal’s questions without hesitation and when detail was sought from this applicant, he immediately provided such detail in a forthright and direct manner. Given the manner of this applicant’s responses to the Tribunal and the level of detail he provided as to his experiences in detention and the manner and frequency of the assaults he suffered, the Tribunal finds applicant 1 to be a reliable and credible witness as to his political views, his past arrests and his fears.

28. As such the Tribunal also accepts that applicant 1 has been arrested by the Ethiopian authorities on 3 occasions where he was subsequently detained and questioned and that on 2 of those occasions, 2002 and 2004 he was tortured by way of being punched, kicked and beaten with a metal pole and batons on numerous occasions whilst held in custody at the [Building]. The Tribunal accepts that applicant 1 was arrested as a result of his involvement in anti-government (Ethiopia) and pro-Oromo demonstrations and an Oromo celebration where he and others were expressing their pro-Oromo and anti-government political views which he has held and expressed since childhood and which he continues to express through his membership with the OFC and his [Social media] likes, posts and commentary on the Ethiopian government’s treatment of the Oromo people and his pro-Oromo political views.

29. In this regard, the Tribunal finds applicant 1’s [Social media] postings while in Australia to be consistent with the expression of his past political views in support of Oromo independence and/or self-government and that they would be viewed as an expression of anti-government (Ethiopia) sentiment and in support of the OFC. Given the long held views of applicant 1 and his expression of same over time as to Oromo independence and/or self-government the Tribunal being cognisant of the provisions of s 5J(6) of the Act as to the meaning of a well-founded fear; acknowledges that the Tribunal must disregard conduct in Australia unless satisfied it was other than for the sole purpose of strengthening refugee claims. As to applicant 1’s posting on [Social media] in Australia the Tribunal is satisfied that such postings were made in the expression of and in accordance with his long held political and cultural views and not for the sole purpose of strengthening his refugee claims.