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

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).
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.
The applicants filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 5118
Decision Date: 21 December 2022

CaseChat Overview and Summary

This matter concerned an application for protection visas by two applicants, who are of Oromo ethnicity and members of an opposition political party in Ethiopia. The applicants claimed they had a well-founded fear of persecution due to their ethnicity and political opinion, and that there was a real chance they would be persecuted if returned to Ethiopia. Alternatively, they argued that there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, they would suffer significant harm. The court was required to determine whether the applicants met the criteria for a protection visa under the *Migration Act 1958* (Cth), specifically whether they had a well-founded fear of persecution for one of the five prescribed reasons, or whether they faced a real risk of significant harm upon return to Ethiopia.

The court considered the applicants' claims, including the first applicant's history of arrest, torture, and detention in Ethiopia for participating in demonstrations and his membership in the Oromo Federalist Congress (OFC). The court also took into account country information regarding the recent deterioration of security and political tensions in Ethiopia, particularly concerning the Oromo population. The legal principles applied included the assessment of a "real risk" of significant harm, which the court noted imposes the same standard as the "real chance" test for a well-founded fear of persecution. The court also had regard to Ministerial Direction No. 84 and relevant guidelines and country information assessments.

The delegate had previously refused the protection visas, finding that while the applicants were of Oromo ethnicity and held anti-Ethiopian political opinions, the first applicant was not considered a high-profile political dissident and his political profile was not enduring. The delegate was not satisfied that the applicants were refugees or persons in respect of whom Australia had protection obligations. However, upon review, the court found that the evidence, including the applicants' detailed claims and recent country information, indicated a real chance of persecution or significant harm. Consequently, the decision under review was remitted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 protectionApplicant 1 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. 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. 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. 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].

Decision

Reasons for decision

The applicants (1 and 2) were interviewed by the Department on 11 January 2019.Delegate’s decision 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 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. 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

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF Claims and evidence The issues in this review 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 protectionApplicant 1 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. 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. 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.